Awling and Henb

[2008] FamCA 1129

FAMILY COURT OF AUSTRALIA

AWLING & HENB [2008] FamCA 1129

FAMILY LAW – CHILDREN – With whom a child spends time – Competing parenting applications on an interim basis to suspend existing final orders and have the child have no meaningful time with the other parent – No significant change of circumstances since final orders were made less than 6 months before – Parent taking child to a psychologist without consultation with other parent where an existing forensic psychologist had made a significant report – Both parties’ applications refused.  Consideration of Rice and Asplund

Family Law Act 1975 (Cth)

Miller & Harrington [2008] FamCAFC 150
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363

APPLICANT: Ms Awling

RESPONDENT: Mr Henb

FILE NUMBER: MLC 13138 of 2007

DATE DELIVERED: 31 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 24 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the application of the mother filed on 22 December 2008 and the interim application of the father filed on 24 December 2008 are both dismissed.

2. That my reasons for so dismissing the said applications be delivered in writing as soon as practicable.

3. That paragraph 6 of the orders made on 11 June 2008 relating to telephone contact is discharged.

4. That the mother telephone the child … at 6.00pm precisely on each Thursday and each Sunday when the child is in the care of the father, the mobile telephone number being ….

5. That the mother specifically telephone the child on 6 January 2009 at 6.00pm.

6. That for the purposes of paragraphs 4 and 5, the father do all things necessary to facilitate the call between the mother and the child and not be present nor permit any other person to be present during the said call.

7. That if paragraph 4(g) of the orders made on 11 June 2008 is not complied with by either party, then the matter is to be relisted before me at 10.00am on 30 December 2009.

8. That pursuant to s 11F of the Family Law Act 1975 (Cth) the parties attend upon a family consultant for the purposes of participating in the child responsive program. It is noted that both appointments are on 10 February 2009.

9. That all outstanding applications be adjourned before me at 2.15pm on 19 February 2009 as the first day of a less adversarial trial.

10. That each party have liberty to approach the registrar for an urgent hearing if there is non-compliance with the orders made on 11 June 2008 between now and 19 February 2009.

11. That the father deliver the child to the mother at the F Police Station on 2 January 2009 at 10.00am precisely and the mother return the child to the father at the F Police Station on that day at 6.00pm precisely.

12. That pursuant to the orders made on 11 June 2008, the father return the child at the conclusion of the long summer holidays referred to in those orders at 4.00pm on 9 January 2009 at the F Police Station.

13. That the father telephone the child at 6.00pm precisely on 11 January, 15 January, 18 January, 22 January, 25 January and 29 January 2009 and the mother do all things necessary to facilitate that call occurring, she not being present nor permit any other person to be present during the said call.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13138  of 2007

MS AWLING

Applicant

And

MR HENB

Respondent

REASONS FOR JUDGMENT

1. On 22 December 2008, the mother in these proceedings applied in person for a recovery order and a suspension of existing orders for the parties’ child, born in October 2002, to spend any time with the father until further order. That application also sought that the hearing be without notice to the father.

2. The mother’s underlying complaint was that the child had been collected from school and held by the father in circumstances where she, the mother, had “suspended” his time with the child. After I pressed for some time, the mother conceded that there had been no formal suspension of any orders but rather that she had told the father he was not having the time with the child on advice. She said this advice was from her lawyer and the Department of Human Services that she was entitled to do so. If that advice was given on what was presented to me, it was irresponsible.

3. The mother pointed to a psychologist’s report attached to her affidavit. The object of the pursuit of the report is not readily clear because it was undertaken without the psychologist speaking to the father. The psychologist could only have obtained information from the mother and child and presumably without access to the past expert work of a forensic psychologist. Whilst I will not criticise the psychologist for her role as she could only deal with the history she was given, I found it troubling that alarm bells did not ring when the clear objective of the mother was to change an existing father and child regime that was supported by court orders. As such, the report was not helpful. I have rejected its evidentiary value.

4. On reading the mother’s material, I refused to make any orders other than that the father be served and that the proceedings be adjourned to 24 December, directing the father attend.

5. On 24 December 2008, I heard both parties in person as the father had been served as I had directed.

6. The father filed a response to the mother’s application seeking that he have sole parental responsibility for the child and that she live with him.

7. I refused both applications and said I would give reasons later. These are those reasons.

8. This case is about a 6 year old child. Her parents have been embroiled in litigation in both this Court and the Federal Magistrates Court of Australia for years culminating in final parenting orders being made in June 2008. Sadly, the child seems to have been embroiled in the parental dispute. The parties are at war with one another. Each points the finger at the other but what is common ground is that there is no communication of any sort between them.

9. The background is simple. The parties met in 2002 and the mother soon became pregnant. Cohabitation began just days before the child’s birth. It did not last long.

10. The litigation background shows that the first application was filed in July 2003 and there has been at least 15 hearings involving orders.

11. On 19 March 2008 Senior Registrar FitzGibbon made orders in contested interim proceedings. For my purposes, the relevant order was that the father spend time with the child each alternate weekend from after school Friday until the commencement of school on the Monday morning together with one other night overnight each alternate week. The parties agreed to share school holidays including with the father spending three weeks with the child during the long summer holidays. That agreement has significance in this application on the basis that I must presume that the mother thought that the child would be not only comfortable away from her but also that the father had the requisite capabilities to care for the child.

12. The Senior Registrar had the benefit of a family report prepared by Dr W before making any orders. Dr W noted the summary of the respective positions. Importantly for my purposes, Dr W said:

    [The mother] is against overnight stays at this point in time, as she states that [the child] ‘begs me not to take her’ and ‘she gets anxious, has diarrhoea, and has tummy aches’ before she goes to him. She feels that this shows that [the child] is simply not ready for overnight stays.

13. Dr W set out that the father wanted to spend more time with the child saying that police stations, where the handovers were occurring were a source of anxiety for the child. He suggested that changeover should occur at school. Apart from holiday time, that was largely what the Court adopted.

14. Dr W interviewed the child. She found the child very much aware of, and distressed by, the conflict between her parents. She found the interactions between father and child “positive” but disconcertingly, the child described her likes and dislikes very much as though they resembled what the mother wanted.

15. Dr W thought that the transition from parent to parent was part of the problem.

16. In her conclusions, Dr W said that the child was mirroring her mother’s distress and anxiety about contact rather than experiencing it herself.

17. The importance of these independent and expert observations becomes clear when I look at what the mother now presents the Court with in relation to the anxiety and distress of the child.

18. On 11 June 2008, the matter came before Federal Magistrate Walters at which time, final consent orders were made. Those orders provided for the child to spend time with her father on alternate weekends from Friday after school until prior to school on the Monday morning. There is also a provision for time on alternate weekends and specifically in this case, holidays.

19. The significance of these orders is twofold. First, the parties consented to them. Secondly, they are very much the same as those of earlier in 2008.

20. I refused the mother’s ex parte application on 22 December because of the strong litigious history and the existence of the final order. I saw no justifiable reason to determine anything in the absence of the father.

21. When the parties attended on 24 December, I had the benefit of reading the father’s response. His material adds a more complete picture. However, there are significant factual disputes between the parties which I explained I could not determine on the papers.

22. This case belonged in the Federal Magistrates Court but because of the festive season, there was not the available judicial staff to handle the matter and hence, it came to this Court.

23. I explained to both parties that I would use as a starting point the June 2008 orders and they should show me a change of circumstances since that time. Neither party had put their case that way but as each was without legal representation, and it was an interim hearing, I saw it appropriate to use the concept of a change of circumstances as a starting point. Lawyers would understand the concept set out in Rice and Asplund[1]

    [1] (1979) FLC 90-725

24. The Full Court in Miller & Harrington[2] looked at the relevance of showing that circumstances had changed since final orders were made. The Court said:

    …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.

    The application of the rule occurs within proceedings to which the provisions of Division 12A of Part VII of the Act apply. More specifically, the application of the rule occurs as part of “child-related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.

    Included among the mandatory requirements upon a court are: the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ(1)(a)) and to “deal with as many aspects of the matter as it can on a single occasion” (s 69ZQ(1)(g)).

    The provisions of s 69ZR(1), empower the court to “make a finding of fact in relation to the proceedings”, to “determine a matter arising out of the proceedings” and to “make an order in relation to an issue arising out of the proceedings” if the court considers that “it may assist in the determination of the proceedings”. The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “… at the same time as making final orders”.

    …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.

    The application of the rule occurs within proceedings to which the provisions of Division 12A of Part VII of the Act apply. More specifically, the application of the rule occurs as part of “child-related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.

    Included among the mandatory requirements upon a court are:  the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ(1)(a)) and to “deal with as many aspects of the matter as it can on a single occasion” (s 69ZQ(1)(g)).

    The provisions of s 69ZR(1), empower the court to “make a finding of fact in relation to the proceedings”, to “determine a matter arising out of the proceedings” and to “make an order in relation to an issue arising out of the proceedings” if the court considers that “it may assist in the determination of the proceedings”.  The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “… at the same time as making final orders”.

    [2] [2008] FamCAFC 150

25. In SPS and PLS[3], Warnick J held:

    64.… in strict logic, if a judge is unable to determine on the papers if a change of circumstances, sufficient to embark on a fresh hearing of a parenting issue exists, then what the judge should embark upon is a hearing directed to that question, not one directed to “how the welfare of the children should best be served”.

    65.However, ellipsis in logic or not, subsequent authority has clearly reiterated that if the rule is not applied as a preliminary matter, then the hearing that follows is a full hearing of the “custody dispute”

    [3] (2008) FLC 93-363

26. The Full Court looked at the decision of Warnick J and said:

    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.

    …

    Adapting the language used by Warnick J in SPS and PLS, the question for consideration is: assuming the evidence of the mother is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?

27. This is a case where a full hearing may be justified because it is impossible on the disputed facts to determine not only who is telling the truth but also what is in this child’s best interests for the future. Each parent’s preliminary application is designed to cut the other parent out of the life of the child.

28. Hence, I have looked for evidence presented by either party which not only shows that something of substance has happened since the last orders were made but at the same time justifies the Court re-opening matters fully.

29. I have no doubt that there are matters that warrant investigation but having regard to the disputed facts of the parties, I have no reliable evidence upon which I could say that something significant has occurred since June 2008 to warrant changing the orders immediately on an interim basis sufficient to meet the needs of the child. In this case however, there is a basis to allow a further hearing.

30. I turn then to what evidence I was presented with in relation to the interim issue of suspending the orders from the perspective of both parties and leaving the child with that parent.

31. The mother’s evidence was that the child is reluctant to go with her father to the point of being anxious and distressed. She described a child who was physically ill with stomach aches and diahorrea. Much of this is consistent with what Dr W witnessed.

32. The mother said the child showed “mixed emotions anxiety, insecurity and anger”, a state which she described as “heartbreaking”.

33. The mother conceded there is no communication between she and the father and said that he had refused to go to a mediation session.

34. The mother also described scenes told to her by the child about what happened in the father’s home. The father denied that they occurred.

35. There was an incident according to the mother at the school which involved the school teachers but it was also denied by the father. There was no evidence from the school about any concerns that they might have. On the contrary, the child’s school report shows no problems. The mother expressed concerns about the child receiving a “C” report which is described as “standard”. I reject the suggestion that that implies that all is not well.

36. The mother said that she had not been able to contact the child for seven days. There is a provision in the June 2008 orders for the mother to telephone the child and she said that the telephone was not answered and there was no voicemail. The father said that he had voicemail and was not aware of any such call. No doubt on a final hearing, the mother will show her telephone account indicates she did not did not make the call. Hopefully as a result of the orders I have made, that problem of telephone communication will have evaporated.

37. The father’s evidence amounted to a denial of any concern. He acknowledged that the child did become anxious and distressed at handover but that should not be an issue with limited contact between the parents now.

38. Having regard to the matters set out by Dr W and the subsequent consent orders, it is hard to see what has changed. The father said that the mother was keeping the child from school on his days so that he could not spend time with her. That is certainly borne out by the school absences report which is mystifyingly consistent with what the father said. The mother said that it was all explainable and there were medical certificates to support the fact that the child was sufficiently unwell to be removed from school. What was not said was why that would be necessary if in June 2008, the mother acknowledged the father’s capacity as a parent sufficient to enable him to care for a sick child. In this case, there is an order for equal shared parental responsibility but it is common ground that no such joint decision-making has occurred.

39. The father’s evidence is that it is time for him to take over the full time responsibility for the child. He may be right. If there is manipulation or parent alienation continuing, the child may be better cared for in an environment other than where she is currently residing. However, without some specific expert evidence, I would not make any such finding at this time. I do not know how the child would settle in a changed environment of such a significant nature even though the father conceded that initially it would be difficult for her.

40. The father expressed the concern that I also had about the child being taken to a child psychologist without his knowledge. The mother said that there was no order stopping her from doing so but I expressed concern that it became a systems-abuse and parenting responsibility problem.

41. There is no evidence that the child is currently distressed or that she is not being properly cared for by her father.

42. There is no factual basis showing something significant has occurred since June 2008 which would justify an urgent amendment to the orders.

43. Even though this is an interim, urgent and truncated hearing, the legislation still requires consideration of the concepts set out in the Family Law Act 1975 (Cth) (“the Act”).

44. Part VII of the Act provides the structure for the determination of any parenting dispute.

45. Section 60B(1) of the Act provides as follows:

    (1)      The objects of this Part are to ensure that the best interests of children are met by:

    (a)ensuring 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; and

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount but not the only consideration.

2. Section 60CC(1), provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

3. Sections 60CC(2)(a) and (b), provide as follows:

   (2)The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

4. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.  The evidence presented to the Senior Registrar in March 2008 would suggest that there was a strong and meaningful relationship between father and daughter. That relationship seems to be under some risk at the moment with the mother removing the child from school so that there is limited contact between father and child.

5. It is important to consider from the respective proposals of the parties, how the child would benefit from having a meaningful relationship as it has been defined above. Sadly, on their respective interim applications, both parents desire to remove the other parent from the child’s life. There is no evidence before me that would justify that occurring at the moment and certainly not on the uncorroborated assertions of the parties.

6. I do not find that there is any evidence of physical harm or psychological harm to the child.

7. The other considerations are:

   (3)…

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k)any family violence order that applies to the child or a member of the child's family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant.

   (4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

   (a)has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)to spend time with the child; and

   (iii)to communicate with the child; and

   (b)has facilitated, or failed to facilitate, the other parent:

   (i)participating in making decisions about major long‑term issues in relation to the child; and

   (ii)spending time with the child; and

   (iii)communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

   (4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

8. In respect of s 60CC, I am conscious that the mother is adamant about the child’s views and points to the psychologist’s report. As I said, that report is unhelpful. Each party needs to be cautious to ensure that the child is removed from the conflict.

9. The evidence is that each parent has a close relationship with the child. The concern seems to be the mother’s anxieties causing problems for the child.

10. Neither party is currently willing to facilitate and encourage the relationship between the child and the other but on the facts presented, I am unsure whether that is deliberate or not. That is a matter that needs comprehensive examination and evidence.

11. The mother says that on-going separation of she and the child is harmful but I have only her word for that. The father says that the child is settled and happy with him. I have made provision for some communication during the three week holiday period only because of the festive season.

12. I am concerned about the capacity of each parent to provide for the needs for the child and again, the evidence is not available to me to make any finding on an interim basis.

13. As to the question of the attitude to parenting, the father asserts that the mother is alienating the child from him. There is some support for that in Dr W’s report but on an interim basis and without the evidence being tested, I would not make that finding. If it is deliberate, it is serious.

14. I am aware of a family violence order but it pre-dates the June 2008 orders.

15. Because this is an interim matter where there are existing orders for equal shared parental responsibility, it is not appropriate for me to contemplate that issue again at this stage.

16. In the circumstances, I do not find that there is any evidence which would justify me changing the orders made in June 2008. I do however find that there is a problem here that warrants investigation further and I propose to manage the matter after the parties have attended a child responsive program.

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:  31 December 2008