Carlson and Ors & Bowden

[2010] FamCA 432

FAMILY COURT OF AUSTRALIA

CARLSON AND ORS & BOWDEN [2010] FamCA 432

FAMILY LAW – CHILDREN – Interim application – Consideration of the “rule in Rice & Asplund” – Final Orders made in December 2008 following a three day trial – Consideration whether there has been a change in circumstances justifying further litigation – No material change within the meaning of the principles – Application dismissed

Family Law Act 1975 (Cth) s 65L

Miller & Harrington (2008) FamCAFC 150

SPS & PLS (2008) FLC 93-363

APPLICANT: Ms Bowden

RESPONDENT 1: Mr Grant

RESPONDENT 2: Mr Carlson and Ms Brack

FILE NUMBER: BRC 9331 of 2007

DATE DELIVERED: 18 May 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 18 May 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms M.L. Cable of Journey Family Lawyers

1^ST RESPONDENT: No appearance

2^ND RESPONDENTS: Appeared in person

Orders

1. The application filed by the mother on 24 March 2010 be dismissed.

2. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

3. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 9331 of 2007

MS BOWDEN

Applicant

And

MR GRANT

Respondent 1

And

MR CARLSON & MS BRACK

Respondent 2

EX TEMPORE

REASONS FOR JUDGMENT

1. Orders were made by me in December 2008 after a three-day trial in respect of the appropriate parenting arrangements for L, who was born in October 2004.  At the time of the trial, the child was about four.  He is now about five and a half.  He is, then, still young and has not started school. 

2. By an application filed by the mother on 24 March 2010, she seeks parenting orders that, contrary to the orders made at that time, would see the child return to her full time care with each of she and the father to have equal shared parental responsibility with respect to him. 

3. The 24 March orders provide for time between the child and his father and also provide for time for the child to spend with the paternal grandparents as agreed, and failing agreement, on one weekend per month from three o’clock Friday until before school on Monday. 

4. In the orders sought by the mother, no school or other holiday time is sought between the child and the grandparents.  The father does not appear in these proceedings and has filed no material since the conclusion of the trial and the making of orders some 17 months ago. 

5. As part of the orders made by me, an order was made that supervision pursuant to section 65L of the Act take place. Furthermore, it was directed that a report be prepared and made available to the parties:

   ...not later than 22 October 2009, and upon receipt of the family report, all parties have liberty to apply to have the matter relisted before me on the giving of 14 days’ notice. 

6. Those orders were made against a background where, as the reasons indicate, it was hoped that the relationship between the parties, and in particular between the grandparents and the father, would result in there being agreed time between he and the child and where it was hoped that the relationship between the child and the mother might also be fostered by cooperative arrangement between the parties. 

7. That hope was canvassed by reason of the evidence revealing that each of the mother and the father were each in the process of recovering from drug addiction and had other personality and, perhaps psychiatric, issues.

8. It is, though, important to record that the mother contended at that earlier trial that interim orders be made for a period of 12 months and that her application was rejected.  In the earlier reasons, the following was said:

   198.  The mother contends for interim orders lasting not less than 12 months.  Mr F saw some advantages in this.  Primarily he said that it would perhaps allow some issues with respect to L to “become more obvious” in terms of an assessment.  As L got older, there was an opportunity for “greater longitudinal assessment.”  Dr M was of a similar view, saying that by reason of L’s current developmental age, an interregnum would allow it to become “more obvious how L is faring.”

   199.   The disadvantage, as it seems to me, is that there is a significant risk of prolonging and, in a sense, promoting the conflict between these parties.  I am extremely pessimistic that there will be any abatement of the conflict in any circumstances, but to make orders that, in effect, beg a re-agitation of issues in 12 months or so gives a future focus for that conflict.

   200.   Mr F also saw this as a potential disadvantage.  He extended his concerns, in that respect, even to final orders, which included a section 65L orders.  To use his words, that “still keeps it within the confines of the court.”  Dr M also saw the potential for increased hostility between the parties as being a disadvantage in such proposal. 

   201.     I have already said that I consider it axiomatic to L’s best interests that as much stability as possible be introduced into, and maintained in, his life.  I have concluded that this will likely best occur if he is to be placed in the predominant care of the grandparents.  To make interim orders is, in my view, to derogate from the very stability I consider best for L.

9. However, contrary to the concerns expressed by Mr F, I ultimately made an order pursuant to section 65L.  For the most part, this can be explained by the orders for time for L to spend with either his mother or father being dependent upon what was then relatively early days in the asserted recovery by each of them from their drug addiction.

10. In that respect, reference to the orders reveal that an order was made that the independent children’s lawyer remain undischarged for a period of 12 months and for drug tests to be undertaken by each of the mother and father, with results forwarded to the independent children lawyer. 

11. It is plain, then, that the order for supervision, pursuant to section 65L, was very much intended to operate in the manner in which the section itself intends.  The section, in terms, refers to the making of an additional order under section 65L, “If the court makes a parenting order” and, in its second sub-paragraph, the section refers specifically to a family consultant giving to parties to the proceedings “such assistance as is reasonably requested by that party in relation to compliance with and the carrying out of the parenting order”.

12. Plainly, then, orders placing the child into the care of the grandparents were intended to be final orders, as were the orders in respect of time that each of the father and mother ought spend with him. 

13. In those circumstances, then, the application by the mother calls into operation “the rule in Rice & Asplund”. That rule has been recently examined by decision of the Full Court in SPS & PLS (2008) FLC 93-363 and Miller & Harrington (2008) FamCAFC 150.

14. The latter decision refers to the former decision by Warnick J and, in particular, two passages of his Honour’s judgment in SPS as follows:

    69.      ...in reality, the facts that relate to the best interests of children per se and to the determination of such questions is whether there has been a change of circumstances of sufficient magnitude to justify a fresh consideration of parenting arrangements likely to be identical, or at least intertwined, and to the extent that the facts are otherwise, they may well not be susceptible to 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.  The nature of the hearing that follows, if the Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practicable choice.

    …

    81.   Thus, in my view, when the threshold question described in Rice & 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 the 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, about the interests of the child in not being subjected to further litigation is more powerfully in the child’s welfare than to allow the application to continue.

15. The decision of the Full Court in Miller & Harrington made it clear that it is incumbent upon trial judges to ascertain with precision the nature of the proceedings being conducted when the rule might apply.  In this particular case, I sought to obtain from each of the solicitor for the mother and the paternal grandparents, who represent themselves, whether each and both of them sought that I determine that issue - that is, the application of the rule - as a preliminary or threshold matter.  Each indicted to me that they did so. 

16. That being the case, though, it needs to be borne in mind that the Act nevertheless applies in all the respects to the application, even when it is being determined in the manner just described. As the Full Court said in Miller:

    73.   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 section 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. 

17. The Full Court there went on to cite a number of the more important of the provisions contained in Division 12A of the Act, including making reference to section 69ZM which sets out the “Principles for conducting child-related proceedings”. It is important to note, in that respect, that the first principle mandatorily imposed upon the court 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.

18. It can be seen, then, that the reference by Warnick J in SPS to a decision being ultimately about whether the interests of the child not being subjected to further litigation is more powerfully in the child’s welfare than to allow the application to continue finds reflection in one of the statutory principles which the court must apply in the conduct of child related proceedings. 

19. In this case, the solicitor for the mother contended in argument that a number of significant changes have occurred, sufficient to justify this court embarking afresh on an application by the mother for the making of the parenting orders which she seeks. 

20. It was contended that a number of the “issues in the mother’s personal life” had been addressed.  In particular, she had undertaken and completed a Kinnections course and was part way through completion of the PPP parenting course.  It was said, in respect of the mother’s drug addiction, that she had made further progress in that respect and was no longer on the Subutex program and was no longer taking antidepressants.  She was looking for employment and had changed her circle of friends such that she no longer mixed with any people who were associated with drugs or what might be described as “the drug culture”. 

21. Pursuant to the court’s order, the section 65L process envisaged was unfortunately attenuated by illness within the child dispute services and the retirement of the particular family consultant who had engaged with this family in the lead up to the earlier hearing. 

22. Notwithstanding that, the family consultant, Mr C, prepared a report annexed to an affidavit filed on 15 December 2009.   Ultimately, Mr C recommends as follows:

    Short of there being the reinstitution of a further section 65L period, which I am not in favour of, as it will serve to prolong the finalisation of this matter, I find that on balance, and given the uncertainty surrounding [the mother] and [the father’s] circumstances, I can only support the continuation of the current orders.

23. In the body of the report, Mr C refers to many of the matters referred to in submission by the mother.  He also addresses two other matters, which, plainly enough, are changes in the circumstances that existed as at the date of trial. 

24. First, he refers to a matter which the mother also refers to in her affidavit material:  L has a step brother, T, who is in the mother’s predominant care and with whom he seeks to have, and should have, a relationship.  Secondly, the solicitor for the mother refers to a matter, also raised by Mr C in that report:  since the trial proceedings, the paternal grandparents have become foster carers for two young children under the auspices of state legislation governing that care. 

25. This, too, is plainly a change in the circumstances that existed at the date of the trial.  In particular, that foster care raises two new relationships for the child in his day-to-day life.  The report of Mr C refers to L’s kindergarten teacher saying that he “dotes on” those two children, but, whilst acknowledging this, Mr C nevertheless raises various issues relating to the relationship between L and those two young children, particularly when compared to the potential for a relationship between L and his blood brother, T. 

26. It is to be expected that some changes will occur between the date of trial and a later consideration of the same family constellations. The issue is not whether changes have occurred but rather whether those changes are of sufficient magnitude, by reference to the matters which the court must consider, so as to (to borrow Warnick J’s words) justify subjecting L to further litigation, and whether that is more powerfully in his best interests than to allow the application to continue. 

27. In assessing whether there have been changes sufficient to justify further instability in L’s life, it is necessary not only to consider the changes and the magnitude of the changes in isolation, but to consider them by reference to the findings which underpinned the original decision made some 17 months ago.

28. That decision was based upon a consideration of the Objects, Principles, and Considerations enshrined in the Act, and any new proceedings permitted to continue will also be based on those same legislative Objects, Principles, and Considerations.

29. Significant importance was attached, on behalf of the mother, to the continued efforts that she makes in respect of her drug addiction and, in particular, to the fact that she is now no longer taking Subutex and, associated with that, is no longer taking antidepressants.  It is important to note, in that respect, what was said in the original reasons for judgment about that very issue:

    131.     The evidence of Dr M, in particular, flags significant caution about optimism for either of the parents and Mr V [a reference to the mother’s then partner] remaining drug free in the long term.  The doctor indicated in her evidence that it was very encouraging in the father’s case that he had been drug free for so long and had taken steps to address his previous behaviours, but, nevertheless, caution was required.  As Mr F said [at 79 of his report dated 18 September 2008], “Heroin addiction is a long-term relapsing/remitting condition.”

    132.     The evidence before me does not support a finding that the children are currently at an unacceptable risk of not having their intellectual, emotional, and physical needs met by reason of either parents or Mr V’s drug addiction.  The evidence before indicates, and I find, that each of those conditions is well controlled, and each of those  parties has, to their great credit, taken steps to address the underlying conditions.

30. Thus, whilst,  quite  appropriately, a great deal of significance is attached to the mother’s continued commendable efforts to beat her drug addiction, it is plain from the quote just referred to that her continuing recovery from that condition was central to the orders that were made at the trial.  There was a specific finding made on the previous occasion that the children (a reference to T and L) were not at an unacceptable risk of having their intellectual, emotional, and physical needs met by reason of that drug addiction, and a specific finding was made in those reasons that, relevantly, the mother’s drug addiction was “well controlled” and that she was, to her great credit, taking steps to address that condition. 

31. Accordingly, I am not persuaded that there is any material change shown in respect of the issue of the mother addressing her drug addiction, although I repeat that it seems to me that she deserves great credit for the continued progress that she is making in that respect. 

32. Similarly, her attendance at Kinnections and her partial completion of the PPP parenting course are to her credit.  However, reference to the findings made at the trial, as will be indicated in a moment, readily make clear that the issue, and the ultimate finding in that respect, was significantly more central to the decision than what that submission about change might otherwise indicate.

33. In the original reasons for judgment, it was said:

    161.     Mr F [the family consultant] indicated clearly that in the long term he considered that there were risks for L if he was in the primary care of either parent.  It will be seen, in the emphasised words, that the concerns about, relevantly, the mother’s capacity to care, among other things, was a long-term concern. 

    207.     Such disadvantages for L as exist in removing him from his erstwhile primary attachment figure [the mother] must, in my view, be balanced against the quality of the care comprising that erstwhile attachment and any advantages in L’s primary care being shifted from the mother.

    208     As to the former, it will be obvious from my earlier reasons that I consider that the quality of care provided by the mother and [her then partner] Mr V falls below a standard that might be described as being a “good enough parent”.  [emphasis in original]

34. The quoted phrase is a reference to that expression being used within the evidence of both Mr F and Dr M (the reporting psychiatrist) during the course of that hearing. 

35. There is some doubt expressed about whether Mr V has, in fact, ended his domestic relationship with the mother.  That doubt is raised by the grandparents and is referred to, together with possible foundations for it, by Mr C in his report.  Consistent with approaching this matter as a preliminary or threshold question, it seems to me that I should, in placing the mother’s case at its highest, accept that for the purposes of this application and the application of the relevant principles that the relationship is at an end.

36. It is important to note, however, that, as the mother herself deposes, while Mr V may no longer maintain a domestic relationship with her, the post-trial circumstances are attended by a refusal by that man to return the child, T, to the mother after he had been spending time with him, which necessitated an application for a recovery order being made on the mother’s part. 

37. The mother says in her affidavit that since the recovery, an interim order was made by court, they have “both complied with the order,” and that “the arrangement has worked very well,” such that on 24 February they “entered into final consent orders with respect to [T].”

38. Whilst that, too, might be seen as commendable, it is nevertheless troubling to me that that the post-trial circumstances have included that important matter of instability, when the issue of stability was flagged by me, during the course of the trial reasons, as being fundamental to the decision made in that case.  

1. The reasons for making reference to the risk and parental capacity in the trial reasons, as just referred to, can be seen to emanate from what I described in those reasons as the “tragic and significantly compromised pasts of each of the parents,” and relevantly the mother. I recorded there the (uncontroversial) evidence that the mother’s parents separated when she was a baby and that subsequently, her mother had a partner for about 8 years who was abusive to both her mother and her.  The mother in these proceedings was raped by a boyfriend at 14.  Another former boyfriend committed suicide.  She talked to him by telephone immediately prior to him hanging himself and witnessed his hanging body.  She herself attempted suicide many years ago.

2. It is hardly surprising that, when those matters are taken into account, the psychiatric evidence before the court at the trial indicated that the mother suffered from significant psychological or psychiatric issues reflected in evidence at the trial, in particular from the family consultant, Mr F, who was recorded in the reasons as saying:

   106.     Mr F, in each of his reports, but in particular his most recent report, dated 18 September 2008, flags, “the capacity of the parents and Mr V to meet the needs of a young child, with particular reference to their histories of substance misuse and the social behavioural and environmental issues that may arise, to be of significant issue in the determination of L’s best interests.”  I agree.

3. In those reasons, it was also said:

   15.      Independent psychiatric evidence before the court from Dr M, not challenged in this respect, suggest that the father suffered from a significant conduct disorder as a child, and Dr M considered that a current likely diagnosis was antisocial personality disorder. 

   16.      The mother is diagnosed by Dr M as having “post-traumatic stress disorder with borderline personality traits.”  Mr V was noted to have had a very dysfunctional childhood, to have a history of substance abuse psychosis (although not psychotic at the time of assessment), and that he currently “exhibits an antisocial personality disorder.” 

4. The circumstances of each of the parent’s psychological functioning, together with their interrelationship and the impact that that had had on their capacity to parent and the responsibilities of parenthood emanating, in turn, from their very tragic and compromised upbringings, were, plainly enough, important matters in the original reasons.  It will also be appreciated from those trial reasons that a major concern, in arriving at the orders which were made, is that they represented, for L, a change, and a likely significant change, to the arrangements that had existed erstwhile for his care.  

5. It is to be noted that any change to the arrangements now, some 17 months later, would also represent a very significant change for him, and that is all the more so in circumstances where, as I have indicated, maintaining for him stability of care, continuity of care, and stability of relationships to be an extremely important matter in his best interests. 

6. It is obvious that, in this case, as in virtually every case, some changes have occurred in the circumstances that existed at the time when the original proceedings were heard. Of those that have been put forward as being significant in this case, I do not consider that the mother’s attention to her drug condition or issues in her personal life - notwithstanding how commendable each of those matters might be - represent a material change in the sense in which that expression is used in the context of the so-called “rule in Rice & Asplund”.  The same applies to the fact that the mother has been looking for employment, has changed her friends and the like. 

7. Similar considerations apply to the important consideration of the sibling relationship. It is plainly important that L have an ongoing meaningful relationship with his brother, T.  That, though, was a matter clearly considered by me, among the myriad of other Considerations mandated by the Act, at the time when the original decision was made.  It is no less important now, but, equally, I can’t see that any changes in that relationship mark a material change in circumstances from those which existed at the time the original orders were made. 

8. Of all of the matters raised, it seems to me that the most substantial, and potentially significant, is the grandparents taking on the responsibility as foster carers for two young children and the implication that may have for L’s relationship with the grandparents and with those two young children.

9. It seems to me that this is a change that can be described as material. But, in light of all the circumstances and, in particular, all of the findings made at the final hearing relating to the mandatory Objects Principles and Considerations, it is not a change that can be described as so material as to warrant L being put through the stress and lack of stability inherent in further litigation. 

10. I am not satisfied that there has been a material change in circumstances within the meaning of the principles which guide me. I accordingly dismiss the mother’s application. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  2 June 2010