Defrey & Radnor (No. 2) [2021] FamCAFC 139

Background

Following three years of contested litigation, the parties resolved parenting matters by consent in 2015.  The child of the parties’ relationship, X, was three years and eight months old at the time final parenting orders were entered into.

Among other things, the final orders provided for X to live with his mother and to spend four nights per fortnight with his father during the school term.  The orders contained a graduated regime for X to spend increasing time with his father during school holidays.

In 2018, the father commenced agitating for a change to the arrangements provided for in the orders.  Among other things, he sought for X to spend an additional night in his care each fortnight.  The mother would not agree to any change and insisted upon strict compliance with the orders.

First Instance Decision – Defrey & Radnor [2020] FCCA 713

In November 2019, the father filed an application to vary the final parenting orders.  He sought (as one of several alternative positions advanced) to increase his time with X by one night per fortnight, and to alter provisions in the final orders concerning holiday and changeover arrangements, as well as extra-curricular activities and international travel.

The central premise of the father’s argument was that X was older (he was 8 ½ years old by the time the father filed his application), more mature and more readily able to deal with transitions between households than he was when the final orders were made.  The father’s evidence was that behavioural issues displayed by X at the time of the final orders had abated, and the relationship between the father and X had improved.  Colloquially put, the father’s contention was that X had “outgrown” the final orders.

In his affidavit, the father described his application as seeking only “a slight increase in time” and “a slight variation to the orders”.  This aspect of the father’s evidence was described as an “own goal” by the primary judge.  The father’s case appeared to be put on the basis that because he was only seeking a minor variation to the orders, this somehow lessened the threshold that had to be overcome by the father in seeking to have the court revisit the orders.

The mother opposed the father’s application on the basis that there had been no material change in circumstances that would warrant the court revisiting the final orders.  The mother relied on the well-settled rule established by Rice & Asplund [1978] FamCAFC 128 and refined in subsequent cases.  That rule is a manifestation of the ‘best interests’ principle enshrined in the Family Law Act 1975 (Act) that applies in all parenting proceedings. 

While the court is required to have regard to all of the ‘best interests’ factors contained in section 60CC of the Act, the Rice & Asplund test is particularly concerned with section 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child.  Axiomatically that is because unless other section 60CC considerations are more weighty, it is not in a child’s best interests to be the subject of repeated litigation between his or her parents.

The primary judge held that the changes to X’s age, development and maturity were all reasonably foreseeable at the time the final orders were made, and were appropriately recognised in the graduated increase in X’s time with his father provided for in the orders. 

The primary judge was not satisfied that the father had established any material change in circumstances, and dismissed the father’s application.  Given the relatively minor nature of many of the issues in dispute, the primary judge was critical of the parties for bringing these matters before the court.  In relation to these minor matters, the primary judge made orders for the parties to attend mediation and, in the absence of agreement, arbitration to determine these matters.

First Appeal Judgment – Defrey & Radnor (No. 1) [2021] FamCAFC 67

The father appealed the first instance decision.  His appeal was determined by the Full Court comprised of Ainslie-Wallace, Watts and Tree JJ.

The father’s appeal was allowed in part because (unlike a financial proceeding) the primary judge did not have the power to order the parties to attend arbitration in a parenting proceeding.  The primary judge had declined to determine what he considered to be the trivial aspects of the father’s application based on the erroneous understanding that these matters could be determined at arbitration if the parties were unable to reach agreement at mediation.  This was not the case, and these were properly matters for determination by the court.

The proceeding was otherwise adjourned to enable the parties to make submissions regarding the future conduct of the appeal, namely whether the Full Court was to re-exercise the primary judge’s discretion or whether the proceeding was to be remitted for rehearing at first instance.

Second Appeal Judgment – Defrey & Radnor (No. 2) [2021] FamCAFC 139

By the time the proceeding came back before the Full Court, the parties were ad idem that the Full Court was to be asked to re-exercise the discretion of the primary judge.

In dismissing the father’s application to vary the final orders, the Full Court readily embraced the reasoning of the primary judge.  The father had not discharged the onus of establishing a change in circumstances sufficient to warrant the court varying the orders as sought by him.  No lesser standard applied because the father only sought minor changes to the final orders.

Takeaway

Irrespective of whether a party seeks a wholesale variation or only minor changes to final parenting orders, it is incumbent on that party to satisfy the court there has been a significant change in circumstances and that the other best interests factors outweigh the harm to the child in becoming embroiled in further litigation.

The fact that the child who is the subject of the orders is older and more mature will not of itself be sufficient to satisfy the court to re-visit and vary final parenting orders.  The change must be significant and unanticipated, and the best interests factors must favour reconsideration of the orders.

Prior to embarking upon an application to vary final parenting orders that are no longer appropriate, please feel free to contact one of our team of specialist parenting lawyers to discuss whether the circumstances are likely to warrant intervention by the court.

Defrey & Radnor (No. 2) [2021] FamCAFC 139