Anton and Jarling

[2010] FamCA 27

FAMILY COURT OF AUSTRALIA

ANTON & JARLING [2010] FamCA 27

FAMILY LAW – CHILDREN – Urgent application to vary parenting orders whilst appeal pending – Need to show change of circumstances of some substance

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Gotch & Gotch, [2009] FamCAFC 3
Miller & Harrington [2008] FamCAFC 150
Pelerman (2000) FLC 93-037
Rice and Asplund (1979) FLC 90-725

SPS v PLS (2008) FLC 93-363

APPLICANT: Ms Anton

RESPONDENT: Mr Jarling

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8341 of 2009

DATE DELIVERED: 25 JANUARY 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 20 JANUARY 2010

REPRESENTATION

THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MR STRUM

SOLICITOR FOR THE RESPONDENT: TAUSSIG CHERRIE & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR SCHETZER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: SCHETZER CONSTANTINOU

Orders

1. That the applications of the mother filed on 4 January 2010 and 7 January 2010 are dismissed.

2. That all questions of costs are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Anton & Jarling is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8341  of 2009

MS ANTON

Applicant

And

MR JARLING

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I am asked by Ms Anton to vary parenting orders made on 21 December 2009.  Mr Jarling opposes the application and seeks its summary dismissal.  The simplicity belies the complexity.

2. I propose to dismiss the mother’s application.  These are my reasons.

3. The mother and father were in a relationship from which two children were born.  The immediate proceeding relates to those children who are aged 12 and 7 years.  There is a financial dispute between the parties as well which complicates the picture.  There, the dispute is apparently about separation and whether Part VIIAB of the Family Law Act 1975 (Cth) (“the Act”) applies.

4. On 21 December 2009, I made orders that the children live with the father on an interim basis and that the mother spend time with them in the presence of some named adults.  The precise details of the time with the mother do not affect what I am asked to determine here but there is little doubt that pending a hearing on 5 February 2010, the time between mother and children was limited. 

5. On 30 December 2009, the mother filed a Notice of Appeal indicating that she was seeking leave to appeal against the orders.  The handwritten notice said:

   The orders made on 21 December 2009 were based on false evidence from the respondent and his witness [Ms M] and the applicant had not had the opportunity of filing an amended response to the amended initiating application filed on behalf of the respondent on 7 December 2009 prior to the hearing on 21 December 2009.

6. My only observation of that was that it was not suggested by counsel who appeared on behalf of the mother that day that I should adjourn the father’s application.  Quite the opposite, counsel requested that I deliver my reasons for judgment from a hearing on 9 December 2009.

7. There had been a hearing on 9 December 2009 in which I was asked to determine the amount of time between mother and children on an interim basis.  There were other matters not in dispute that day about which I made consent orders.  Having said that, the wife now disputes there was such a consent by her or her counsel.  That dispute appeared in a second Notice of Appeal filed 4 January 2010 in which the only ground appears to be that the orders were not the subject of her consent or that of her lawyer.  No doubt, the transcript will speak for itself.

8. Incidents in the period between 9 December 2009 and 21 December 2009 gave rise to the father’s application culminating in the orders made on 21 December 2009. 

9. On 4 January 2010, the mother personally filed an application seeking parenting orders. Doing the best I can, the mother sought orders that the children be returned urgently to her care as they had always been in her care and they were neither physically nor emotionally safe in the care of the father. She sought orders that the father and his extended family and associates cease breaching the “non-denigration” orders. She sought an order that she be given leave to file an amended response. She then sought orders in relation to the disregarding of a children’s and parents’ issues assessment report dated 7 December 2009 and otherwise that there be an urgent hearing allocated to determine the questions of where the children were to be educated in 2010 and the jurisdictional question of the separation for the purposes of Part VIIIAB of the Act. She also sought an order that the father submit to an urgent psychiatric assessment.

10. The “return” of the children is an application to vary the December orders whilst there is an appeal pending. 

11. In relation to the non-denigration order, there is no point in ordering the same thing again.

12. In respect of the amended response, the mother can file that at any time. 

13. As for disregarding the report dated 7 December 2009, I am not sure how one disregards that which was the subject of argument even if not evidence.  I have already ordered an urgent hearing and stretched the Court’s resources because of the variety of issues involved.

14. As for ordering a psychiatric assessment of the father, that had already been ordered previously and was taking place.

15. In respect of the last order, it will be noted that according to the court file, both parties consented to each being examined psychiatrically by Dr E.  When the hearing began on 20 January 2010, the mother told me that she had already been examined by Dr E and counsel for the father indicated that his client was absent because he was there undergoing that assessment at that time.

16. The application filed on 4 January 2010 was supported by three affidavits.  The application was made returnable on 5 February 2010 because that was the return date of the other parenting issues that I had previously adjourned in December.  Those matters however are now the subject of the mother’s appeal.

17. On 7 January 2010, the mother personally filed a second application which the Court made returnable on 20 January 2010 before me.  It sought similar orders to those in the application filed 4 January 2010 including a stay of the orders pending appeal.  In addition, very similar sorts of orders to those to which I have referred were also repeated.

18. The Independent Children’s Lawyer Mr Schetzer appeared in person and the father in his absence was represented by counsel Mr Strum.

19. After some preliminary discussion, I stood the case down for the mother to get advice which she said would be from the Women’s Legal Service.

20. Upon the mother’s return to court, she said she was proceeding with her appeal and wanted to pursue her applications.   Subsequently however, she withdrew the application for the stay, leaving only the parenting issues alive.

21. After discussion with all parties, notwithstanding the state of the mother’s paperwork and the absence of any material from the father, I said I would treat the hearing as follows:

    (a)the mother’s application as a variation of orders made on 21 December 2009; and

    (b)the father’s oral application that I dismiss the mother’s application on a summary dismissal basis.

22. It was agreed that if the mother was unsuccessful, the application of both parties was next returnable on 5 February 2010.  That however has to be considered in the context of the mother’s application for leave to appeal against the order made on 21 December 2009.  It would appear that the Full Court cannot hear the matter of the application for leave prior to 5 February 2010.

23. Mr Strum conceded that a pending appeal ought not be an impediment to hearing any parenting dispute if there was some urgency about the matter.  The Independent Children’s Lawyer said that must be the case.  If seised of an application, the Court must deal with the matter.  Thus, despite the appeal, there is immediately to be heard, the mother’s application of 4 January and 7 January and potentially depending upon the outcome of that application, jurisdiction to hear the matter on 5 February 2010.  It may be however that the appeal might be rendered nugatory depending on what occurs on 5 February.  The mother will have to consider that.

24. On 21 December 2009, in my reasons for the orders, I said the following:

    57.Thus, what I am dealing with is a highly conflictual family in circumstances where the sort of separation I had anticipated, would seem to make very little difference.  I am very concerned about the fact that [the child S] is being placed in the conflict and expressing a desire not to be with her mother.

    58.Having regard to the relatively short time until the matter can be examined by Dr [E], I think the inconvenience to the mother is a small price to pay for the continuation of the relationship between her and the children.  It will give her an opportunity to bridge the gap with [S] and ensure both children are together during the school holiday period.

    59.The mother initially said that she desired that the father move out of the home during the daytime period but did not press for that.  In my view that was a sensible course of action.

    60.Part VII of the Act provides that in determining what is in the best interests of children, even on an interim basis, the Court must look to the matters set out in s 60CC of the Act.

    61.It is also clear however that I cannot make decisions on contentious facts. I propose not to do so. There are many unexplained behavioural issues.  I also have evidence of their behavioural aspects from Mr [N] in an issues assessment which will be expanded and examined in more details in a family report.

    …

    67.It seems to me therefore that it is in the best interests of the children that they have significant but supervised time with their mother.

25. I do not propose to endeavour to deal with each and every assertion of the mother.  The reason for that is that much of what she said in her affidavit was emotive, opinion, vague and unparticularised.  Some of the matters related to events before December 2009 and specifically before 21 December 2009.  As such, those matters generally were taken into account in the orders made at that time.

26. Section 69ZT(1) and (2) of the Act says:

    (1)      These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:

    (a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;

    Note:  Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.

    (b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

    (c)  Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

    (2)      The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).

    However, that section and the provision in the Act generally, does not mean that any statement, assertion or opinion can be placed before the Court as evidence and expect that it would be treated as admissible and of weight.

27. Sections 55 and 56 of the Evidence Act 1995 (Cth) require that evidence is to be admissible if it is relevant to an issue in dispute.

28. My focus is on what is relevant to the parenting issues.  Relevance to some degree depends upon the nature of the proceedings.  In this case, the father says that the Court should summarily dismiss the mother’s application.  As I shall mention below, in a summary dismissal application it is predominantly to the mother’s material that I look.

29. Before examining the material presented by the mother, I set out the basis of the approach that I believe is the correct one having regard to the authorities.

30. What I have to determine is the mother’s urgent interim parenting application and an oral application of the father supported by the independent children’s lawyer that the mother’s application be summarily dismissed pending the determination of the continued substantive parenting proceedings or the determination of the appeal against the orders made on 21 December 2009.

31. The submission of the father supported by the Independent Children’s Lawyer is that if I was minded to exercise the Part VII jurisdiction notwithstanding the pending appeal, the rule in Rice and Asplund (1979) FLC 90-725 applies.

32. The father submitted, again supported by the Independent Children’s Lawyer, that the mother’s evidence including her various witnesses does not demonstrate any change of circumstances such that it could be said to be in the best interests of the two children of the parties for the orders to be reconsidered and/or varied.  I agree.

33. Dealing first with the summary dismissal principles, the Full Court in Pelerman (2000) FLC 93-037 said:

    The power for summary dismissal is a discretionary one.  Relief is rarely and sparingly provided.  The parties seeking summary dismissal must show that the application is doomed to fail or has been otherwise described that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.

34. The principles governing the determination of a summary dismissal can only be seriously contemplated after consideration of the impact in this case of the rule in Rice v Asplund. In that case, the Court said that some changed circumstance had to be shown to justify the re-examination of orders. That is, some new factor which had not been disclosed when the orders were previously made.

35. In SPS v PLS (2008) FLC 93-363 Warnick J sitting as a Full Court referred to the degree of change sought to the earlier order. His Honour referred to the Rice v Asplund principle and said that any application of the rule must take account of the evidence against the principles set out in Part VII of the Act.

36. In Gotch & Gotch, [2009] FamCAFC 3, the Full Court referred to its own decision in Miller & Harrington [2008] FamCAFC 150 where, in respect of the issue of procedure in an application of the rule in Rice & Asplund, it had said:

    69.This court has used, and continues to use, expressions such as “striking out” and “summarily dismissed” where financial issues are in dispute.  (See, eg:  Bigg v Suzi (1998) FLC 92-799; Bain Pacific Associations and Ors & Kelly & Ors (2006) FLC 93-270 per Bryant CJ, Warnick and May JJ). In those types of case, principles familiar to the common law are applicable. In particular, the usual approach has been to determine the application by reference to material in the case for the respondent together with any non-contentious facts. (See, eg, Bain Pacific at para 21).

    70.In parenting applications, when a party submits an application should not proceed to a full hearing a common approach is exemplified by the discussion in this case in the passages of transcript already set out; in particular references to “dismiss the mother’s application for final parenting orders on a summary basis”, after a hearing “on the papers”.

    …

    72.It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage.  This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.

    …

    81.Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.

    82.However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.

    83.This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.

    84.On the other hand, there is authority to suggest that these are not the only legitimate procedures. …

    …

37. I observe here that taken at its highest, the mother’s application endeavours emotively to traverse issues already canvassed.

38. I observe further that the orders were interim and intended to cover the short period pending a comprehensive examination of all parenting issues.  I also observe that tome of the orders were the subject of the mothers’ consent albeit she might argue otherwise. 

39. For reasons that follow, not only is there no evidence of change but the evidence does not justify an immediate re-examination of the children’s situation.  To do otherwise would create further uncertainty for the children where they need a period to settle but also to prevent the mother having what I can only conclude is a review or appeal by another name.

40. Of the matters relevant, the mother said in her affidavit filed 4 January 2010 that the father had lied extensively in his various affidavits and had demonstrated that he was a compulsive liar, a “control freak”, an emotional terrorist, a financial terrorist and that he had no regard whatsoever for the interests of the children.  She said he needed urgent psychiatric analysis and treatment. All of that statement is unhelpful and more importantly, unpersuasive.  I have heard it before.

41. The mother went on to say that she did not believe that the children were safe in the father’s care either physically or emotionally.  She said she was concerned about her son’s Aspergers Syndrome and Perthes disease and that the child was being denied treatment.  Neither of those matters was new.

42. The mother then referred to letters from Professor B.  The information contained in those documents was available for the previous hearing.  I say that despite the existence of a letter from Professor B subsequent to the December orders.  That does not help me.

43. The mother filed a second affidavit on 7 January 2010 and in respect of matters of relevance, she said that there was a concluded agreement between she and the father about her move to Sydney at the end of the 2009 school year.  That is not disputed by the father.  Things have certainly changed since that agreement was reached.  I was certainly cognisant of that background when I made the orders on 21 December and heard the case on 9 December 2009.

44. The mother then said that the father was trying to eliminate her from the lives of the children.  I do not understand what that means because I made specific orders for the mother to have consecutive days of time with the children during the summer period.  I do not know on the mother’s material whether it is said that the orders are not being carried out.

45. The mother then proceeded to say that she had not had the opportunity on 21 December 2009 to refute the “baseless allegations” in the father’s initiating application filed on 9 December 2009.  I do not understand how that can be so when she was represented by counsel on 9 December 2009 and the matter was comprehensively argued.  The mother’s affidavit went on to say that during the period of 22 December to 23 December 2009 attempts were made to have two witnesses to whom I shall shortly refer make arrangements about the children for 23 December and they were unsuccessful.  It is unclear whether these witnesses were aware of the orders.

1. A similar problem arose according to the mother on Christmas Eve where she:

   spent a lot of time trying to persuade the Respondent to stop the Family Court proceedings and make arrangements out of Court that were in our children’s best interest.

   That does not assist me.  The father obviously resisted the mother’s approaches.  Such is the heat in the case however that the mother said she sent the following text message to the father on Christmas Day:

   I hope that you, and your psychopathic weirdo fucked up family are happy with the irreparable damage you’ve done to our children.  I thought last Xmas was the worst possible Xmas I would ever experience in my life.  Apparently, not so.  This Xmas, I have not even set eyes on my dearly beloved children.  Now, do not think that your appalling false affidavits and your lawyer’s filthy trickery are going to win the day.  I’m coming back at you big time and every lawyer who’s helping me is vastly smarter than the moronic, unethical, unconscionable, Rottweiler…

2. I have observed the conduct of the lawyers on both sides as well as the parties over a number of hearings now and whilst clearly limited, my observations did not encompass any emotional, unreasonable or unprofessional conduct at least on the part of the lawyers.

3. The mother’s affidavit went on to say that when she saw the child H on 6 January, he was manifesting “even more anxiety than usual”.  She said he was terribly confused and was physically filthy and unkempt.  She said the children were leading very strange and lonely lives and associating only with people that she considered undesirable.  She mentioned Ms M who was a witness for the father in the previous proceedings and Ms M’s former partner.  Nothing more was said which would convince me that there was any substance in those assertions.

4. The mother then relied on a third affidavit which was filed on 18 January 2010.  Nothing in that affidavit apart from enclosing her innermost thoughts as set out in her diary, assists me to indicate a change of circumstances. 

5. The mother also relied on an affidavit by Ms O but nothing in the affidavit was relevant to the application as distinct from possibly the substantive application in the future.  The evidence does not assist me in this particular application.

6. The mother also relied on an affidavit by Mr J whose evidence was that over recent months, he had become aware that the father had been trying to prevent the mother and the children from moving to Sydney with the children at the end of 2009.  He said that he then corresponded with the father at the end of 2009 after the orders that I made were published trying to arrange for some time between mother and children and somehow he was unsuccessful.

7. The rest of the affidavit of Mr J was opinion.  Whether he was aware of the facts and circumstances upon which the orders of 21 December were made, I do not know.  His evidence does little to assist me.

8. The mother also relied upon an affidavit by Ms W. Ms W is a business affairs executive.  The mother also relied upon an affidavit by Ms JD who was a lawyer.  Whilst both witnesses are clearly supportive of the mother, their evidence does not address the immediate issue of whether it is appropriate and in the best interests of these two children to have me revisit the orders I made on 21 December 2009.

9. The mother then relied on an affidavit by Ms Y. Ms Y described herself as a paediatric radiologist.  She said that she was unaware of the serious difficulties in the relationship of the mother and father until Term 4 of 2009 and learned of the breakup through the child S.  She said she was not surprised having regard to the strain she observed in the relationship.

10. Ms Y said that in the latter months of 2009, she became aware of the father’s increased involvement in the children’s care.  She said his behaviour had quite altered and contrasted markedly from before.  I took that to be a compliment to the father.  She said he actually seemed quite friendly towards her and was certainly more attentive to the children.  On the other hand, she noticed the mother becoming more stressed, anxious and unhappy about the turn of events.  That does little to assist the mother.  She said that the mother expressed her frustration and worry about not being able to see the children, at being locked out of home and the effect this was having on the children.  Whilst those frustrations might very well have been genuinely expressed by the mother, I do not know whether Ms Y was aware of all of the circumstances that obviously I had to make my decision on on 21 December 2009.

11. Ms Y said she was saddened by the turn of events and then made some gratuitous remarks which were unhelpful.

12. However having said that, Ms Y also noted that S had rejected her mother and that was certainly the situation that I faced in December 2009.

13. In this case, I have determined the matter of the mother’s application on her material only. In doing so, I have taken into account that there are contentious facts involved and I have not had the opportunity to hear the father’s response. Subject to argument about the appropriateness of that with the impending appeal, I should do that on the return date already fixed at which stage, as I understand, psychiatric evidence will be available.

14. There is nothing in the mother’s evidence that could be said to be a major factor different from what I took into account on 21 December. There are assertions of the father denying her time with the children but they are appropriate matters for enforcement of orders as well as matters to be contemplated for the purposes of s 60CC(4) in the final hearing. There is an assertion by the mother that the father has risked a child’s health by allowing him to trampoline. Without some specific evidence of that, I could not say that it would justify changing the orders I had made in December which would amount to another change in the lives of these children.

15. I have again considered all of the matters in s 60CC and revisited my summation of matters in the reasons that I gave in December. Nothing new has arisen about matters such as parenting capacities or responsibilities which would enable me to point to a new factor to justify immediately changing the orders.

16. As such, it is not in the best interests of these children to revisit the orders pending further determination as had been anticipated in December. The mother’s applications are therefore dismissed.

I certify that the preceding Sixty One (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  25 January 2010