BENSON & DRURY - [2019] FCCA 3472

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENSON & DRURY

[2019] FCCA 3472

Catchwords:
FAMILY LAW – Children – where final parenting orders were made in August 2017 permitting the mother to relocate from Adelaide to Melbourne with the children – where the father seeks orders for the children to return to live in Adelaide – where the mother asks that the court determine the Rice & Asplund question as a threshold issue - where the children suffer mental health issues – whether the deterioration of the children’s mental health constitutes a change in circumstances sufficient to justify reopening proceedings – whether a Family Report should be prepared before the principles in Rice & Asplund are considered – applications dismissed.

Cases cited:

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16

Benson & Drury [2017] FamCA 578

Miller and Harrington (2008) FLC 383

Poisat & Poisat (2014) FLC 597

Applicant:

MR BENSON

Respondent:

MS DRURY

File Number:

ADC 3749 of 2015

Judgment of:

Judge Kari

Hearing date:

31 October 2019

Date of Last Submission:

31 October 2019

Delivered at:

Adelaide

Delivered on:

29 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr Praolini

Solicitors for the Applicant:

Newman Lawyers

Counsel for the Respondent:

Ms Pyke QC

Solicitors for the Respondent:

D'Angelo Lawyers

ORDERS

That the following be dismissed:
(a)Paragraphs 5, 6 and 7 of the Final Orders sought by the father in his Amended Response filed 14 September 2018;
(b)Paragraph 4 of the Interim Orders sought by the father in his Amended Response filed 14 September 2018;
(c)The Application in a Case of the Father filed 10 April 2019; and
(d)The Application in a Case of the father filed 12 July 2019.
That all parenting proceedings otherwise be dismissed as finalised.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3749 of 2015

MR BENSON

Applicant

And

MS DRURY

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the parties two children B who is almost 14 years of age and C who is eleven years of age.
The proceedings were commenced by the father as he wants the court to reconsider the final parenting orders made at the conclusion of a trial on 9 August 2017, which permitted the mother to relocate the children from Adelaide to Melbourne in January 2018.
The central dispute between the parties is whether the agreed deterioration of the children’s mental health constitutes a change of circumstances so as to warrant the Court reconsidering the parenting arrangements for the children.

Background

Sadly for the children, their parents have been in litigation now for a period in excess of four years. It is the view of various experts over a significant period of time that the ongoing litigation between their parents has had and continues to have a significantly deleterious effect on the children.
It should also be noted from the outset of these reasons, that the parties competing applications for property settlement were heard by me recently and I have reserved my decision.
The details and background of the parties relationship, so far as it relates to the parenting proceedings is in summary as follows:
a)The mother is 45 years of age and she is a professional.
b)The father is 52 years of age and he is a professional.
c)The parents were in a de facto relationship for a little over ten years, ending on 4 November 2014.
d)The mother and the children presently reside in Melbourne, having relocated there from Adelaide in January 2018 pursuant to the Final Orders.
e)There is some conjecture as to where the father resides. The father asserts that he is now residing in Melbourne, having taken out a lease on a unit in Suburb FF, Victoria on 5 September 2019 and moving personal belongings and furniture to the unit.
a)The mother does not accept that the father is now permanently residing in Melbourne. While this is an interesting issue, I am not satisfied that any findings need to be made about that topic to determine the current applications before the Court. Moreover, I am not certain that I can make findings about this issue without the benefit of cross examination of the father.
The Final Orders that were made in relation to the children on 9 August 2017 provide in summary as follows:
a)That the parties have shared parental responsibility in relation to the children, excluding as to their health and education;
b)That the mother have sole parental responsibility in relation to the health and education of the children provided that she keep the father informed and consult with him about those topics, but that if no agreement is reached then the mother shall make the final decision and advise the father in writing;
c)That the children live with the mother;
d)That the mother be permitted to relocate the children from Adelaide to Melbourne from the commencement of 2018;
e)That if the father does not relocate from Adelaide to Melbourne then the children spend time with him
i)In Adelaide:
1.   For three long weekends each calendar year;
2.   For one additional weekend in each school term;
3.   For all of the Easter long weekend in odd-numbered years;
4.   For the first half of the Christmas school holidays including Christmas Day in even-numbered years and for the second half in odd-numbered years;
ii)In Melbourne for two further weekends in each school term if the father elects to travel to Melbourne.
f)That if the father relocates to Melbourne then the children spend time with him:
i)On alternate weekends from the conclusion of school Friday until the commencement of school Monday;
ii)In each intervening week from the conclusion of school Wednesday until the commencement of school Thursday;
iii)For one half of all school holidays; and
iv)On special occasions including Father’s Day, the children’s birthdays and the father’s birthday.

The legal framework

The need to determine whether there has been a change of circumstances before re-opening the parenting proceedings, is one which arises as a result of the long established principle set out by the Full Court in Rice & Asplund (1979) FLC 90-725, namely:
“… 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, to quote Barber J, there is some changed circumstances 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… It is 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… Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.”[1]
[1] 78,905 (Evatt CJ).
In addition, it is also clear from the Full Court decision in SPS & PLS [2008] FamCAFC 16 that:
a)The rule in Rice & Asplund is simply a manifestation of the best interest principles;[2] and
b)“The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.”[3]
[2] [48].
[3] Ibid [84].

The competing position of the parents

The father’s position is:
a)That the deterioration of the children’s mental health, and in particular that of X, is such that the rule in Rice & Asplund is overcome; or
b)In the alternative that the Court should urgently order a family assessment report to assess the current circumstances of the children, before determining the question of whether there has been a sufficient change of circumstances.
The mother’s position is:
a)That she opposes any reconsideration of the final parenting orders, asserting that there is nothing new in the presentation of the children and that the rule in Rice & Asplund be invoked on a threshold basis; and
b)That the father is simply wanting to revisit the question of relocation previously determined by the court, and that he should not be permitted to do so.

Has there been a change of circumstances?

In the context of these proceedings the parties appear to agree that:
a)Both of the children have faced significant difficulties in the post separation period with respect to their mental health.
b)X’s present mental health is far more fragile than Y’s. However Y is also recovering from the effects of having suffered glandular fever in late 2017, followed by a diagnosis of Chronic Fatigue Syndrome in or about late 2018.
c)As a result of the myriad of issues facing the boys, they have both had significant periods of time where they have been absent from school in the last two years.
The father’s position is that the worsening of the children’s mental health, and in particular the “serious decline”[4] of X’s mental health since relocating to Melbourne necessitates the court revisiting the parenting orders.
[4] Case Outline of the Father, 1.
Implicit in the father’s position is an acknowledgement by him that the children’s mental health was problematic and a focus of the proceedings in 2017.
Indeed during the hearing counsel for the father identified various passages in the Reasons for Judgment delivered by Justice Berman, and in particular attention was drawn to an entire section of the judgment under the heading “The mental health of the children”, in which His Honour recorded that:
a)X was at that time displaying physical symptoms of anxiety including panic attacks, stomach pains and a dry throat; and
b)X had been consulting a psychologist in the post separation period, and that with worsening symptoms he additionally consulted a psychiatrist.^[5]
[5] Benson & Drury [2017] FamCA 578, [29] – [39].
In addition, attention was drawn by Counsel for the father to passages in the Reasons regarding the evidence of the family assessment report writer Ms CC, including her opinion that X was significantly affected by the conflict between his parents and was seen by the parties as a sensitive child.[6]
[6] Ibid [227].
Attention was also drawn by Counsel for the father and the mother to passages in the reasons regarding evidence given by a further family assessment report writer Ms BB, including her opinion that:
a)Y had reported that X was more affected by the parents separation;[7]
b)X presented as significantly more troubled and could not be persuaded to engage with the family consultant requiring a truncated interview process;[8]
c)When X was asked to talk about his parents X’s distress was “clearly evident” and he was recorded to have “curled up into a foetal position in my chair and sobbed”;[9] and
d)X is a sensitive child who was showing signs of ongoing anxiety and who remained troubled about his parent’s dysfunctional relationship.[10]
[7] Ibid [244].
[8] Ibid [247].
[9] Ibid [248].
[10] Ibid [250].
The father’s Counsel placed significant emphasis on Ms BB’s opinion, accepted by His Honour, that if the children were to relocate to Melbourne, the loss of connection between the children and the father would not likely result in them being overwhelmed to a state of dysfunction.[11]
[11] Ibid [269].
The submission ultimately put on behalf of the father with reference to all of these matters is that the father’s worst fears have come to fruition because since relocating to Melbourne the children have been impacted to the point of “dysfunction”, as evidenced by their lack of school attendance and resultant social isolation, and their reluctance to spend time with the father in recent times.
While the mother agrees that the children, and in particular X, are facing significant hurdles at the present, her Counsel highlighted in her submissions that the deterioration in the children’s mental health, and in particular X’s, must be seen in the context of what has occurred since separation and there being no abatement of the litigation and acrimony between the parents, taking into account that:
a)The mother commenced litigation with respect to the question of property settlement some three months after the final parenting orders were made, with those proceedings only having proceeded to trial in July of this year; and
b)The father filed the current proceedings with respect to parenting orders some eight months after the mother and the children relocated to Melbourne, being some 13 months after the final parenting orders were made.
The mother’s position is that the ongoing disputation between the parties with respect to financial and parenting issues has contributed significantly to the current presentation of the children and in particular X, and that the opinion of the experts in 2017 that X’s anxiety and distress “will only abate when the parental conflict is resolved”,[12] must be given considerable weight when trying to understand the reasons as to why his mental health has deteriorated further, and why it would not be in his best interests for the parenting proceedings to be reconsidered.
[12] Ibid [282].
The thrust of this submission on behalf of the mother is that the circumstances for these children goes to the heart of the very thing that the rule in Rice & Asplund is designed to protect children from; namely the damaging effect on children of the “endless litigation” between their parents.
This submission has some resonance, given additional matters set out in His Honour’s reasons, about which I was not specifically addressed by Counsel, and in particular:
a)Ms BB’s opinion that the “toxic conflict” parental relationship was having a damaging effect on both children and in particular X;[13] and
b)That X had had enough of the conflict between his parents and that his emotional capacity to engage in further dispute was fast coming to an end, and that it was reasonable to consider that a move to Melbourne may in fact be the catalyst for further conflict and litigation between the parties.[14]
[13] Ibid [251].
[14] Ibid [261].
It is also significant to note that His Honour made significant findings in his Reasons as to the existence of family violence perpetrated by the father towards the mother, and that X’s sensitivity and “abject distress at the conflict between his parents is at least in part as a result of the father’s aggressive and coercive conduct”.[15]
[15] Ibid [325].
Bearing in mind that Ms BB had formed those views when she published her report in January 2017, over two years ago now, it is perhaps of no surprise that X, to use Ms BB’s words, has now come to the “end” of his “emotional capacity” as feared by Ms BB, given that the further deterioration of his mental health has occurred against the backdrop of the unabated and ongoing dispute between his parents since that time.
In further support of this submission, the mother’s Counsel tendered a letter dated 28 August 2019 from the Royal Children’s Hospital Melbourne regarding the current status of X’s mental health. The letter from Ms HH, Senior Clinical Psychologist, and Dr JJ, Child and Adolescent Psychiatrist, states that:
a)X has been attending the Child and Adolescent Mental Health Service (CAMHS) at Suburb GG for seven months.
b)During this period, X has presented with symptoms consistent with depression and anxiety, which have led to school refusal and impairment to his day-to-day functioning.
c)It was Ms HH and Dr JJ’s opinion that X’s health “has been adversely affected by his exposure to reported family violence and the ongoing acrimonious relationship (including ligation processes) between his parents.”
d)They had been informed that X was “deleteriously affected” by his last court appearance and considered that he “would likely be similarly affected if made to repeat the process.”
Another submission of the mother is that the court must give consideration to the actual orders that are being sought by the father if he is successful in his application to re-open the parenting proceedings.
As Warnick J identified in SPS & PLS, another rationale for the rule in Rice & Asplund is to avoid the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interest of a child” on the basis of the same factual circumstances.[16]
[16] [2008] FamCAFC 16, [58].
The Final Orders sought by the father in his amended response filed 14 September 2018 with respect to the children are (paraphrasing):
a)That the children be relocated to Adelaide from the commencement of the 2019 year;
b)That the children live with the mother should she choose to relocate to Adelaide with them, and that the father spend time with the children pursuant to the regime provided for in the final orders if he were to relocate to Melbourne; or
c)That if the mother remains in Melbourne then the children spend time with her at such times and on such conditions as determined by the court.
The mother’s position is that the father, by not seeking to set aside the orders made by the court which provided for what is to occur if the parents and the children live in the same state, is really only wanting to re-agitate the relocation question. In addition the mother asserts that the court cannot be satisfied that there is anything to be gained or improved by relocating the children to Adelaide.
Again these submissions have force when understanding the effect of the final orders sought and particularly those that would apply if the parties are living in the same state.
The weight of the submission is amplified when also taking into account that the father does not seek to set aside the orders that the mother have sole parental responsibility for the children’s health and education.
During the hearing, Counsel for the father when pressed, acknowledged that the mother is attending to the children’s health and medical needs appropriately and that she is keeping the father informed about those matters as required by the final orders. Even if that acknowledgement had not been made by Counsel, given the father does not seek any change to the final parenting orders about those matters I am able to infer that there is a tacit acknowledgement by him that the mother is adequately meeting her obligations with respect to the children’s health.
When considering the orders now sought by the father on a final basis, it would appear that he is wanting the court to reconsider the question of relocation, and to have a different judicial officer supplant their views on that topic.
For all of these reasons:
a)I am not satisfied that there has been a significant change of circumstances that make it appropriate for the parenting proceedings to be reconsidered.
b)If however I am wrong about that, and again for the reasons discussed, I do not in any event consider that it would be in the children’s best interest to continue the ongoing litigation between the parents regarding parenting arrangements for the children.

Should the Court delay a determination of the Rice & Asplund question until after the receipt of a Family Assessment Report?

While I accept that it is open to me to apply the rule in Rice & Asplund at any stage of the proceedings,[17] I do not consider that it would be in the children’s best interest for me to do so in all of the circumstances of this case taking into account those matters discussed earlier in these reasons.
[17] See Miller and Harrington (2008) FLC 383, [72]; Poisat & Poisat (2014) FLC 597, [39].

I accept the submissions of Counsel for the mother that the children’s best interests would be best served by ending the litigation between their parents and not subjecting them to any further assessments for the purposes of continuing the litigation between the parents.
I am also mindful that in light of the myriad of health professionals that the children are presently engaged with (all of whom it appears are working assiduously to improve the children’s mental health), I am concerned that if the children were required to undertake any further assessment in the context of litigation, it would be more harmful to their mental health.
For these reasons, I make those Orders set out at the commencement of these reasons.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of Judge Kari

Date: 29 November 2019