Carriel & Lendrum
[2013] FCCA 284
•8 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARRIEL & LENDRUM | [2013] FCCA 284 |
| Catchwords: FAMILY LAW – Children – parenting orders – application to vary final parenting orders – where respondent seeks dismissal of application – “Rice v Asplund” principle – whether orders made on 30 November 2010 contemplated a reconsideration of parenting issues after the end of 2012. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC |
| Cases cited: L & L (1992) FLC 92-274 Lendrum & Carriel [2010] FMCAfam 1322 |
| Applicant: | MS CARRIEL |
| Respondent: | MR LENDRUM |
| File Number: | SYC 3851 of 2007 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 2 May 2013 |
| Date of Last Submission: | 2 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kearney SC |
| Solicitors for the Applicant: | Swaab Attorneys |
| Counsel for the Respondent: | Mr Schonell SC |
| Solicitors for the Respondent: | Milne Berry Berger Freedman |
ORDERS
The Application filed on 9 November 2012 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Carriel & Lendrum is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
SYC 3851 of 2007
| MS CARRIEL |
Applicant
And
| MR LENDRUM |
Respondent
REASONS FOR JUDGMENT
Application
The substantive Application before the Court is an application by the mother to vary final parenting Orders made after a final hearing on 30 November 2010. The Orders relate to the parties’ daughter, [X], who was born [in] 2005 and is now seven years old.
The father, who is the Respondent, has filed a Response seeking that the Application should be dismissed in accordance with the principles of the decision of Rice v Asplund[1].
[1] (1979) FLC 90-725
Background
On 30 November 2010 Federal Magistrate Sexton[2] handed down judgment in this matter, after three days of hearing from 14 to 16 September 2010.[3] The orders made provide that (in summary):
[2] As her Honour then was
[3] Lendrum & Carriel [2010] FMCAfam 1322
a)The child [X] is to live with the father;
b)The child is to spend time with the mother:
i)on alternate weekends during school terms, including the Mother’s Day weekend; and
ii)for half of each school holiday period; and
iii)from Christmas Eve until Boxing Day in even numbered years.
c)The child’s time with the mother was required to be supervised, until the end of the 2012 calendar year at the earliest, by one of a number of people;
d)Until the child is 10 years of age, she is to be made available to speak to her mother on two occasions each week during school terms and is to be made available to speak with the father and his current wife [name omitted] on two occasions each week when she is in the mother’s care during the school holidays;
e)Once the child attains the age of 10 years she is to have liberal access to a telephone;
f)The mother is required to submit to urinalysis and hair follicle testing to determine the presence of illicit drugs in her system;
g)The party in whose care the child is at the time will have sole responsibility for making decisions about the day to day welfare and development of the child;
h)The parties are to have equal shared parental responsibility for the child except that the father is to make decisions about the child’s schooling;
i)The parties are to keep each other informed of their addresses, telephone numbers, the child’s schooling and extra curricular activities, medical emergencies and any party to which the child is invited;
j)The mother is restrained from:
i)Using any illicit or illegal substance;
ii)Consuming alcohol when [X] is in her care or for 24 hours beforehand;
iii)Smoking in the child’s presence;
iv)Taking [X] to a Narcotics Anonymous meeting;
v)Allowing her partner Mr D from coming into contact with the child; or
vi)Removing the child from the Sydney Metropolitan Area overnight without the father’s written consent.
The Court noted that the parties were at liberty to vary the orders by written agreement.
Sexton FM also noted that if further litigation were to be commenced between the parties concerning parenting arrangements before the end of 2012 the matter should, if practicable, be listed before herself. As it turned other, the mother’s application to vary the Orders filed on 9 November 2012 was returnable before me on 17 December, rather than her Honour, which was due solely to administrative reasons. Neither party sought that the application should be transferred.
The mother’s Application was returnable on 17 December 2012. On that date, the parties negotiated some interim Consent Orders, discharging Orders 11 to 15 of the primary Orders, which were the Orders that provided for the mother’s time with the child to be supervised.
Other Orders were varied relating to:
a)The mother taking the child away from the Sydney Metropolitan Area overnight; and
b)Either party wishing to take the child overseas for a holiday.
There were some additional orders providing for the father to take the child to the United States with consequent adjustment of the mother’s time with the child.
The father’s application for dismissal of the mother’s substantive Application was listed for hearing on 2 May 2013.
The Mother’s Application
The mother seeks interim and final orders in her Application. The final orders sought differ from the existing Orders in a number of areas, including:
a)Parental responsibility relating to the child’s education;
b)Additional time spent with the mother during the school term and at Easter;
c)Arrangements for changeover;
d)Telephone communication;
e)Information sharing;
f)Extra-curricular activities;
g)Travel outside Sydney or overseas; and
h)Drug testing of the mother.
The final Orders sought by the father in his Response are that the mother’s Application be dismissed with costs on an indemnity basis.
Documents
The father relied on the following:
a)The reasons for judgment delivered 30 November 2010;
b)His Response filed on 14 December 2012; and
c)His affidavit filed on 14 December 2012.
The mother relied upon the following affidavits:
a)Her affidavit of 9 November 2012;
b)Her affidavit of 23 April 2012;
c)The affidavit of Ms K of 15 November 2012;
d)The affidavit of Ms A of 19 November 2012;
e)The affidavit of Mr Y of 20 November 2012;
f)The affidavit of Ms D of 23 November 2012;
g)The affidavit of Mr C of 23 November 2012;
h)The affidavit of Ms C of 23 November 2012;
i)The affidavit of Ms M of 26 November 2012;
j)The affidavit of Ms S of 29 November 2012;
k)The affidavit of Ms L of 5 December 2012;
l)The affidavit of Dr J of 16 April 2013; and
m)The affidavit of Ms G of 1 May 2013.
In his affidavit of 14 December 2012, the father said that he consented to the discharge of the Orders requiring the need for the mother’s time with the child to be supervised. He also referred to a proposed trip to the United States with the child. This trip has now taken place.
The father does not rely on any other affidavit.
The mother, in her affidavit of 9 November 2012, refers to her history of drug addiction and her later addiction to alcohol. Although she had a relapse on heroin in January 2009, she recommenced treatment on Buprenorphine in June 2009 and stopped taking Buprenorphine in June 2010. She deposed at paragraph 10 of her affidavit:
I have not consumed any illegal drugs since June 2009. I have not consumed any alcohol since January 2009.[4]
[4] Affidavit of Ms Carriel 9.11.2012 at paragraph [10]
The mother stated that she had undertaken 158 drug tests and has provided the results to the father on every occasion as soon as they have become available. She goes on to depose:
None of the tests I have taken have shown positive results for illicit or illegal substance use.[5]
[5] Ibid at [14]
The mother’s affidavit went on to describe her activities with the child and set out why she found it was difficult and inconvenient for her time with the child to continue to be supervised.
The mother also set out the steps she was taking to recover from her addiction, including:
a)Regularly attending Narcotics Anonymous and Alcoholics Anonymous meetings;
b)Attending on her general medical practitioner regularly;
c)Attending Sydney Clinic, [suburb omitted], once or twice a month; and
d)Attending on her psychiatrist, Dr J, approximately every six months.
The mother’s affidavit describes the range of activities in which the mother has participated with [X] since the consent orders of 17 December, removing the requirement for her time to be supervised.
Under the heading Change in Circumstances since 30 November 2010, the mother summarises the steps she has taken:
7. Since the orders of 30 November 2020 were made, I have complied with all orders in relation to my undertaking extensive drug testing. The results of these tests were produced to the Court for the hearing on 17 December 2013.
8. As set out in my November Affidavit, I am committed to maintaining my sobriety and changes have resulted in my life as a consequence. I have re-established strong relationships with my family including my parents, my sister and brother and my nieces and nephew. [X] also appears to thoroughly enjoy spending quality time with her extended family on a regular basis.
9. As set out further below, I have taken an increasingly active role in [X]’s school. Other parents rely on my assistance in the supervision of their own children.
10. The removal of supervision by consent demonstrates the changes in circumstance that have occurred over the past 2 years and the level of trust the Father now has in my ability to care for [X].[6]
[6] Affidavit of Ms Carriel 23.4.2013 at [7]-[10]
The balance of the affidavit covers those matters in some detail.
The affidavits of Ms K, Mr Y, Ms S and Ms L are all in a similar vein. The deponents are all parents of children who attend the same school as [X] and they know the mother in that way. They all speak highly of the mother’s relationship with the child.
Ms A was engaged as a supervisor for the child when in the care of the mother. She speaks in positive terms of the child’s positive relationship with the mother and her tearfulness and distress when separating from her mother. She also speaks in positive terms of the mother’s focus on [X]’s care and wellbeing and expresses the opinion that supervision of the mother is no longer required.
Mr C, Ms C and Ms M are the child’s maternal grandfather, grandmother and aunt. The grandmother and aunt have regularly supervised the child whilst in the mother’s care. Their affidavits all set out how the mother’s behaviour has improved since she ceased using illicit drugs and how they have observed her positive and loving interaction with [X].
Ms D deposed that she has known the mother for approximately 15 years, when they met at a Narcotics Anonymous meeting. She has been the mother’s sponsor since early 2009. Her role as a sponsor is to help the mother in her recovery from drug addiction. She is in regular contact with the mother.
Ms D expresses a positive opinion of the mother’s progress towards rehabilitation from her addiction to drugs, saying:
8. I have witnessed a transformation in the mother during the time I have sponsored her. I have seen that the mother has been able to confront her issues and be honest and open about her inability to control her drug addiction. I believe the mother now accepts that her addiction is an illness that requires treatment….
9. The mother is proactive in seeking treatment for her addiction. The mother attends regular Narcotics Anonymous and Alcoholics Anonymous meetings. She performs volunteer service positions that require her to be stable in her recovery and committed to take on the role…
10. I am aware that the mother has a solid network of support. She is proactive in contacting people in the fellowship if she needs support during stressful times….[7]
[7] Affidavit of Ms D 23.11.2012 at [8]-[10]
Ms D had this to say about the likelihood of a relapse:
12. I believe that if the mother were to relapse, I would be aware of it because there would be an obvious shift in her behaviour…
14. In my opinion the likelihood of the mother relapsing is drastically les than it has been in the past.[8]
[8] Ibid at [12]&[14]
Dr J is a Consultant Psychiatrist who has been treating the mother since January 2011. Annexed to his affidavit of 16 April 2013 is a report dated the day before in which he sets out her history and his opinions of her presentation at assessments made between 18 January 2011 and 26 March 2013.
Dr J sets out this diagnosis of the mother’s condition:
Ms Carriel has not presented during her period under my care with any symptoms consistent with mental illness or substance disorder.
Prior to June 2009 Ms Carriel had clinical patterns consistent with the diagnosis of Opioid and Alcohol Dependence with Physiological Dependence.[9]
[9] Affidavit of Dr J 16.4.2013 Annexure “C”
Dr J’s prognosis is cautiously optimistic, saying:
Ms Carriel has several positive prognostic indicators. She has shown a good response to therapy and has achieved greater understanding of her vulnerabilities and strengths. She has developed new ways of coping with and tolerating her negative emotions which will significantly reduce the risk of relapse to drug use or other maladaptive behaviour.
Her prognosis is likely to be positive should she continue to adhere to suggested management and abstain from drug use.[10]
[10] Ibid
Dr J recommended continued therapy for opiate related problems. As to further drug screening, significantly, Dr J recommended:
In terms of monitoring I would advocate for a reduction in her frequency of urine drug testing for several reasons:
· She is no longer struggling with drug addiction or within the vulnerable immediate post drug cessation period.
· She has shown psychological improvement, social stability and sustained drug abstinence.
· Her drug monitoring regime is demanding and restrictive in terms of its impact on her lifestyle and subsequent psychosocial growth (for example development of stable work patterns)
I would still advocate for random and supervised urine drug screening and hair analysis at decreasing frequency with the longer term Goal after 1 to 2 years of 2 random drug screens a year.[11]
[11] Ibid
Ms G’s affidavit of 1 May 2013 shows that she is a Registered Nurse specialising in mental health and addiction who holds a Graduate Diploma in Couples Counselling. She works as a therapist at the Sydney Clinic [suburb omitted] and annexes to her affidavit an assessment of the mother’s pattern of attendance and participation in group therapy at the Sydney Clinic.
Ms G’s Assessment, dated 11 April 2013, states that the mother has been consistently attending the outpatient relapse prevention group at The Sydney Clinic since January 2011. The Assessment speaks highly of the mother’s motivation to maintain abstinence and commitment to attend programs at the Clinic as well as NA and AA meetings and states:
If [Ms Carriel] continues with her recovery maintenance plan she will be able to maintain stability and continue the positive progress she has achieved thus far. She appears strongly motivated and intrinsically dedicated to her child.[12]
[12] Affidavit of Ms G 1.5.2013 Annexure “B”
Submissions
Senior Counsel for the father, Mr Schonell, submitted that the decision of 30 November 2010 made orders against a background of the mother’s:
a)long-term drug addiction;
b)alcohol use;
c)dishonesty about the extent of her drug and alcohol use; and
d)her lack of insight into the extent of the abuse and its damaging effect on her daughter for almost the entirety of the child’s life.
The thrust of the submission is that the Court should protect the child from being the subject of further disputation about parenting arrangements.
Mr Schonell noted that her Honour had found that the child was “settled and secure” living with the father and his current wife and that “any change may cause [X] some distress and would require a period of adjustment”.[13] He submitted that a further change in the child’s life brought about by further litigation would continue to cause the child distress and unsettle her at a time when she is experiencing stability and security.
[13] [2010] FMCAfam 1322 at [56]
The father’s concern is that, noting the mother’s history of relapses into addiction, there is no guarantee that the mother will not relapse again, exposing the child to more risk. “The Court must proceed upon the assumption that she will relapse rather than proceed upon the assumption that she will not.”[14]
[14] Case Outline on behalf of the Respondent page 4 at [13]
Further, in her judgment, Sexton FM, when considering the requirement under s.60CC(3)(l) of the Family Law Act 1975 (Cth), (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):
[X] has been the subject of litigation over a long period. Unfortunately, the Court is unable to form a view as to the likelihood of the Mother using illicit substances in the future. I agree with the Father’s counsel that [X] needs certainty and stability in her arrangements over the long term.[15]
[15] [2010] FMCAfam 1322 at [67]
The submission is that her Honour considered in her judgment at [92]-[93] the period of time in which supervision of the mother and the other parenting arrangements should continue, which extend well beyond the time in which the mother considers it in the child’s best interests to impose litigation upon the child’s life once more. There is nothing in the mother’s evidence that suggests that it is in the child’s best interests to continue, rather, it is in the child’s best interests for the litigation to cease.
Senior counsel for the father referred the Court to the principle stated in Rice v Asplund[16] that, where an order has been made in relation to the issue of where child should live, the Court should not lightly entertain an application to reverse that earlier order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal.
[16] (1979) FLC 90-725
As Strauss J held in Freeman and Freeman[17]Once the Court has settled the question of custody, it is usually in the interests of children that the order made by the court is treated as determining the dispute and be given the necessary support:
Stability in the lives of children and also in the lives of adults is an essential pre-requisite to their well-being.[18]
[17] (1987) FLC 91-857
[18] (1987) FLC 91-857 at 76,740-76,741
The Court was referred to the decision of the Full Court of the Family Court in Miller & Harrington[19] as to the way a court should consider the rule in Rice v Asplund in conjunction with the best interests principle and what should be considered in relation to the threshold issue (see SPS and PLS[20]; Collivas & Cassimatis[21]; King & Finneran[22]; L & L[23]; Saad & Saad[24]).
[19] [2008] FamCAFC 150; (2008) 39 Fam LR 654; FLC 93-383; 220 FLR 300
[20] [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363
[21] [2007] FMCAfam 293
[22] [2011] FamCA 344; (2001) FLC 93-079
[23] (1992) FLC 92-274
[24] (1993) FLC 92-332
It is the father’s submission that the evidence on which the mother relies to seek to re-open the proceedings does not meet the test for a significant change of circumstances to warrant the matter being relitigated. Permitting further litigation would lead to uncertainty and destabilisation.
Senior counsel for the mother, Mr Kearney, submitted that the Court should not dismiss the Application, having regard to:
a)the terms and effect of the Orders entered on 30 November 2010;
b)the changes of significance that have occurred since the entry of the orders of 5 March 2008; and
c)a consideration of the evidence sought to be advanced by the mother in the context of the best interests of the child.
Mr Kearney, too, referred the Court to the decisions in Rice v Asplund[25]and SPS and PLS[26], and to the decisions of Faulks DCJ at first instance in Marsden & Winch[27] and of the Full Court of the Family Court on appeal,[28] where the statements of Warnick J in SPS and PLS were cited with approval in each case:
…Though sometimes unstated, the underlying conclusion will or ought to 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.
[25] supra
[26] supra
[27] [2008] FamCA 1029
[28] [2009] FamCAFC 152
Senior Counsel for the mother submitted that, “Put another way, the Father need demonstrate that it is in [X]’s best interests for the proceedings to be dismissed at this time”[29]
[29] Outline of Case Document page 9 at 4
This, it would seem, is what the father is seeking to do in his Response.
Mr Kearney submitted, correctly in my view, that as the father’s application is proceeding “on the papers”, the Court should proceed on the basis that the mother’s case should be considered at its highest.
Importantly, it is submitted that the terms and effect of the Orders entered on 30 November 2010 expressly and explicitly permit and contemplate a reconsideration of the terms of the parenting orders following the end of the 2012 calendar year. Particularly, it is noted that:
a)Orders (11), (19) and (20) each commence with the words “until the end of the 2012 calendar year at the earliest”; and
b)Paragraph (51) provides:
In the event further litigation is commenced between these parties, concerning parenting arrangements, before the end of 2012, the matter should, if practicable, be listed before Federal Magistrate Sexton.
Significantly, it is submitted that the father’s own consent on 17 December 2012 to varying three aspects of the primary Orders, including the “fundamental requirement” of supervision on an ongoing basis, supports the mother’s contention that the Orders of 30 November 2010 contemplated a reconsideration after 1 January 2013.
Mr Kearney submitted that, the requirement of supervision now having been removed, the opportunity exists to reconsider the parenting arrangements that would be in the child’s best interests. This ought not to be summarily denied. The evidence now adduced by the mother provides a basis and an opportunity to reconsider the “balancing exercise” in which the Court engaged in September 2010, between the competing considerations of:
a)the need for [X] to have as much time with her mother as was possible and practicable; and
b)the risk posed to [X] by her mother’s past conduct, which required supervision.
It was further submitted that the evidence now adduced by the mother places the Court in a better position than it was in previously, where it was without the evidence that is now available:
a)about the mother’s health, conduct and prognosis from her treating medical practitioner; and
b)from a volume of people having a daily interaction with the mother and the child, including the maternal grandparents and aunt.
Mr Kearney submitted that there are changes of significance which have occurred since the entry of the Orders of 30 November 2010, being:
a)the mother’s compliance, without issue, with the Orders of 30 November 2010 including as to supervision and drug and alcohol testing;
b)the mother having undergone consistent treatment and therapy in relation to her substance abuse issues;
c)difficulties in relation to the father’s interference on occasion with [X]’s schooling and relationship with her mother;
d)the child’s increasing age and maturity;
e)the child’s expression of views seeking more time and a greater relationship with her mother; and
f)consequent upon the cessation of supervision, the mother’s increased involvement in [X]’s schooling and the opportunity for her to have a greater relationship and involvement with her mother generally.
The determination of the father’s application, it is submitted, is not confined to the above considerations but to the consideration of the child’s best interests. Mr Kearney referred the Court to a number of matters that now arise for consideration under section 60CC of the Family Law Act.[30]
[30] supra
In short, the submission is that the material before the Court demonstrates that there are significant changes in the mother’s circumstances vis-à-vis [X] that warrant a reconsideration of the Orders of 30 November 2010 and a judicial determination as to the child’s best interests, such that the Court could not be satisfied that dismissal of the proceedings at this time is in the child’s best interests.
Conclusions
The rule in Rice v Asplund was the subject of detailed consideration by the Full Court of the Family Court in Miller & Harrington[31], where their Honours considered the recent decisions of Warnick J in SPS & PLS[32] and Wilson FM in Collivas & Cassimatis[33].
[31] supra
[32] supra
[33] supra
In my view, the decision is authority for the Court to proceed on the basis that the mother’s evidence should be considered at its highest[34] and that, as Warnick J said in SPS & PLS at [81], when the threshold question described in Rice v Asplund is determined as a preliminary matter, it remains a determination “on the merits”.
[34] Miller & Harrington (2008) 39 Fam LR 654
Accordingly, the question for consideration must be – assuming the evidence of the mother is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing? (see Miller & Harrington at [105]).
However, the Court needs to consider a preliminary issue raised by Senior Counsel for the mother, which is his contention that the Orders made by Sexton FM on 30 November 2010 contemplate a reconsideration following the end of the 2012 calendar year, drawing support from Orders (11), (19), and (20) and paragraph (51) of her Honour’s judgment.
Order (11) provides:
Until the end of the 2012 calendar year at the earliest[35], [X]’s time with the Mother, whether in school terms, holidays or at any other time, be at all times supervised by:
(a) Either of the Mother’s parents; or
(b) Any other member of the Mother’s biological family; or
(c) Ms H; or
(d) An independent and accredited supervising agency; or
[35] Emphasis added
(e) Any other person agreed by the parties.
Order (19) provides:
Until at least the end of the 2012 calendar year[36], within 24 hours before and after any proposed period that [X] spends time with the Mother, the Mother submit herself to [omitted] Pathology for urine testing, such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the collection, detection and quantitation of drugs of abuse in urine and immediately upon the result being available to the Mother’s general practitioner, the Mother scan a copy of the result to the Father’s email address.
[36] Emphasis added
Order (20) provides:
Until at least the end of the 2012 calendar year, on no more than one occasion in each three calendar months, the Mother shall submit herself for hair follicle testing at [omitted] or any other accredited clinic, with the Mother to provide no less than 3 centimetres of hair for such testing, and the Mother be restrained from taking any steps to interfere with the test result.
Order (51) provides:
In the event further litigation is commenced between these parties, concerning parenting arrangements, before the end of 2012, the matter should, if practicable, be listed before Federal Magistrate Sexton.
Notwithstanding the above orders, it is clear from the Orders made by the Court and from her Honour’s reasons, that it was always her Honour’s intention to make final orders. Whether interim orders or final orders should be made, or whether there should be a review at some time in the relatively near future were considered by her Honour and rejected.
At [67]-[69] of the judgment, under the heading 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, her Honour said:
67. [X] has been the subject of litigation over a long period. Unfortunately, the Court is unable to form a view as to the likelihood of the Mother using illicit substances in the future. I agree with the Father’s counsel that [X] needs certainty and stability in her arrangements over the long term.
68. The Mother’s counsel submits that the Court should make interim orders for a period of 6 months and then review the need for supervision. As I am not persuaded that I will be in any better position in 6 months time, than I am now, to reach a final decision, I find it is in [X]’s best interests for the Court to make orders on a final basis.
69. The onus will remain with the Mother to satisfy the Father that [X] is safe in her care.[37]
[37] [2010] FMCAfam 1322 at [67]-[69]
Clearly, these are final Orders, and there is no support from her Honour’s Reasons for a contention that it was intended that the Orders would be reviewed after the end of 2013.
It should be noted that Order (16) was made with an intention that it should be a longstanding order, as it specifically refers to arrangements to apply:
(a) Until [X] is 10 years of age…
and
(e) When [X] has attained 10 years of age…
As [X] was born [in] 2005, she will obviously not attain the age of 10 years until [omitted] 2015.
The reference in Order (11) for supervision to remain in place “until the end of the 2012 calendar year at the earliest” and the reference in Orders (20) and (21) for types of drug testing to remain in force “until at least the end of the 2012 calendar year” should not be taken to represent a specific endpoint for the operation of the Orders. The very use of the phrases “at the earliest” and “at least” should be seen as a guide to the parties about a time for consideration of the need to vary those specific provisions. As paragraph [69] of the Reasons shows, it was within the Court’s contemplation that, notwithstanding the lack of trust and the poor communication between them, there would be an opportunity at some time in the future for the mother to satisfy the father that [X] is safe in her care. The Court noted at (50) but did not order that:
The parties are at liberty to vary these orders by written agreement between them.
This is no more than a statement of fact. A notation is not an Order.
The statement in paragraph (51) of the Orders, that if further litigation were to be commenced before the end of 2012 the matter should, if practicable, be listed before Sexton FM, is not a direction by the Court, but merely a suggestion as to a convenient way to deal with any future Application. It has no binding force.
Is there a sufficient change of circumstances shown by the mother’s evidence, taken at its highest, to justify embarking on a hearing? This question should, in my view, be considered in the light of the statement by Warnick J in SPS & PLS at [81]:
…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 circumstances shown to justify embarking on a hearing. Though sometime unstated, the underlying conclusion will, or ought to 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 (emphasis added).[38]
[38] [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363
This passage was considered by the Full Court of the Family Court in Miller & Harrington at [79]-[82] and specifically approved by the Full Court in Marsden & Winch[39] at [47].
[39] supra
I have considered the evidence adduced by the mother, noting that it now contains evidence from Dr J and Ms G about the mother’s treatment and evidence from various people, including her own family and parents of children at [X]’s school, who have regular interaction with her. I note that there is now evidence of statements made by [X] about her wish to see her mother more frequently.
There is certainly evidence that the mother has complied with the requirements of supervision and drug testing, including having taken some 158 drug tests. There is evidence that, since the consent orders were made on 17 November 2012 removing the need for supervision, the mother has had the opportunity for a greater and freer interaction with the child. It is also a fact that [X] is more than two years older than she was when the matter was before the Court in September 2010.
The evidence shows a progression by the mother that is to her credit. The concern that I have, however, is that the mother’s application at this stage is more to do with her own perfectly understandable wish to spend more time with her child than with a consideration of the child’s best interests.
It appears to me that the mother’s application to reopen parenting proceedings is premature, even though it is clear that she is not seeking that [X] should reside with her. One of the significant concerns expressed b y Sexton FM in the 2010 proceedings was the risk to the child of a relapse by the mother. The affidavits of Dr J and Ms G each contain a cautious prognosis, conditional upon the mother continuing to undergo the necessary treatment.
Dr J deposes:
Her prognosis is likely to be positive should she continue to adhere to suggested management and abstain from drug use.[40]
[40] Affidavit of Dr J 16.4.2013 Annexure “C”
Ms G’s deposes:
If [Ms Carriel] continues with her recovery maintenance plan she will be able to maintain stability and continue the positive progress she has achieved thus far.[41]
[41] Affidavit of Ms G 1.5.2013 Annexure “B”
In my view, the evidence, taken at its highest, is not sufficient to establish a justification for embarking on a further parenting hearing. The interests of the child in not being subject to further litigation are such that the Application should not be allowed to continue. Further parenting litigation at this stage in the child’s life will not give her the stability and certainty that Sexton FM considered that she clearly needed.
The Family Law Act itself contemplates the need for stability in certainty in a child’s life when it requires the Court to consider, at s.60CC(3)(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.
The Application will be dismissed.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 14 May 2013
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