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Sarah Middleton[*]
In July 2006, the Family Law (Shared Parental Responsibility) Act 2006 (Cth) ('the SPA') came into operation, effecting wide-sweeping reforms to the Australian family law system. The reforms included amendments to Part VII of the Family Law Act 1975 (Cth) ('the FLA') that seek to promote parental involvement with children and arrangements for equal or substantial shared care.[1] While these changes apply to new orders made on or after the commencement of the legislation,[2] in the case of applications for variation of existing orders, the changes only apply if the applicant can show some significant change in circumstance since the time of the making of the original order. This threshold requirement of changed circumstances is known as the rule in Rice and Asplund ('the Rule').[3] This Rule has been in operation for more than 25 years and its continued application has been expressly provided for in Schedule 1 Part 2 of the SPA. In this way the Government, acting upon concerns expressed by the Family Court,[4] hopes to contain any increase in applications for variation.[5]
This state of affairs is likely to provoke criticism from men's groups, as well as individuals, who will argue that the application of the Rule goes against the general spirit of the SPA reforms and, in particular, the object of ensuring that children have the benefit of meaningful involvement with both parents to the maximum extent consistent with their best interests.[6] Put simply, the argument will be that a policy which encourages parental involvement and time with their children does not sit well with a Rule that only enables a court to increase a parent's involvement and time if there has been an intervening change of circumstance.
Anticipating this debate, this article explores the question of whether the policy objective of encouraging equal or substantial time-sharing can, or cannot, be reconciled with the requirement to establish changed circumstances where an application for variation is sought. In order to address this question some background understanding of the nature and operation of the Rule is required. Accordingly, and in the absence of any prior academic literature describing the Rule,[7] Part I commences by explaining how and why the Rule applies; the reported case law principles that govern its operation;[8] and the nature of the relationship between the Rule and the merits of a case. Part II then examines the SPA provisions for shared-care and their underlying policy justification; why the Rule will continue to apply to applications for variation; and whether this continued operation can be justified in light of the statutory mandate in making parenting orders to have regard to the best interests of the child as the paramount consideration.
When a marriage or de facto relationship breaks down, arrangements need to be made for the future parenting of any children of the relationship. Parents unable to arrive at an agreement may seek the assistance of the Family Court.[9] Their dispute may concern with whom the child is to live; the times at which or degree to which a child is to spend time with a parent; and/or who is to make decisions in the short term and long term best interests of the child (formerly 'residence', 'contact' and 'specific issues' respectively).[10] In such cases the Court may be called upon to make a 'parenting order'.[11] Even in cases where parties are able to negotiate their own arrangements, they may wish to formalise their agreement by seeking parenting orders by consent.[12] In both situations, the Family Court has the power to make such parenting order as it considers 'proper'.[13] Although the discretion conferred on the Court is very wide, it must be exercised subject to the requirement that it 'regard the best interests of the child as the paramount consideration'.[14] The FLA sets out a number of matters to assist the Court in assessing the best interests of the child.[15] The Court's discretion must also be exercised having regard to the statement of objects and principles contained in s 60B.
Parenting orders are never final. They can be varied either with the consent of the parties or by court determination.[16] However, where a variation is sought in contested proceedings, whether for interim or final orders, a threshold test is applied.[17] This test prescribes that a change of circumstances since the making of the most recent parenting orders must be shown before the Court will consider granting any variation. This Rule applies whether the earlier orders were made after a defended hearing or made by consent,[18] and is aimed at preventing a party from re-litigating simply in the hope of obtaining a more favourable exercise of discretion.[19] Where the Court is satisfied that there is a new factor or a change in circumstances, then the parenting issue is determined in the ordinary way: the Court must weigh up the factors for and against the proposal of each party, having regard to the best interests of the child as the paramount consideration.[20]
The threshold test was first set down in the 1976 decision of Hayman and Hayman[21] and was subsequently affirmed in the 1979 decision of Rice and Asplund[22] from which the Rule now takes its name. Chief Justice Evatt, with whom Pawley SJ and Fogarty J agreed, stated the Rule in these terms:
[The court] should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …[23]
Rice and Asplund itself provides an example of a sufficient change of circumstances justifying a variation of orders. In October 1975 an order was made granting custody of the three year old daughter of the marriage to the father, Mr Rice. Approximately nine months later, the Court acceded to the wife's application for variation, giving her custody, with reasonable access to the father. In dismissing the husband's appeal the Full Court found that the trial judge had correctly approached the issue on the basis of the need to establish a significant change in circumstances and had listed the factors which he considered relevant to that issue. In this regard the trial judge had noted that the wife had stabilised her accommodation, had married Mr Asplund and that the child was to commence schooling 'which made the previous access orders unworkable and unrealistic'.[24]
In Rice and Asplund the Rule was raised in the context of an application to reopen the question of where the child was to live. The Rule applies equally to applications to vary other sorts of parenting orders.[25] The type of variation sought, however, might affect the nature of the evidence required to satisfy the threshold and also the nature of the evidence that the applicant is capable of tendering.[26] Accordingly, the Court might find a sufficient change of circumstances to reopen the question of how much time a child spends with a parent but not the question of with whom the child is to live.
Cases after Rice and Asplund have emphasised that the Rule operates to protect the child, whose best interests are not served by repeated applications to vary orders when there are no new circumstances to be brought before the Court. In Freeman and Freeman,[27] for example, the Full Court explained:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. … [O]nce the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being.[28]
The Rule, therefore, is seen as requiring a balancing exercise between two objectives: first, protecting children from the effects of ongoing litigation; and secondly, ensuring that where circumstances have changed that may have a bearing upon the best interests of the child, a fresh assessment of those interests is made. Notably, with regard to the first objective, the interests of the child are treated as the paramount but not the sole consideration. Rather, the interests of the parents and the public interest in preventing frequent applications for parenting orders in relation to a particular child are also relevant.[29]
With respect to the second objective, the assessment of the child's best interests is far more individualised. Nonetheless, whether the Court finds a material change of circumstances such as to warrant re-opening litigation or finds no such change and dismisses the application for variation, the best interests of the child are regarded as providing the justification for such course.[30]
As seen, the Rule in Rice and Asplund, places an onus on an applicant who seeks variation of earlier parenting orders to satisfy the Court that there has been a change in circumstances, since the original order was made, sufficient to require the matter to be re-visited by the Court.[31]
There are two broad categories of change that may be relied upon to satisfy the Rule. First, the applicant may show some material factor that was not disclosed when the previous orders were made.[32] An example might involve non-disclosure by one parent of the other parent's abusive behaviour; family violence being a matter of importance when considering a child's best interests.[33] Relevant non-disclosure is more likely to be made out in cases where parenting orders were made by consent because there is a greater possibility of the Court being put in a position of not being made aware of all relevant matters.[34]
Secondly, and far more commonplace in the reported case law, the applicant may put forward evidence of new circumstances that have arisen since the making of the original orders. In this regard, the change in question can be made up of component parts or can rely, instead, on one single but major change. However, it seems that a cumulative basis for change 'cannot be made simply by weight of numbers of the changes alleged to have occurred'.[35]
The type of change required has been variously described. Relevant formulations include: a 'substantial change';[36] 'startling new circumstances';[37] 'sufficiently weighty new facts and circumstances';[38] and 'material changes in circumstances'.[39] Despite the differing terminology (none of which elucidates on its face the type and extent of change required), the various formulations are all directed — in substance — at the applicant establishing a change of circumstances that warrants consideration of whether the existing orders should be altered.[40] In King v Finneran Collier J explained the Rule in these terms:
The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.[41]
At the trial judge's discretion, the question of changed circumstances may be dealt with as a preliminary issue.[42] If changed circumstances are found to be lacking, the application for variation can be summarily dismissed,[43] provided the Court complies with the requirement of procedural fairness.[44] Alternatively, the trial judge may proceed to a full hearing and determine the question of changed circumstances at the conclusion. This may be appropriate in cases where it is difficult to determine whether there has been a change of circumstance without going into the merits of the application.[45] This issue is given separate consideration in the next section.[46]
Whether the trial judge determines the question of changed circumstances as a preliminary issue or proceeds to a full hearing, the findings on that matter should be addressed by the judge in his/her reasons for decision.[47] Furthermore, the trial judge must take into consideration any prior decision of the Court and reasons for it,[48] although he or she is not bound by the previous judge's assessment of the parties or views as to the best interests of the child.[49]
A trial judge must determine whether the threshold test is met having regard to circumstances as they exist at the date of hearing, rather than at the date the application was made.[50] This may benefit the applicant for variation, as parenting matters can take many months, if not years, to reach final hearing[51] and the passage of time itself increases the likelihood of change. A change that is 'imminent' at the date of hearing may also be sufficient to satisfy the threshold test.[52] Still on the issue of time, there is no fixed minimum period in which a question of changed circumstances can or cannot be reconsidered by the Court.[53] However, generally the shorter the duration from the making of the original order, the more difficult it will be to satisfy the Court of a sufficient change of circumstances. This is especially so if the original orders were made following a contested hearing.[54] Conversely, a variation sought many years after the original orders were made is likely to be assisted by virtue of the fact that 'the circumstances of children, generally speaking, are likely to change as those children grow up, and their psychological and physical needs change from time to time'.[55] Nonetheless, the relevance of this factor in establishing a change of circumstances should not be overstated. As noted by Evatt CJ in Zabaneh and Zabaneh:[56] 'The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account'.[57] Moreover, the passage of time, while potentially assisting the applicant to demonstrate changed circumstances, may equally help the respondent to show a long standing status quo. This factor may work in the respondent's favour when it comes to determining the actual merits of the application.
Where the changes sought to existing orders are of a minor nature[58] it might be expected that the degree of change required to satisfy the threshold test would be lowered. In fact, the reverse is true. The less important or less far reaching the proposed change, the more important it is to demonstrate a change of circumstances.
It may also be more difficult to satisfy the threshold where the change of circumstances relied upon by the applicant was foreseen or even just foreseeable at the time the original orders were made. The logic behind this approach is that the trial judge (or, in the case of consent orders, the parties) made the orders notwithstanding the possibility of such change occurring. An example is provided by King and Finneran,[59] where the husband's application for variation failed for want of changed circumstances, notwithstanding his remarriage and the pending birth of a new baby. In reasons for decision, the trial judge noted that the husband's second wife was already involved in the husband's life when the original orders were made.[60] However, the case law is not totally consistent on this point. In Rice and Asplund,[61] Evatt CJ aptly observed that 'the court cannot determine the welfare of the child by applying some sort of estoppel rule'.[62] Her Honour accepted the relevance of the wife's remarriage in establishing changed circumstances, notwithstanding the father's argument that the mother's remarriage was a probability foreseen at the time of the original orders, noting that her future at that time had been 'fraught with uncertainties, most of which have now been resolved'.[63]
Taking the Rule at face value, it might appear that the merits (or strength) of the applicant's case for variation should have no influence on the threshold determination. The threshold test focuses squarely on the question of changed circumstances: thus, if the threshold is satisfied, the Court then decides the merits of the application based on the best interests of the child; if the threshold is not satisfied, the Court dismisses the application. However, this is arguably an over-simplification of the process involved and certainly the Court has rejected the suggestion that to apply a threshold test effectively dissects children's matters into 'threshold' and 'merit' components.[64] In reality there is little doubt that the merits of a case can influence the way in which the threshold test is applied and even whether it is ultimately satisfied. This appears to stem from the fact that the issues of change and merit are often inter-related: the matters relied upon in arguing that a variation of orders is in the best interests of the child are the same matters relied upon to demonstrate a change of circumstances. One example would be the remarriage of the respondent and the child's poor relationship with that new spouse. Another example would be the child's maturity and altered views on parenting arrangements. This inter-relationship was recognised by the Full Court in Bennett and Bennett[65] where, in affirming the discretion of a trial judge to determine the threshold question at the end of a full hearing, it noted that in some cases 'it is not easy to determine the threshold question without going into the merits of the matter'.[66]
The need to determine the merits of the case before addressing the threshold question seems most likely to arise in cases where the alleged change is based on disputed actions and attitudes of the parties and/or the children, rather than on some easily provable objective factor such as a proposed relocation. Conversely, an application for variation is most likely to be summarily dismissed for failing to satisfy the Rule where the applicant's case is clearly without merit. For example, in Croker v Fields,[67] the father raised the fact that he had cared for the child on additional nights outside the scope of contact orders (approximating two weeks in total) in seeking to re-open the issue of residence. The trial judge dismissed his application, noting that the evidence fell 'far short of a sufficient change in circumstance' and that embarking on a hearing would be 'pointless' and inevitably involve dismissing his application.[68] In cases such as this, the same factors that make the case unmeritorious result in a failure to satisfy the Rule: there is no convincing reason presented to justify disturbing the existing status quo because there has been no material change in circumstances since the original orders were made.
However, the most striking example of the potential influence of merits on the application of the threshold test concerns the situation where the applicant's case for variation is successful in the absence of any change of circumstances. In Bennett and Bennett[69] the Full Court conceded that in this situation, the threshold test can – indeed must – give way to the best interests of the child. Their Honours said:
[I]f … the trial Judge comes to the conclusion … that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion upon the basis that no change in circumstances had been shown.[70]
While logic dictates that this is the correct approach, it is problematical in that it appears to result in the Rule being bypassed. This in turn generates internal inconsistency in the application of the Rule along these lines: a change of circumstances is required before the Court can vary existing parenting arrangements in the best interests of the child, but if the best interests of the child mandate a variation, it can be made without the need for changed circumstances. Notably, there are no reported cases, other than Bennett and Bennett, where the Court has varied orders in the absence of a proven change. Moreover, the Full Court in that case doubted whether it would have arrived at the same decision as the trial judge on the facts. It seems that where the merits of a case mandate a variation, it will always be possible for the Court to find a change of circumstances, even if merely by the passage of time. In this way, the problem of internal inconsistency is, and apparently has been, generally avoided. The problem, however, continues to exist and serves to highlight an apparent conflict between the Rule and the paramountcy principle in applications for variation. This conflict seems set to become the subject of greater scrutiny following the introduction of the SPA with its emphasis on facilitating shared care and is explored further in the next Part of this article.
The SPA represents 'the most significant reform of the family law system in 30 years'.[71] The amendments it effects are part of the Government's bold new reform agenda in family law which aims to bring about a cultural shift in how family separation is managed: away from litigation and towards cooperative parenting.[72] The amendments underpin a package of measures announced in the 2005 Budget estimated at a cost of $397 million over four years, and which also include the massive expansion of support services and the planned roll-out of new Family Relationship Centres ('FRCs').[73] The amendments inter alia: recognise the need for a cooperative approach to parenting; strengthen the existing enforcement regime; provide for a less adversarial approach to be adopted in all child-related proceedings; clarify and strengthen the role of the independent children's lawyer; repeal and replace the existing provisions dealing with state family violence orders and parenting orders;[74] and change the terminology of the Act to remove references to 'residence', 'contact' and 'specific issues orders'. Most importantly, in the context of this article, the amendments promote the object of ensuring that children have a right to have a meaningful relationship with both their parents and that parents continue to share responsibility for their children after they separate. This is effected by changes to the substantive provisions of Part VII which seek to maximise, if not equalise, the time that a child spends with both parents.
Under the newly amended Part VII, a presumption applies to the making of parenting orders that it is in the best interests of the child for parents to have 'equal shared parental responsibility'.[75] Where this presumption applies, the Court must consider making an order for the child to spend equal time with each of the parents, provided that this is reasonably practical and in the child's best interests.[76] In evaluating this, the 'benefit to the child of having a meaningful relationship with both of the child's parents' will be a 'primary' consideration.[77] The importance of this consideration is further re-enforced by amendments to s 60B which will provide that one of the objects of Part VII of the FLA is to ensure 'that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child'.[78] Where equal time is not appropriate, the Court must consider an arrangement for 'substantial and significant time' with both parents.[79] This refers to time that enables the parent to be involved in the child's daily routine, as well as occasions and events of significance to the child or the parent, and must include days that do not fall on weekends or in school holiday time.[80]
The SPA's encouragement of equal or substantial time-sharing can be seen as part of 'a shift in Western family law more broadly … towards a redefinition of the "best interests of the child" to include an emphasis on continuity of contact with both parents after separation.'[81] The policy is based on an assumption that, other than in cases involving persistent conflict, violence or abuse, it is in a child's best interests to have meaningful involvement with both parents. Thus a 2003 Report of the House of Representatives Standing Committee on Family and Community Affairs argued that '[t]o share all the important events in a child's life with both mum and dad, even when families are separated, would be an ideal outcome'.[82] Whether or not the policy is supported by research is debatable. While studies show that children benefit from meaningful involvement by both parents in their lives, the key factor in this appears to be the quality of the child's relationship with the parents rather than the quantum of time spent with them.[83] Yet as Smyth rightly concedes 'an emotionally close and warm relationship requires time to sustain it'.[84]
The amendments introduced by the SPA have come about against a backdrop of Australian empirical research suggesting that there has been 'inadequate opportunity for both parents to have meaningful involvement in the lives of their children after separation'[85] and 'a high level of dissatisfaction around post-separation parenting — especially for non-resident fathers'.[86] This research indicates that after separation only 6 per cent of children (at most) spend at least 30 per cent of nights of the year with their father[87] and over 30 per cent rarely or never see their father.[88] Accordingly, mothers remain the predominant caregivers for children in Australia. At the same time, a sizeable proportion of separated and divorced parents would like to see more father-child contact occurring; namely, 75 per cent of non-residential fathers; and 40 per cent of resident mothers.[89]
Interestingly, statistics show that men are more likely to obtain residence of the child when the matter goes to trial.[90] A survey conducted by the Family Court of Australia found that sole residence was awarded to mothers in 78 per cent of consent applications, in 76 per cent of cases that settled after commencement of litigation, and in 69 per cent of cases which were tried. Similarly, men were more likely to obtain contact (at the level of 51-108 days per annum) if they litigated. Contact at this level was awarded in just over 40 per cent of consent applications. This went up to 50 per cent for settled matters and over 70 per cent when determined by a judge. These figures have been explained on the basis that out of court settlements are 'influenced by community perceptions, by experience of women as primary carers and by perceptions and outcomes in court decisions'.[91] Particularly influential appears to be the commonly held view that mothers usually obtain sole residence and fathers, at best, can expect alternate weekends and school holiday contact; the so-called '80-20' model.
Whether the reforms to Part VII will alter legal and community perceptions and translate into more creative parenting arrangements including greater shared-care remains to be seen. However, doubt has been voiced in light of the particular requirements, both 'relational and structural' that generally need to exist for equal or substantial shared care to operate effectively.[92] These include: a satisfactory history of cooperation between the parents; adequate housing; geographical proximity between the two households; absence of contra-indicators such as violence and abuse; a history of shared performance of parenting functions; and family friendly flexible work practices. More fundamentally, Altobelli questions whether the low level of shared parenting after separation is attributable to law or legal process or, rather, 'social phenomena' that are 'less likely to be influenced by law'.[93] In this regard he points to data which reveals that parents of either gender, who have re-partnered spend the least time with their children.[94] Similarly, Smyth, Caruana and Ferro argue that 'family dynamics in tandem with demographic factors temper the form that parent-child contact takes' with relocation, repartnering and residual bad feelings emerging as key factors in this.[95]
While the new reforms may, or may not, effect post-separation patterns of parenting, it seems likely that they will bring about an increase in applications for variation by parents (predominantly fathers) encouraged to pursue more time with their children than they are afforded under existing orders.
Prior to the introduction of the Act, the Family Court voiced concerns of this nature to a Senate Committee inquiry, drawing attention to the potential adverse impact on judicial resources and hearing times.[96]
The Senate Committee found substance in the Court's concerns and recommended that the Government provide sufficient resources to address any such increase.[97] It rejected a suggestion from the Attorney-General that it should be left to the Court to clarify the law on Rice and Asplund in the first application for variation to come before it,[98] describing this as 'an unwarranted burden on court resources' and 'unfortunate … given one of the key objectives of the bill is to reduce litigation in child-related proceedings'.[99] The Government responded noting its intention to 'monitor the impact on court resources and make decisions about resourcing in the context of the overall Commonwealth budget and through the ongoing evaluation of the reforms.'[100]
It also indicated that a community education campaign will include information on the impact of the legislative changes on existing parenting orders.[101] Most significantly, however, it moved an amendment to the SPA in the Senate inserting express reference to the impact of the reforms on applications for variation.[102] Schedule 1, Part 2, Item 44 now provides:
The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement.
Note: for the need for changed circumstances, see Rice and Asplund [1978] FamCA 84; (1979) FLC 90-725.
This Item makes it clear that the SPA is not intended to operate so as to allow previously resolved parenting orders to be reconsidered purely on the basis of the changes to the legislation, and that a threshold test continues to apply. It is likely to prove most useful to self-represented litigants,[103] especially given that the FLA does not give any indication of the need to establish changed circumstances in an application for variation. [104]
From the point of view of the legal profession and judges, item 44 does little more than confirm what would otherwise have been determined through legal reasoning. In the first place, legislative change is not the type of change contemplated by the Rule, which is directed instead towards factual circumstances in the parents' or child's life which have the potential to impact on the child's best interests. Hence the Senate Committee in its deliberations noted that 'a change in the rules is unlikely to amount to a relevant change in individual party's circumstances to warrant a court amending a parenting order.'[105]
In the second place, any argument that the threshold test would — in the absence of Item 44 — be unauthorised by the new provisions and could not be used to summarily dismiss an application owing to the clear mandate to have regard to the best interests of the child would have been unlikely to carry weight with the Family Court. Similar arguments, based on earlier permutations of the provisions, have been consistently rejected.[106] In view of this history, if such an argument is to succeed (a possibility explored in the next section[107]) it seems likely that it will require a High Court appeal challenging the Rule.
In view of the continued application of the Rule, the reforms implemented by the SPA will undoubtedly prove more beneficial to those who do not yet have parenting orders in place. Conversely, those with existing parenting orders will be less likely to be able to obtain an order for increased parental involvement. Despite the policy drive towards encouraging equal or substantial time sharing, these applicants must first establish a sufficient change of circumstances. Moreover, the Court will continue to reserve the right to summarily dismiss cases where the threshold is not met, without assessing the merits of the application.
At face value the application of the Rule goes against the general spirit of the SPA reforms and in particular the objective of ensuring that children benefit from having parental involvement to the maximum extent consistent with their best interests.[108] As suggested at the beginning of this article, this is likely to prove unpopular with individuals seeking variation and likely to provoke criticism from men's groups.
It is possible to anticipate two likely counter-responses to this criticism. The first, promulgated by the Government, will be that the introduction of FRCs will provide a more 'family friendly' alternative to returning to court to seek a variation.[109]
In this way, it will be argued that the problem is minimised. Indeed, even on current figures only about 6 per cent of cases reach final hearing[110] and the role of legal principles in non-legally assisted settlements has been doubted.[111] There are, however, difficulties with this argument. First, the efficacy of the Government's new family dispute resolution processes, as a means of reducing litigation, is yet to be tested. Secondly, while only 6 per cent of cases reach final hearing, a greater percentage of cases than this invoke court processes or legal advice. In these instances, legal principles are likely to be more influential in terms of outcome, with parties bargaining in the so-called 'shadow of the law'.[112] Thirdly, even if only a small number of people will confront the Rule in court or in legal negotiations, this does not justify the operation of the Rule if it is flawed in principle. It is also worth noting that negotiated settlements tend to result in lower father-child contact. It is unclear whether community perceptions of shared care will counteract this trend. Dewar and Parker argue that such perceptions can 'have powerful effects on inter-party negotiation' and become an 'engine of change'.[113] Alternatively, it is possible that high expectations on the part of fathers seeking more time with their children will result in increased litigation as predicted by the Family Court. For this reason, recourse to informal dispute resolution mechanisms as an alternative to litigation, and as a means of avoiding the Rule, may provide only limited utility to parents (predominantly fathers) seeking greater involvement with their children.
The second response, promulgated by the Court, will be that the conflict is more apparent than real. The basis for this claim will be that both the policy of shared-care and the Rule have as their underlying justification the best interests of the child: the policy of shared-care is based on an assumption that it is in a child's best interests to have meaningful involvement with both parents; and the Rule is based on an assumption that it is not in the best interests of children to have repeated applications concerning them before the Court[114] but that a fresh assessment of the child's best interests is called for where there has been a material change of circumstances. In this way, rather than a factor preventing an assessment of the child's best interests, the Rule will be characterised as a factor facilitating an assessment of those interests.[115] However, while this kind of analysis reduces the appearance of conflict, the potential for it still remains. The explanation for this lies in the treatment of the Rule not as a prima facie position on the best interests of the child but instead as an absolute position. Such an analysis also fails to satisfactorily address other problems with the Rule. In particular, criticism can be directed at the application of the Rule in the context of applications to vary consent orders in the absence of any litigious history. Even more fundamentally, the concept of 'change' as a criterion for allowing parties to re-open parenting matters is open to objection as both artificial and arbitrary. These matters are elucidated below.
In the absence of change, the Rule presupposes that the child's interest in not being the subject of further litigation outweighs the child's interest in having care arrangements re-evaluated. In other words, it is given a kind of presumptive weighting. As such, the prima facie position that the Rule represents is not based on a detailed examination of the individual interests of the child in question. Rather, it reflects a policy stance that takes account of the interests of the child in a broad sense (as the paramount but not the sole consideration) and encompasses a public interest aspect.[116]
The fact that the Rule operates as a presumption is, in itself, problematical. The High Court of Australia has consistently rejected the application of presumptions in the context of parenting orders as being inimical to a proper case-by-case assessment of the best interests of a child.[117] The failure of the judiciary to characterise the Rule in this way then further compounds the problem. In treating the Rule not as a prima facie determination of the child's best interests but instead, as an inflexible rule, the Court's approach leaves only limited scope for the presumption underlying the Rule to be challenged and rebutted on the basis of an individual assessment of a child's best interests.
These limitations are most evident in cases involving summary dismissal: the dismissal of the case for want of changed circumstances leaves the applicant with little or no opportunity to show how the child's best interests may be better served by a re-opening of litigation on the question of care. Admittedly, summary dismissal is generally reserved for cases where an application for variation is clearly unmeritorious and so would be unlikely to succeed in any event. Nonetheless, to the extent that a case can be dismissed purely on the basis that there is no 'change' involves a questionable application of the paramountcy principle.
The problems of summary dismissal can, of course, be avoided by the Court determining the threshold issue after a full hearing into the merits of the case. In this scenario there are four permutations of outcome:
(i) no change is found and the case fails on its merits;
(ii) change is found but the case fails on its merits;
(iii) change is found and the case succeeds on its merits;
(iv) no change is found but the case succeeds on its merits.
In the first two scenarios the application for variation would be dismissed and in the third it would succeed. These scenarios do not present any inconsistency between the policy of equal or substantial time sharing and the Rule. However, the fourth scenario is more complex. The fact that the Rule must give way in these circumstances has been conceded (somewhat reluctantly) by the Full Court in Bennett and Bennett,[118] supporting its characterisation as a presumption. Yet, as previously suggested, the Bennett principle has not found favour with the Court in later cases.[119] Rather, judges prefer to avoid a finding that the application of the Rule is contrary to the child's best interests by determining that there has been a change; even if this requires relying on a fairly benign factor, such as the passage of time.[120]
The situation can be summarised thus: If the Court recognised that the Rule operates based on the presumed best interests of a child and can be rebutted where the actual best interests of the child lie in revisiting the question of care arrangements, then the apparent conflict between the Rule and the policy of shared-care is removed. However, to admit that the Rule operates as a presumption would most likely leave it open to vociferous High Court challenge and contrary to the paramountcy principle. So instead, the Court avoids the problem altogether by always finding a change where a case could or should succeed on its merits. In this way, however, the underlying problem is not resolved but is merely avoided.
As seen, the Rule presumes that the best interests of children lie in preventing applications for variation in the absence of change. This in turn relies on two assumptions. The first is that the existing orders reflected the best interests of the child at the time and in the absence of change must continue to do so. The second is that the parties have formerly been involved in litigation and so should be prevented from re-opening proceedings in the absence of change. This latter assumption is evident in much of the judicial dicta that surround the Rule, even though the case law makes clear that the Rule applies equally to applications to vary consent orders.
While these assumptions are defensible in cases where the prior orders were made after a defended hearing (particularly where the matters currently in dispute were considered as part of that), their application in the vast majority of cases where the existing orders were made by consent is problematic. In these cases, the Court will have undertaken no active evaluation of whether arrangements agreed upon by the parents actually serve the best interests of the child. As the Full Court in Langham and Langham[121] acknowledged, 'it would be not unusual for a Court to give effect to the … wishes of a child's natural parents in the absence of circumstances which might alert it to the fact that such wishes may not be consistent with the best interests of the child'. Given that consent orders may have been entered into at a time of post separation upheaval and uncertainty as to the future, there is every likelihood that the orders were not made upon an objective and considered evaluation by both parents of the children's long term best interests. Instead, the orders may reflect power differentials between the parties; parenting capacities at that particular time with respect to mental stability, housing or work patterns; one party's desire to reduce conflict; or even strategic manoeuvring in respect of the implication for care arrangements on financial claims and entitlements. It may be that a true child focus and ability to evaluate the children's best interests comes about for many parents at a later time, after their own lives have settled into a routine and after they have been able to experience post-separation life and observed their children within that context. Viewed from this perspective, a Rule that locks parties into arrangements consented to shortly after separation, where one or both may have no past experience with post-separation parenting, is problematic. This is exacerbated by the fact that parties may enter into consent orders without understanding that, by doing so, they are limiting their ability to seek a court based evaluation of the child's best interests at a later date. In this situation, a party will need to establish a material change and there is no guarantee that the desire or capacity to undertake more care, per se, will satisfy the test.
It is also relevant that consent orders may have been entered into by parties without any prior court hearings and with a minimum of parental conflict. In this situation the assumption underlying the Rule — that children must be protected from repeat applications coming before the Court and that parents should be prevented from discretion shopping — is not apposite. This is not to say, however, that application of the Rule might not be justified in this context on the basis of discouraging any degree of litigation between parents.
As a criterion to determine whether a court should re-open and determine a parenting dispute or not, 'change' is open to criticism. Change is an inherent part of life. The lives and relationships of children and parents do not remain static but change with time, age and experience. For children, significant physical, emotional and intellectual changes occur from year to year as they progressively mature from being a baby, to a toddler, to an adolescent, and to an adult. Indeed, if change per se were the criterion, then the threshold test would be satisfied in every case and rendered meaningless. The Court overcomes this problem by requiring a 'significant change'. However, in doing so, it introduces an element of arbitrariness because what is a 'significant change' cannot be categorised in the abstract but must depend upon the circumstances of the case at hand. As seen, it will always be possible for the Court to find a 'change' if it wants to, even if merely through the passage of time. Conversely, it will often be possible for the Court to find that the changes put forward by an applicant in one case are not material although the same kinds of changes might be material in another. Thus in any given case, changes that commonly characterise post-separation parenting may or may not be found to satisfy the test. Some factors of change are particularly 'fluid' in this regard, most notably the issue of remarriage.[122] This is particularly noteworthy in light of research that shows that remarriage is one of the most influential factors on child-parent relationships post-separation and thus in most cases could be expected to have a bearing upon the child's best interests.[123] Viewed in this way, the Rule and its emphasis on the concept of 'change' appears to operate as a tool to enable the Court to weed out what it regards as unmeritorious applications for variation.
Apart from the fluidity of change as a criterion, a more fundamental question arises as to its application in this context. Where is the research that shows that the best interests of children lie in preventing their parents from litigating so as to maintain existing arrangements, possibly negotiated in the midst of post-separation difficulties, where there has been no material change of circumstances? In fact the research does more to indicate that a key ingredient for successful shared care arrangements post-separation is flexibility and co-operation.[124] This research also suggests that 'change' is 'a constant' in post-separation parenting,[125] leading Catherine Caruana and Anna Ferro to the conclusion that:
The prevalence of change in arrangements concerning the care of children after separation would suggest that the notion of achieving 'final orders', the ultimate objective of court proceedings, may be incongruous and unrealistic.[126]
In a similar vein Parkinson and Smyth have suggested that
[I]t may be prudent to foster the view that orders concerning the care of children are by their very nature interim and would benefit from periodic review.[127]
In stark contrast, the Rule in Rice and Asplund does little to promote flexibility or periodic review of parenting arrangements. Rather it facilitates the maintenance of a status quo without any active inquiry into the best interests of the child, notwithstanding that for at least one of the parents the care arrangements are no longer satisfactory. Admittedly, parents most likely to be able to navigate shared care are those least likely to be fighting in court.[128] However, this does not overcome the problem that the Rule presents for a parent seeking greater involvement than current orders provide in the face of opposition by the other parent. The fact that one party is able to rely on a lack of changed circumstances in order to argue for the maintenance of the status quo may reduce litigation in the Family Court but does little to promote greater levels of parental cooperation and a view of parenting as a shared and dynamic endeavour. Equally it does little to encourage the parties to focus their attention on the best interests of the child which, ultimately, is the paramount consideration and should be the guiding determinant in all child related decision making.
It must always remain open to a court to vary existing parenting orders where the best interests of the child call for it. In this sense, parenting orders are never final. However, clearly there needs to be a limit to this principle in order to prevent parents re-litigating issues that have already been adjudicated upon in the hope of receiving a more favourable exercise of judicial discretion. The Rule in Rice and Asplund thus operates to reject applications for variation unless a material change of circumstances is demonstrated that calls for a reassessment of the child's best interests. However, the Rule, first propounded 25 years ago, operates today at best as a blunt tool for a complex problem.
The Government has made clear its intention that the Rule in Rice and Asplund should continue to operate after the SPA reforms come into operation. Despite the problems that beset the Rule, the Family Court appears unlikely to countenance any challenge to its validity, as can be gleaned from both it past response to challenges to the Rule and its current concerns about the impact of increased applications for variation on judicial resources and hearing times. This will inevitably lead to criticism by parents seeking greater involvement with their children but unable to satisfy the Rule. This in turn raises the possibility of a High Court challenge to the Rule on the basis that it is unauthorised and inconsistent with the paramountcy principle.
For the reasons suggested in this article, the High Court may have some difficulty in justifying the Rule on the basis of the paramountcy principle. As seen, it is treated by the Family Court, in effect, as an irrebuttable presumption. The rationale for the Rule in the context of applications to vary consent orders is dubious to say the least. And the use of 'change' as a criterion to contain the floodgates is both artificial and arbitrary and does not accord with a contemporary research on post-separation parenting. The obvious difficulty presented by a High Court finding that the Rule is invalid is that the Family Court lacks the capacity to absorb any increase in applications for variation. In light of this political reality, thought needs to be given to alternative strategies that would encourage parents to resolve their parenting disputes in a child-focused and non-litigious manner. These strategies should take into account the legitimate need to protect children from the adverse effects of ongoing litigation between parents. However, they should also recognise that the best interests of a child are not necessarily met through the maintenance of a status quo decided upon shortly after separation, and that flexibility and adaptability may be important components to successful shared-care.
[*] (Dr) Sarah Middleton - BA/LLB (Hons), PhD, Law Lecturer, Monash University. The author would like to thank Richard Ingleby and Adiva Sifris for their insightful thoughts and comments.
[1] FLA ss 60B(1)(a), 60CC(2)(a), 65DAA.
[2] This includes applications filed prior to the commencement of the legislation. See SPA sch 1, pt 2.
[3] [1978] FamCA 84; (1978) 6 Fam LR 570.
[4] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on Provisions of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (24 March 2006) 44.
[5] Attorney-General's Department, Government Response to Recommendations of the Senate Legal and Constitutional Legislation Committee Report on the Family Law Amendment (Shared Parental Responsibility) Bill 2005, 11 May 2006, 7.
[6] FLA s 60B(1)(a).
[7] Only incidental reference is made to the rule. See Richard Chisholm, '"The Paramount Consideration": Children's Interests in Family Law' (2002) 16 Australian Journal of Family Law 87; Peter McManus, 'Guidelines in Family Law: Rules by Another Name? (2001) 15 Australian Journal of Family Law 51.
[8] There are 22 reported cases that have considered, refined and applied the threshold test set down by the Full Court.
[9] Since 2000, parties have also been able to file for orders in the Federal Magistrates Court which shares jurisdiction with the Family Court in respect of matters arising under Part VII of the FLA (s 69H).
[10] Although the SPA makes redundant the terms 'residence' and 'contact', for the purposes of this paper these terms will be used interchangeably with the new terminology of 'lives with' and 'spends time with'. The reason for this is that all of the case law discussed in this article is pre-SPA and thus utilises the former terminology. Further to this, in the discussion of cases decided prior to 1996, the term 'custody' may be used instead of 'residence' and 'access' instead of 'contact'.
[11] FLA s 64B(1).
[12] This is done through the filing of an Application for Consent Orders. The orders are typically approved by a Registrar.
[13] FLA s 65D(1).
[14] FLA s 60CA.
[15] Section 60CC. These factors were formerly known as the 's 68F(2) factors'.
[16] Section 65D(2).
[17] See C and F [2005] FamCA 110 (Unreported, Finn J, 28 February 2005). Where the threshold test is met, the Court then determines the case on its merits according to the principle set down in Cowling and Cowling [1998] FamCA 19; (1998) 22 Fam LR 776; namely, if children are in a settled environment, interim orders should not disturb the status quo unless the welfare of the child is endangered. See Tom Altobelli, 'Recent Developments in Interim Residence Applications: Back to the Future?' (2000) 14 Australian Journal of Family Law 36.
[18] Rice and Asplund [1978] FamCA 84; (1978) 6 Fam LR 570, 572. Most reported cases involve an application to vary previous orders made by consent. This is to be expected given that there are more orders made by consent than orders imposed by the Court following a defended hearing. See Family Court of Australia, Annual Report 2004–2005 (2005) ch 3.
[19] Hayman and Hayman (1976) FLC 90–140, 75679.
[20] Rice and Asplund [1978] FamCA 84; (1978) 6 Fam LR 570, 572.
[21] (1976) FLC 90–140.
[22] [1978] FamCA 84; (1978) 6 Fam LR 570, 572.
[23] Ibid 571.
[24] Ibid 572.
[25] For example orders relating to the time that a child spends with a parent.
[26] For example, the issues involved in considering an application for reinstatement of time with a child (where such time has been suspended), 'relate much more directly to the children and their needs, their own attitudes and wishes'. Moreover, the applicant in such a case 'may have no direct evidence to put before the Court relating to the children and their needs, simply because he has had no contact with them over the years': Zabaneh and Zabaneh [1986] FamCA 18; (1986) 11 Fam LR 167, 172 (Evatt CJ). See also Chojecki and Chojecki, [1995] Fam CA (Unreported, Lindenmayer, Finn and Joske JJ, 4 October 1995).
[27] [1986] FamCA 23; (1986) 11 Fam LR 293.
[28] Ibid 297; See also McEnearney and McEnearney (1980) FLC 90–866, 75499 (Nygh J).
[29] In this way the Family Court has regard to the best interests of the child in what has been described as a 'weak' sense; see Chisholm, above n 7
.
[30] In this sense the Family Court has regard to the best interests of the child in a 'strong' sense; ibid.
[31] The applicant need only show a change of circumstances that warrants a reopening of the parenting issue, rather than a change that would warrant alteration of the original order. Accordingly, there is no onus on the applicant to show that a positive advantage would result from a variation of the orders. Similarly, there is no onus on the respondent to show that a change would be detrimental to the children (Burton and Burton (1978) 4 Fam LR 783, 786).
[32] See, eg, Langham and Langham [1981] FamCA 16; (1981) 6 Fam LR 862. In these cases 'common law rules of pleading and of adversary litigation, and specifically in relation to the introduction of fresh evidence, are modified to take account of the parental jurisdiction of the Court in disputes involving a child's welfare' (Geoff Monahan and Lisa Young, Family Law in Australia, 6th ed, 2006) 315.
[33] See FLA ss 60CC(2)(b), (3)(j); See also JG and BG (1994) 18 Fam LR 255.
[34] Langham and Langham [1981] FamCA 16; (1981) 6 Fam LR 862, 864–5. This case provides the only reported case law example of the threshold test being satisfied by non-disclosure. The non-disclosure in question related to inaccuracies in the consent orders concerning existing custody rights and claims.
[35] King and Finneran (2001) FLC 93–079, 88369. In this case the Court rejected the husband's argument that if the individual changes he alleged were not sufficient in isolation, collectively they sufficed.
[36] Newling and Mole [1987] FamCA 21; (1987) 11 Fam LR 974, 976.
[37] McEnearney and McEnearney (1980) FLC 90–866, 75499.
[38] Freeman and Freeman [1986] FamCA 23; (1986) 11 Fam LR 293, 297.
[39] Houston and Sedorkin (1979) FLC 90–699, 78727–28.
[40] In Rice and Asplund [1978] FamCA 84; (1978) 6 Fam LR 570, Evatt CJ described it as 'a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served' (572). Similarly in Freeman and Freeman [1986] FamCA 23; (1986) 11 Fam LR 293, the Court referred to the need for new facts 'which throw sufficient doubt on the desirability of continuing the custodial arrangements' (297).
[41] (2001) FLC 93–079, 88368. This statement of principles has since been endorsed by the Full Court in Bolitho and Cohen [2005] FamCA 458; (2005) 33 Fam LR 471.
[42] D and Y (1995) 18 Fam LR 662; King and Finneran (2001) FLC 93–079.
[43] In this scenario, the ordinary rules that apply to summary dismissal of claims (see Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1997] FCA 1318; Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251, 255–6; Re Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 257–8) are modified: D and Y (1995) 18 Fam LR 662.
[44] D and Y (1995) 18 Fam LR 662. See D v L [2004] WASCA 116 (Unreported, Steytler, Heenan and Le Miere JJ, 20 April 2004) for an example of failure by the trial judge to afford procedural fairness in this context.
[45] Bennett and Bennett [1990] FamCA 148; (1991) 14 Fam LR 397. Approved by the later Full Court decision of D and Y (1995) 18 Fam LR 662.
[46] Section 1.3.
[47] Rice and Asplund [1978] FamCA 84; (1979) 6 Fam LR 570, 572.
[48] In some cases it may be appropriate, even necessary, for the judge to consider the trial transcript. See Hayman and Hayman (1976) 2 Fam LR 11,558.
[49] Rice and Asplund [1978] FamCA 84; (1979) 6 Fam LR 570, 572–3.
[50] Newling and Mole [1987] FamCA 21; (1987) 11 Fam LR 974.
[51] Delay of between one and two years can be a particular problem in cases involving children. See Australian Law Reform Commission, Submission to Australian National Audit Office Preliminary Study of the Administration of the Family Court of Australia and the Federal Magistrates Service (2003).
[52] Fryda and Johnson (1979) FLC 90–634, 78316. In this case, the father established a relevant change in circumstances only two months after making consent orders. After making the consent orders that gave custody of the child to the mother, she informed the father that she intended to marry a United States naval officer and to relocate with the children to Japan.
[53] Newling and Mole [1987] FamCA 21; (1987) 11 Fam LR 974, 977.
[54] See, eg, D and Y (1995) 18 Fam LR 662 where parenting orders had been made only two years earlier and following a nine day trial. The Full Court noted that in such circumstances 'a Judge would be extremely loath to reopen the issue of custody, except on strong grounds': at 672. See Fryda and Johnson (1979) FLC 90–634 for a case where the mother's proposed relocation two months after consent orders were made constituted such strong grounds.
[55] Newling and Mole [1987] FamCA 21; (1987) 11 Fam LR 974, 977 (Nygh J). On this basis, it was held that the trial judge did not err in coming to the conclusion that the child's 'development, age and maturity' justified reopening the issue of paternal contact some four years after the previous hearing. See also N and R (1991) 15 Fam LR 39.
[56] [1986] FamCA 18; (1986) 11 Fam LR 167.
[57] Ibid 172.
[58] See, eg, King and Finneran (2001) FLC 93–079 where the husband unsuccessfully sought a variation by which his contact would be increased by four hours each alternative week and one or perhaps two days coinciding with public holidays in each year. Collier J noted that 'if it were open to litigant to achieve a re-hearing because he were able to argue that the changes he sought were minor and accordingly the changes in circumstances or fresh matters that he needed to raise were accordingly reduced, this would produce ridiculous and nonsensical results': at 88369.
[59] Ibid.
[60] Ibid 88368. See also Freeman and Freeman [1986] FamCA 23; (1987) 11 Fam LR 293 where Strauss J rejected an application for variation on the basis that 'the alleged change in circumstances were … no more than the kind of changes that often occur in the lives of people of the ages of these parties': at 297.
[61] [1978] FamCA 84; (1979) 6 Fam LR 570.
[62] Ibid 573.
[63] Ibid. See also Radford and Alpe [1985] FamCA 25; (1985) 10 Fam LR 135, 143 where the mother was able to show a sufficient change of circumstances enabling her to bring an application for permanent relocation to the United States with the children of the marriage, notwithstanding that the possibility that she and her new husband might want to stay permanently in the United States had been contemplated when consent orders were made.
[64] See King and Finneran (2001) FLC 93–079, 78262 where Collier J stated: 'To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings.'
[65] [1990] FamCA 148; (1991) 14 Fam LR 397.
[66] Ibid 409. A good example is provided by the case of WP v WDJ [2003] FMCAfam 597 (Unreported, Scarlett FM, 5 December 2003) where the father sought a residence order, conditional upon succeeding in his claim to change the child's school. The mother sought to have the father's application for residence summarily dismissed. Scarlett FM, however, found that Rice and Asplund could not be dealt with as a preliminary issue because any change in the child's school would constitute a 'change' for the purposes of Rice and Asplund, and the schooling application was yet to be determined.
[67] [2005] FamCA 110 (Unreported, Finn J, 28 February 2005).
[68] Ibid [67]. The husband's appeal was accordingly dismissed. Another example is provided by ODJ and OSY [2003] FMCAfam 415 (Unreported, Scarlett FM, 3 September 2003).
[69] [1990] FamCA 148; (1991) 14 Fam LR 397.
[70] Ibid 409. This could occur, eg, where a party seeking a variation raises the issue of ongoing family violence between the parents. Although the history of the parties may involve the same pattern of behaviour, thus raising the objection that ongoing incidences of family violence were foreseeable and do not constitute new or changed circumstances, nonetheless it would be, in the words of the Full Court, 'unthinkable' that a technical application of the Rice and Asplund Rule could prevent the Court from making orders necessary to protect the child's best interests.
[71] Philip Ruddock, ‘Family Law Amendment Bill Passes Through Senate’ (Press Release 51/2006, 31 March 2006). The SPA amends the FLA to implement recommendations made by the House Standing Committee on Family and Community Affairs, Parliament of Australia, Every Picture Tells a Story: Report of the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003); and by the House Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (2005).
[72] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) 1.
[73] Ibid.
[75] Section 61DA(1). Under s 61DA(2), ‘[t]he presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person living with a parent of the child) has engaged in’ child abuse or family violence. The presumption may be rebutted where the Court is satisfied that equal shared parental responsibility would not be in the best interests of the child: s 61DA(4).
[76] Section 65DAA(1). See s 65DAA(5) on what the Court must consider when assessing whether equal time is 'reasonably practical'.
[77] Section 60CC(2)(a). The other primary consideration is the 'need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence': s 60CC(2)(b).
[78] Section 60B(1)(a). See also s 60B(2)(b).
[79] Section 65DAA(2).
[80] Section 65DAA(3).
[81] Robert van Krieken, 'The "Best Interests of the Child" and Parental Separation: on the "Civilising of Parents"' (2005) 68 Modern Law Review 25, 26.
[82] House Standing Committee on Family and Community Affairs, above n 71, xii.
[83] Jan Pryor and Brian Rodgers, Children in Changing Families: Life After Parental Separation (2001); Carol Smart, Bren Neale and Amanda Wade, The Changing Experience of Childhood: Families and Divorce (2001) 127; Paul Amato and Joan Gilbreth, 'Nonresident Fathers and Children's Wellbeing: A Meta-Analysis' (1999) 61 Journal of Marriage and the Family 557; Judith Wallerstein and Sandra Blakeslee, Second Chances: Men, Women, and Children a Decade after Divorce (1989) 302. See also Mavis MacLean and John Eekelaar, The Parental Obligation: A Study of Parenthood across Households (1997) 147.
[84] Bruce Smyth and Ilene Wolcott, 'Why Study Parent-Child Contact' in Bruce Smyth (ed), Parent-Child Contact and Post-Separation Parenting Arrangements (2004) 1, 7.
[85] Tom Altobelli, 'Editorial' (2006) 20 Australian Journal of Family Law 1, 1.
[86] Bruce Smyth, Catherine Caruana and Anna Ferro, 'Father-Child Contact after Separation: Profiling Five Different Patterns of Care' (2004) Family Matters 20, 21.
[87] Smyth and Wolcott, above n 84, 4. An even lower figure (less than 3 per cent) was found by the Australian Bureau of Statistics in Family Characteristics Survey 1997 (1998) Catalogue No 4442.0.
[88] Smyth and Wolcott, above n 84, 4.
[89] Patrick Parkinson and Bruce Smyth, 'When the Difference Is Night & Day: Insights from HILDA into Patterns of Parent–Child Contact after Separation' (Paper presented at the HILDA Conference 2003, Melbourne, 13 March 2003) 10, quoted in Smyth and Wolcott, above n 84, 6. Where contact is tenuous the perceptions of mothers and fathers differ markedly as to the cause. Mothers perceive fathers not to be interested in being involved with children and fathers believe that mothers have cut them out of their children's lives (Bruce Smyth, 'Summary' in Bruce Smyth (ed), Parent-Child Contact and Post-Separation Parenting Arrangements (2004) i, xii).
[90] House Standing Committee on Family and Community Affairs, above n 71, 22.
[91] Ibid 21.
[92] Bruce Smyth, Catherine Caruana and Anna Ferro, 'Fifty/Fifty Care' in Bruce Smyth (ed), Parent-Child Contact and Post-Separation Parenting Arrangements (2004) 17, 29; Bruce Smyth, Lixia Qu and Ruth Weston, 'The Demography of Parent-Child Contact' in Bruce Smyth (ed), Parent-Child Contact and Post-Separation Parenting Arrangements (2004) 113, 115; Patrick Parkinson, 'Child Custody Arrangements on Family Separation' (2004) 17 Australian Family Lawyer 30, 31–2; Bren Neale, Jennifer Flowerdew and Carol Smart, 'Drifting Towards Shared Residence?' (2004) 17(2) Australian Family Lawyer 12; Cate Banks, et al, 'Review of Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005' (2005) 19 Australian Journal of Family Law 79, 86–7. See also Foster and Foster [1997] FLC 90–281; Forck and Thomas [1993] FamCA 18; (1993) 16 Fam LR 516.
[93] Altobelli, above n 85, 2.
[94] Ibid.
[95] Smyth, Caruana and Ferro, above n 86, 27.
[96] Senate Legal and Constitutional Legislation Committee, above n 4
, 44.
[97] Ibid 46. It did accept that the establishment of FRCs may go some way to relieving the burden on the Court form this potential influx.
[98] Ibid 44 (quoting Mr Duggan, Committee Hansard, 3 March 2006, 46).
[99] Ibid 45.
[100] Attorney-General's Department, above n 5
, 7.
[101] Ibid.
[102] Parliament of Australia, Senate, Government Amendments, Family Law Amendment (Shared Parental Responsibility) Bill 2006, Amendment 5: Amendment to Schedule 1, Part 2 — new item 44 (Grounds for discharging or varying parenting orders).
[103] Notably, the explanatory memorandum to this amendment states that the inclusion of the 'note' immediately following item 44 'is to assist readers, particularly self-represented litigants, understand how new item 44 links to the common law.' (Supplementary Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) 4).
[104] Item 44 is contained in sch 1, pt 2 of the SPA which deals with the application of amendments. It will not appear in the FLA itself.
[105] Senate Legal and Constitutional Legislation Committee, above n 4
, 45.
[106] See, eg, King and Finneran (2001) FLC 93–079, 88366 where Collier J rejected the husband's argument that it was not open to the Court to apply a threshold test to matters involving a child and that the former provisions (ss 65E, 68F and 60B) created a mandatory code to be followed by any court in reaching a determination. His Honour said: 'The legislation has not changed sufficiently to cause that which could be done before the 1995 amendments, that is, the application of a threshold test to be unavailable since the coming into effect of the 1995 amendments'. Following Collier J's line of argument, the new reforms could equally be regarded as insufficient to exclude the operation of the threshold test. Notably, the changes do not alter the framework of the Court's approach (pursuant to the former ss 65E, 68F and 60B) but merely the content (namely, the need to consider the possibility of equal time sharing between parents when assessing the child's best interests). See also L and L (1992) FLC 92–274.
[107] Section 2.3.
[108] Section 60B(1)(a).
[109] Senate Legal and Constitutional Legislation Committee, above n 4
(quoting Mr Duggan, Committee Hansard, 3 March 2006, 50).
[110] See Family Court of Australia, above n 18, 23.
[111] John Dewar and Stephen Parker, 'The Impact of the New Part VII Family Law Act 1975' (1999) 13 Australian Journal of Family Law 96, 115–6. See also Jennifer McIntosh and Lawrie Moloney, 'Child-Responsive Practices in Australian Family Law: Past Problems and Future Directions' (2004) 10 Journal of Family Studies 71.
[112] See, eg, John Wade, 'Forever Bargaining in the Shadow of the Law — Who Sells Solid Shadows? (Who Advises What, How and When?)' (1998) 12 Australian Journal of Family Law 256.
[113] Dewar and Parker, above n 111, 107. See also Rachael Field, 'Federal Family Law Reform in 2005: The Problems and Pitfalls for Women and Children of an Increased Emphasis on Post-separation Informal Dispute Resolution' (2005) 5 Queensland University of Technology Law Journal 28.
[114] This policy is expressly stated in the explanatory memorandum to Item 44 (see Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) 4).
[115] Equally, insofar as the new reforms seek to reduce litigation in the Family Court, as does the Rule, the conflict is reduced.
[116] See above, Section 1.1.
[117] See, eg, Gronow and Gronow [1979] HCA 63; (1979) 144 CLR 513. It was based on this exact reasoning that amendments made by the SPA to encourage equal and substantial time sharing fell short of creating a presumption to this effect.
[118] [1990] FamCA 148; (1991) 14 Fam LR 397.
[119] See above, text following n 70.
[120] See above, text accompanying n 70. Whether the interests of the child in spending more time with the applicant parent, per se (that is, absent other factors such as the child's changed views), could itself qualify as a change is doubtful: all that is new in this scenario is the Court's assessment of the best interests of the child in light of new legislative provisions. Equally, the wishes of a parent to spend more time with a child would not appear to be a relevant change: any applicant seeking more time has this motivation and, in many cases, the parent's desire for more time (or, indeed, an application seeking more time) may not be a new thing.
[121] [1981] FamCA 16; (1981) 6 Fam LR 862, 865.
[122] See Rice and Asplund [1978] FamCA 84; (1978) 6 Fam LR 570; Mitchell and Mitchell (1983) 9 Fam LR 267; Houston and Sedorkin (1979) FLC 90–699; King and Finneran (2001) FLC 93–079.
[123] See above, text accompanying n 94.
[124] See Smyth and Wolcott, above n 84.
[125] Catherine Caruana and Anna Ferro, 'Points of Convergence' in Bruce Smyth (ed), Parent-Child Contact and Post-Separation Parenting Arrangements (2004) 101, 104. In that study, many of the focus group participants were either poised to move into a different parenting arrangement at the time of interview of had experienced changes in the way they and their former partners cared for the children post-separation. This research runs counter to earlier research indicating that arrangements made soon after separation tend to remain in place indefinitely: Kate Funder, 'Exploring the access-maintenance nexus: Non-resident fathers' post-separation involvement with children' in Kate Funder, Margaret Harrison and Ruth Weston (eds) Settling Down: Pathways of Parents after Divorce (1993); Bruce Smyth, Grania Sheehan and Belinda Fehlberg, 'Patterns of Parenting After Divorce: A Pre-Reform Act Benchmark Study' (2001) 15 Australian Journal of Family Law 114.
[126] Caruana and Ferro, above n 125, 104.
[127] Parkinson and Smyth, above n 89, cited in Caruana and Ferro, above n 125, 104.
[128] See above, Section 2.1.
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