Bertram and Mall

[2010] FamCA 1195

FAMILY COURT OF AUSTRALIA

BERTRAM & MALL [2010] FamCA 1195

FAMILY LAW – CHILDREN – With whom a child lives – Rice & Asplund issue

Family Law Act 1975 (Cth)

B & J [2009] FamCAFC 103
Marsden & Winch [2009] FamCAFC 152
In the Marriage of McEnearney (1980) FLC 90-866
Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383
Rice v Asplund (1979) FLC 90-725
SPS and PLS [2008] FamCAFC 16

APPLICANT: Ms Bertram

RESPONDENT: Ms Mall

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2472 of 2010

DATE DELIVERED: 24 DECEMBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 14 DECEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HALLIDAY

SOLICITOR FOR THE APPLICANT: ROBERT HALLIDAY & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR WILSON

SOLICITOR FOR THE RESPONDENT: MATTHEW OLDHAM

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CE FAMILY LAWYERS

Orders

1. That the application filed 23 July 2010 and the response thereto filed 3 September 2010 are both dismissed.

2. That the mother pay the grandmother’s costs in a sum to be agreed and failing agreement as assessed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That all proceedings be removed from the list of cases awaiting a hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2472  of 2010

MS BERTRAM

Applicant

And

MS MALL

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The application of Ms Bertram (the mother) to alter parenting orders made in 2008 in favour of Ms Mall (the grandmother) concerning C (the child) born in March 2000 came before me in the Judicial Duty List on 14 December 2010.

2. The mother sought a discharge of existing orders and that the child live with her in a shared arrangement with the grandmother. She sought that each have seven nights per fortnight.

3. The grandmother’s position was that there should be no change to the orders made in 2008. She also sought that the mother’s application be dismissed at this preliminary stage.

4. I use the description “preliminary stage” cautiously because there is a litigious history culminating in the 2008 orders that needs to be considered.

5. There were final orders made by consent of the parties on 1 May 2008 under which the child was to live with the grandmother and spend time with her mother. It is relevant to note that the orders were made in a contested environment after three days of hearing. The dispute had been of some years standing and there were a number of family reports.

6. The child has lived with her grandmother for almost seven out of her ten years.

7. Nothing I have read suggests that that arrangement has not been properly carried out since the orders were made in 2008. The mother desires to change all of that.

8. On 23 July 2010, the mother filed an application in the Federal Magistrates Court at Dandenong seeking to discharge the orders of 2008 and substitute them with orders reflecting her position as I have outlined it above.

9. The matter was set down for hearing on 8 September 2010 in Dandenong.

10. On 3 September 2010, the grandmother filed a response. She sought, in the alternative, either a dismissal or a transfer to this Court.

11. On 8 September 2010, with both parties represented by counsel, the application was simply transferred by Phipps FM to this Court.

12. As is the practice of the Federal Magistrates Court of Australia, each party had filed affidavits of their evidence in chief on the assumption that the matter should be able to proceed as a trial of disputed issues immediately.

13. On 13 October 2010, a procedural hearing was conducted by Registrar Kaur at which the respective solicitors for the parties attended. As I understand, the hearing was by telephone. The orders made were that in addition to the appointment of an Independent Children’s Lawyer, the applications were adjourned to my list on 14 December 2010. The Registrar conveniently noted on the order “See Notation”.

14. The notation attached to the order reads:

    Respondent argues that there is a threshold issue as a Rice & Asplund argument and no change of circumstances exist for Mother to bring an application hence matter listed in judicial list.

15. On 14 December 2010, Mr Halliday appeared as the solicitor for the mother, Mr Wilson of counsel appeared for the respondent grandmother and Ms Agresta of counsel appeared for the recently re-appointed Independent Children’s Lawyer Mr Edney. Mr Edney had held that position in the 2008 hearing.

16. Mr Halliday submitted that the case should go further, a family consultant should be involved and the Independent Children’s Lawyer should interview the child.  He referred to the fact that his client had not answered the affidavit of the mother. He thought he had not seen the order of Registrar Kaur and was uncertain about whether there was a clear statement that the application was going to proceed on a Rice & Asplund point.

17. Mr Wilson said that the grandmother’s position was obvious from her response in September and her affidavit challenged the necessity to allow the matter to go to trial. He said the mother had had plenty of opportunity to answer the grandmother’s affidavit and had chosen not to do so. He said his client wanted to proceed.

18. Ms Agresta adopted the position that the 2008 orders were working and on the evidence, there was no basis for altering them.

19. Before turning to the evidence, I shall set out the approach as I understand it which I consider needs consideration.

20. In Rice & Asplund, Evatt CJ said:

    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. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.

21. In SPS and PLS [2008] FamCAFC 16, Warnick J said:

    The “rule” in In the Marriage of Rice and Asplund (1979) FLC 90-725 - (at least, in one of its shorter formulations) that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.

22. His Honour importantly noted that the application of the rule in Rice and Asplund was necessarily connected with the evidence that was presented.

23. His Honour then discussed the approach that should be taken. He said:

    Discussion of the rule has not always used consistent terminology. In particular the term “threshold” has sometimes been used in a temporal sense, to indicate something done at the beginning of a hearing as opposed to at the end and, at other times, the term has been applied to consideration of the rule (irrespective of when in a trial that was given) ahead of consideration of (or as the initial application of) other relevant or potentially relevant principles.

    I will use the term “threshold” to mean, “the first question to be determined” and which, depending on the answer to it, may be dispositive of an application for parenting orders, irrespective of when in a hearing it is posited and answered. I will refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a “preliminary matter.

24. His Honour reflected on the rule and said that one of the things it showed was:

    At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

    Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.

25. Amongst other things, Warnick J referred to the recognition, relevant here, that a purpose of the rule was to discourage endless litigation. His Honour said:

    I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.

26. That view was made clear in In the Marriage of McEnearney (1980) FLC 90-866.

27. Warnick J cautioned about the approach to the assessment of the evidence:

    In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before a court.

28. His Honour reinforced again that:

    At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

29. The position in that case was then summarised:

    Thus, in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.

30. In Marsden & Winch [2009] FamCAFC 152, the Full Court agreed with many of the observations of Warnick J.

31. In Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383 Warnick, Boland and Murphy JJ distinguished the rule in Rice & Asplund from procedures such as “striking out” and “summary dismissal”. The Court did not accept that the only way which the rule in Rice & Asplund could be applied at a preliminary stage was on the basis that the case of the applicant for parenting orders was taken at its highest. Importantly, the Court said:

    [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.

32. The significance of the historical finding to examine whether change had occurred was the subject of comment by Thackray J in B & J [2009] FamCAFC 103. His Honour said:

    The weight to be afforded to earlier findings would depend entirely on the circumstances. If all of the evidence pertaining to the original finding was led again, the trial judge may form different views on credibility or place different weight on aspects of the evidence and therefore come to a different conclusion.

    However, if evidence pertaining to a previous finding is not given again, the trial judge is not automatically entitled to proceed as if the finding based on that evidence had never been made. In some circumstances such a course may be appropriate. For example, if the evidence was highly contentious and the finding was made entirely on an assessment of the credibility of the witness, the court may give it little weight, or none at all.

33. Here, the three significant things to be said about the earlier 2008 hearing before Murphy J are:

    (i)the final parenting orders gave the predominant parenting role to the grandmother with restricted time to the mother;

    (ii)the orders were consented to after a hearing had commenced and upon settlement being reached, the parties encouraged the Court to make the orders on the basis that they were in the best interests of the child; and

    (iii)no challenge is now made to say that the 2008 orders were inappropriate.

34. The mother now urges the Court to consider the matter on the basis that she has changed and put her house and life in order. That was not the way her solicitor put her case but it is the substance of her argument.

35. Mr Halliday said there had been a significant change since the 2008 orders. He said the changes fell into thee categories:

    (i)the expressed wishes of the child;  

    (ii)the evidence of a diminishing role of the grandmother; and

    (iii)the grandmother had negatively portrayed the mother to the child.

36. Insofar as there may be some evidence of those things, I could only draw them by inference and not strongly at that and certainly not enough to say that the case should go beyond the preliminary stage.

37. Before assessing the significance of the evidence, I propose to highlight that which the parties asked me to take into account.

38. Before doing so, because Mr Wilson had indicated he was going to refer to the grandmother’s evidence which highlighted much of the procedural and evidentiary matters of 2008, I asked Mr Halliday whether he was seeking an adjournment because he had said that his client had not responded to the grandmother’s evidence. He said he was not and was content to proceed.

39. The mother had an opportunity to put her case and had time after contemplating the grandmother’s evidence to put more material before the court and chose not to do so. I must deal with the matter on the basis of the evidence presented but also contemplate whether there might be more evidence from the mother’s side that might elaborate on or highlight better, the matters that the Court would have to consider if it was to apply the relevant provisions of Part VII of the Family Law Act.

40. Using the categories as defined by Mr Halliday, I turn first to the views of the child.  The mother said that the child had told her how much she “misses” her and that she wished to stay with her “more”.  The mother then set out a variety of comments which she said were regularly made along the lines of why she could not stay with her mother more often.  The underlying inference in the child’s remarks was that she did not want to go back to her grandmother’s home at the conclusion of the periods of time.  Amongst the comments were suggestions that the grandmother was not complimentary of the mother but those statements do not assist in determining the child’s views. 

41. Nothing in the mother’s evidence indicated her reaction to those statements.  Nothing was said as to the context in which the statements were made.  Nothing was said as to how she handled the child’s inquiry.  There is some significance in that because it was common ground between the parties that up until 2008, apart from the child living with the grandmother for a very large portion of her life, the mother’s lifestyle was undesirable from a parenting point of view.  That lifestyle involved drugs and violence.

42. Mr Halliday submitted that on a prima facie basis, the arrangements here ought to be reviewed because time had passed.  He conceded however that the passing of time by itself, would not be a basis to review previous orders because to do so would fly in the face of giving children a settled life.  Mr Halliday pointed to the fact that children grow in maturity and wondered whether a child had to wait to the age of 14 years to exert some powerful influence for change.  In my view, none of those matters is of relevance.  Each case must be taken on its circumstances. 

43. All of the matters in s 60CC which guide the best interests principle still need to be contemplated.  As children go through their teenage years, they exert intellectual muscle and test boundaries.  I have no doubt that a teenager who had not lived with a parent might be very inquisitive about the parent’s lifestyle and express a desire to live with that parent.  That is not the case here as I am dealing with a child who is settled.  I draw that conclusion from the evidence of the grandmother who said that if the child made the statements, they were without foundation.

44. Mr Wilson pointed to the fact that throughout the 2008 trial, the Court had evidence that the child consistently said that she wanted to live with her mother including to the family report writer. 

45. The weight to be given to the views of the child depend on a variety of things including the level of maturity.

46. In the grandmother’s affidavit, she set out an extensive array of things that the child is involved in.  Contrary to the suggestion of the mother that the grandmother had a diminishing role in the child’s life, the evidence of the grandmother extensively set out the activities that they do together in what was described as “one-on-one” time.  They have been on holidays together, been to cultural activities and spent time with relatives to enable the child to play with other children. 

47. Counsel for the Independent Children’s Lawyer said that she and Mr Edney had reviewed all of the material and there appeared to be a good and full life for the child with the grandmother and that nothing suggested in the mother’s material any significant change to the child’s circumstances.

48. The second category relied upon by Mr Halliday was that there was a diminishing role of the maternal grandmother.  That, apart from the reference to statements vaguely made by the child, revolved around the assertions that the grandmother’s other adult daughter was fulfilling parenting roles.  Suggestions were made that the child’s aunt was collecting the child from school and activities.

49. The evidence of the grandmother highlighted the extensive activities to which I have just referred but she also went on to explain the various times that she has arranged for the child to be collected by her other daughter for pragmatic reasons.

50. The mother pointed to the communication book and my attention was drawn to correspondence between the lawyers for the parties in which the grandmother was critical of the mother’s approach to parenting and the mother was defensive.  The mother was very defensive in her affidavit of her own lifestyle pointing to the significant changes that she had made.  She referred to the change to healthy food and lifestyle and particularly how the child benefits from that.

1. Along with the grandmother, the mother pointed to the fact that she was involving the child in healthy activities and she has established a routine.  Those are not changes for the child.  They are changes for the mother because the child has had those routines orchestrated by her grandmother for a number of years.  All of the evidence which is complimentary of the mother, shows that she has got her life in order. 

2. Sadly, there is still an uneasy relationship between the parties.  That was the case in 2008 but reading the grandmother’s evidence, it was she who was focussed on the best interests of the child then because of the aberrant lifestyle of the mother.  I point again to the fact that in 2008, the parties consented to orders and clearly told the Court that they were in the child’s best interests. 

3. In a preliminary hearing, I can still make findings of fact if the inferences that I can draw are obvious.  There are so few contested facts in this case that combining the two affidavits enables me to get a very clear picture of the evidence that each is presenting.  Whilst there are conflicting versions of how the parties see each other, there is no evidence to show that there is any impact on the child of the change in lifestyle of the mother. 

4. Counsel for the Independent Children’s Lawyer referred to the fact that there was no evidence by the mother that the grandmother was undermining her role.  There was no evidence about the impact of any of these changes in lifestyle on the child’s emotions, health or schooling.  All of the indications would suggest that the child is not only settled but progressing well.  Ms Agresta said that what the evidence of the mother showed is that she now wants to be a significant parent.  It was because of that, the Independent Children’s Lawyer submitted that the orders were meeting the child’s needs. 

5. The third category related to the way in which the mother was portrayed by the grandmother.  The statements attributed to the child would not enable me to draw any adverse inference against the grandmother.  I say that even without the evidence being tested.  There is no suggestion by the mother that the statements were deliberately done to undermine her role as a contact parent nor was there any indication of how she responded or for that matter, how the child responded.  For the reasons just articulated, all of the evidence would show that there is no adverse impact on the child of the way she is being parented by both women. 

6. Mr Wilson for the grandmother pointed to the fact that the communication book seemed to be the source of the criticisms of the mother.  As it should, the communication book was a means of exchanging information between the adults.  Nothing in the book suggested there was any impact on the child of the views of the parties. 

7. In summary, looking at the three categories to which Mr Halliday referred, the grandmother has comprehensively answered all of the issues in a positive way.  Rather than adopting a defensive approach, her evidence clearly showed the benefits for the child in a continuation of the existing arrangements.  It is hard to see how anything the mother said would require the grandmother’s evidence to be tested.  Putting the mother’s evidence at its highest, it is hard to see it being controversial.  None of the mother’s evidence indicates anything more than she desires to be the parent she always should have been.

8. Relying on the authorities to which I have referred above, the focus of the inquiry is still a positive one even at this stage.  That focus must be on the best interests of the child.  To do that, clear attention must be paid to the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

9. I am entitled to consider the basis upon which the orders were made in 2008 to gauge whether there has been some change.  That approach must be cautiously undertaken to ensure that the evidence now presented is not likely to materially change if the matter went further down the litigation path.  Mr Halliday’s position was that there should be a family report in which the views of the child were examined.  As Evatt CJ said in Rice and Asplund, one of the problems of reopening a parenting case is the psychological harm that goes with it, upon the child.  The child spoke to a family reporter a number of times and although she has grown and changed in her maturity, her views were clear in 2008 and evidence indicates that not a lot has changed.  As such, her views whilst an important factor, are not the agent of change here.

10. Section 60CA provides that 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 consideration. 

11. Deciding whether to deal with a matter at a preliminary stage to allow it to proceed further or not could appropriately fall within any of the definitions set out in s 64B(2) of the Act.

12. Section 69ZN makes clear the principles that are to be used by the court in conducting child-related proceedings.  Those principles are mandatory.  I set them out below. 

    (3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

    (4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

    (5)The third principle is that the proceedings are to be conducted in a way that will safeguard:

    (a)the child concerned against family violence, child abuse and child neglect; and

    (b)the parties to the proceedings against family violence.

    (6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.

13. Each of those principles requires the Court to focus on the needs of the child and the impact upon the child of reopening these proceedings.  It is the obligation of the Court under the second principle to actively control the proceedings to avoid harm to the child.

14. Section 60B sets out the objects and principles under which Part VII operates.  Having considered those, I turn to s 60CC.

15. All of the evidence suggests that the child is enjoying a meaningful relationship with her mother and benefiting from it.  There is no suggestion of any physical or psychological harm as a result of the existing orders. 

16. I have already dealt with the views expressed by the child and do not think that they should be given any weight if those are the matters upon which the mother relies.

17. All of the evidence suggests that the nature of the relationship between the child and her grandmother is sound and that the grandmother has the capacity to provide for the needs of the child including her emotional and intellectual needs.  I do not find on the evidence that there is any suggestion that the grandmother’s role is diminishing.  In the same way, I find that the grandmother has continued to show a responsible attitude to her role as a carer of the child.  No doubt whilst the mother spends time with the child, she is doing all of the things that the child enjoys and benefits from. 

18. Whilst there is an indication in the material that the adults complain about each other, none of those matters is a significant change in circumstances.

19. There is no evidence that I could conclude if I permitted the proceedings to go further that there will be evidence pointing to the fact that there needs to be change in the child’s circumstances. At her age, the child is in a settled environment and all of the evidence shows that she is progressing extremely well.

20. No-one has suggested in the proceedings that there has been a failure to facilitate the existing arrangements or to not fulfil them. 

21. The first question therefore to be determined is whether there is any benefit to the child in reopening the matter.  In my view it is in her best interests on the evidence that the existing situation continues because the mother does not point to any evidence that might convince a court based on the factors set out in s 60CC that a change is necessary or needs to be investigated.

22. As I pointed out, one of the principles is to ensure child-focussed parenting in the conduct of the proceedings.  The grandmother and the mother have been through a number of years of litigation at no doubt huge expense and much emotional trauma.  That must impact upon the child who has a right to enjoy the life that seems to have provided success at school and proper development.  I appreciate that I am determining the matter on the merits based upon the evidence presented.  In my view, there is no evidence presented by the mother that warrants the matter being sent for a comprehensive hearing arising out of any change since the 2008 orders.  Accordingly, the mother’s application must be dismissed.

23. Each party required me to consider the question of costs. 

24. The mother’s position was that if she was successful, costs should be reserved but if she was unsuccessful, each party should bear their own costs.  The grandmother’s position was that if she was successful, the mother should be ordered to pay costs.

25. The Independent Children’s Lawyer did not seek costs. 

26. Section 117 of the Act governs the issue of costs. It provides that each party shall bear their own costs unless there are circumstances that justify a court making an order. If a court is minded to find there are justifying circumstances, it must take into account the matters set out in s 117(2A) of the Act.

27. In this case, the mother was put on notice right from the commencement of the proceedings.  Mr Halliday pointed to the fact that the mother had offered to go to mediation and the grandmother rejected that course.  In the proceedings at Dandenong, the grandmother’s position was always going to be that she would argue the preliminary point.  The matter came before this Court and again, the mother was put on notice.  As I understand it, it was going to argued on the basis of the material before the Court and nothing in the mother’s evidence responded to the comprehensive picture portrayed by the grandmother.

28. In my view, there are justifying circumstances here.  The mother knew that her position was being challenged as a preliminary threshold issue.  It was important therefore that she gave consideration to the evidence that she was going to present that would clearly target the preliminary issue.  Accordingly, I find there are justifying circumstances. 

29. Although I do not have comprehensive financial pictures of each party, it is said that both are in employment and there are no legal aid considerations.  There is no suggestion of non-compliance with orders.  As I pointed out in the hearing, costs orders are not intended as a punishment but rather a compensation for the expense incurred in participating in the proceedings.  The mother knew at all times that she faced an argument that she had to establish change and on the findings above, she has not done so.  Accordingly, the mother should pay the grandmother’s costs.  No application was made that costs be ordered on an indemnity basis and I would not order that in the circumstances.  The costs should be calculated according to the schedule to the Rules.  Failing agreement, the costs will have to be assessed.

I certify that the preceding Seventy Nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 December 2010.

Associate: 

Date:  24 December 2010