Father Appeals from Parenting Orders And Further alleging that there was a Change in Circumtances

Stern & Colli [2022] FedCFamC1A 95 (30 June 2022)

Orders were made by a judge of this Court dismissing the appellant father's application to review a decision of a senior registrar which, in turn, dismissed his application to vary certain parenting orders.  The appellant father appeals from such orders.  The Court, in determining whether to grant the appeal, relied upon  the Rice & Asplund test. 

Facts:

The mother and the father are both working professionals and commenced a relationship in September, 2014 and separated in November, 2016.  They have a child X, who was born in 2017.  The father remarried after his separation from X’s mother and has two other children with his wife.  His wife has no other children other than theirs.

Following a five-day trial in the Federal Circuit Court of Australia (as it was then known), final parenting orders were made on 8 April 2020 by Deputy Chief Judge Mercuri.  Those orders were amended on 25 September 2020 to correct some clerical errors.  At the time of the trial, the mother and X lived in Town A and the father lived in Suburb G, Melbourne.  There was a distance of approximately 280 kilometers between their respective homes, or about four hours traveling time by road.

The final orders provided for the father and the mother to have equal shared parental responsibility for X, for her to live with her mother and for her to spend time with her father according to a graduated regime that changed upon the passing of certain milestones in X’s life.  Initially, the time X would spend with the father was each Wednesday for seven hours and each alternate weekend from 10.00 am Saturday to 3.00 pm Sunday. When she turned three the alternate weekend time was extended so as to commence at 3.00 pm on Fridays. At that point, particular provisions were introduced for special days at Easter and Christmas.

The regime changed again when X turned four years old so as to introduce periods of three consecutive nights with the father during school holiday periods.  The regime of time changed again upon X commencing her foundation year of education in 2022.  At this point, the seven hours of time on Wednesdays ceased but the alternate weekend time continued.  Longer periods of time between X and the father are introduced to the holiday arrangements.  Upon X commencing grade one in 2023, the holiday time is to increase further such that by the end of grade one X will be spending more or less equal time with her parents during her school holidays.

Both parties filed applications to vary them – the father sought the correction of what he contended were errors in the orders and the mother sought a variation to ensure that the orders were workable during restrictions imposed by reason of the COVID-19 pandemic.  In the meantime, the father, his wife, and their two children moved to Town K, such that the traveling time between his home and X’s home was reduced to about 40 minutes.  That prompted him to file another Initiating Application on 7 September   2020 in which he sought orders that X continue to live with the mother but that she spends one night each week and every alternate weekend with him.  His application also sought “leave to particularise final orders sought 14 days prior to the final hearing”.  He sought a range of interim orders which relevantly included an order that X spend time with him every Tuesday and Thursday from 9.00 am to 5.00 pm, each alternate weekend from 9.00 am Friday to 5.00 pm Sunday and otherwise holiday time as set out “in the 8 April 2020 orders”.

He sought some other orders, including the appointment of a single expert “to produce a report into which time arrangements will be in the best interests of the child going forward.”  In her response to that application filed on 12 October 2020, the mother sought an order dismissing the father’s fresh application “under the rule of Rice v Asplund”.  She also sought by way of interim orders what appear to be variations to the final parenting orders concerning the time spending arrangement for Christmas, changeover arrangements more generally and the Skype calls between the father and X.  The appeal instituted by the father against the final parenting orders was dismissed on 18 February 2021.

Issue:

Whether or not the father's application should be granted. 

Applicable law:

Family Law Act 1975 (Cth) Pt VII - provides that there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.

Analysis:

Counsel for the father submitted that the most significant change in circumstances was the move by the father to be closer to where X lived.  The significance of that move was said to lie in the fact that the much smaller geographical distance between the parties opened up the possibility that X might spend substantial and significant time with her father once she commenced school.  That possibility was foreclosed by the distance that existed between her home and her father’s household when the final orders were made in the Federal Circuit Court and it is a matter which determined the extent of the orders for the time between the father and X when she commenced school.  

Whilst it might be seen that the primary judge identified the asserted changes in circumstances said by the father to bear the necessary quality to justify further litigation about the April 2020 parenting orders, he did not go on to consider whether those changes in fact bore the requisite quality.

Conclusion:

The appeal is allowed.  The orders of the Federal Circuit and Family Court of Australia (Division 1) made on 17 December 2021 are set aside.  The proceedings are remitted for hearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.