Chamberlin and Fallow

[2020] FamCA 555

FAMILY COURT OF AUSTRALIA

CHAMBERLIN & FALLOW [2020] FamCA 555

FAMILY LAW – CHILDREN – The principle in Rice & Asplund (1979) FLC 90-725 – Where final Orders were made by consent – Where there has been no change in circumstance sufficient to warrant a reopening of the parenting proceedings – Application dismissed.

Family Law Act 1975 (Cth)

Rice and Asplund (1979) FLC 90-725

APPLICANT: Ms Chamberlin

RESPONDENT: Mr Fallow

FILE NUMBER: SYC 7017 of 2019

DATE DELIVERED: 9 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 6 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Eldershaw

SOLICITOR FOR THE APPLICANT: Heard McEwan Legal

COUNSEL FOR THE RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. The Initiating Application filed by the mother, Ms Chamberlin, on 18 October 2019 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chamberlin & Fallow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7017 of 2019

Ms Chamberlin

Applicant

And

Mr Fallow

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Ms Chamberlin (“the mother”) and Mr Fallow (“the father”) are the parents of X, who was born in 2013 and is presently seven years of age.  On 11 May 2015 the parties consented to final parenting orders which provided for a gradual increase in time with the father such that the child commenced to live with each parent in a week-about arrangement in January 2019.

2. On 18 October 2019, the mother filed an Initiating Application.  She sought to discharge certain orders made by consent on 11 May 2015 and to reduce the child's time with the father to five nights per fortnight.  She also sought orders to the effect that each party have first option to care for the child, in the event that the other is unable to do so personally for twelve or more hours.  The mother's Initiating Application sought no variation to the orders for the child to spend time with the father during school holidays.

3. By a Response filed on 31 January 2020, the father sought a dismissal of the mother's application, on the basis of the principles enunciated in Rice and Asplund (1979) FLC 90-725 (“Rice & Asplund”).  The Full Court there said, inter alia:

   The court should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for ... change is an ever-present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant that ... there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.

4. The father contended that there has been no change in circumstances sufficient to warrant a reopening of the parenting proceedings.  The Rice and Asplund issue was listed for hearing as a discrete matter before me on 6 May 2020.

Background

1. The mother and the father, who are aged 40 and 38 respectively, met in July 2009 and began to live together in late 2009/early 2010.  They married in Country B in 2010 and separated on 19 March 2015.  The marriage was the first for the father and the second for the mother.

2. The father began a relationship with his current partner, Ms C, in January 2017.  They began to live together in May 2018 and became engaged on 25 January 2020.

3. The mother has re-partnered with Mr D and they have a daughter, Y, who was born in 2019.  The notes of the mother's psychologist, Ms G, (Exhibit 1) indicate that this relationship commenced in 2016.

4. The child X was aged almost two years when the parties entered into the consent orders of 11 May 2015.  From that date until his third birthday the child spend four nights and two day periods, each of five hours per fortnight, with the father.  He also spent four holiday periods of four consecutive nights with the father during this time.

5. From the child's third birthday, he spent six nights and one day period per fortnight with the father.  Holiday time with the father increased to four periods each of five consecutive nights at this time.

6. Since January 2019 the child has lived with each parent in a week-about arrangement, with changeovers on Monday afternoons at his school.  From that point, each of the parties has been at liberty to take the child for a fourteen-day holiday in December/January upon 28 days' notice to the other parent.

7. The mother deposed that "Prior to Term 1 of 2019, X was generally a very happy, confident and self-sufficient child".  Inferentially, therefore, the mother must concede that the arrangement of six nights per fortnight in the care of the father was beneficial for the child.  The mother now complains that the child's behaviour has "changed" for the worse, such that his best interests require a reduction to five nights per fortnight with the father.

8. The mother contends also that a poor co-parenting relationship and problematic communication between the parties necessitates a reduction in the child's time with the father.  She now complains that the father will not allow her unlimited contact with the child, while in his care, and that he has blocked all but limited email communication between the parties.

9. The father contended, in essence, that he observes none of the behavioural difficulties which the mother alleges that the child displays while in her care.  The father maintained that the notes of the mother's psychologist demonstrate that she has a lengthy history of mental health symptoms and that there may be problems in her current relationship.  The father maintained that difficulties within the mother's household provide no valid basis for depriving the child of the benefit of alternate weeks in his care.

Consideration

1. Counsel for the mother conceded that she bears the onus of establishing a change in circumstances sufficient to warrant a re-litigation of parenting issues.  On behalf of the mother, it was submitted that there are three bases for re-litigation as follows:

   1.communication between the parties has deteriorated since the orders of 11 May 2015

   2.the child does not cope with the current arrangements

   3.the father has a ‘poor attitude’ to the mother.

2. It seems to me that the contents of the file of the mother's psychologist provide an instructive context to her complaints in relation to the child's alleged behaviour and the problematic interaction between the parties.  These notes record that the mother has a long history of mental health problems and indicate that she may be troubled by difficulties in her current relationship.

3. It appears that, in December 2013, the mother was referred to Ms G and a psychiatrist, Dr F, by her general practitioner.  In a report dated 13 December 2013 to the general practitioner, Ms G stated inter alia as follows:

   My impression was that she was struggling to cope with the adjustment to motherhood, the increased demands on her and lacked confidence in herself.  She reported feeling stressed and anxious, particularly about caring for her baby, experiencing panic attacks and expressed beliefs of being a failure as a mother.  She said that her partner has not been supportive, either emotionally or practically, nor has her own family.

4. Ms G reported also in December 2013:

   On the [Depression, Anxiety & Stress scale] Ms Chamberlin scored in the severe range for stress, the extremely severe range for anxiety and a moderate clinical range for depression.  On the [Edinburgh Postnatal Depression scale] Ms Chamberlin scored in the high clinical range and of concern is that she indicated regular thoughts of self-harm.

   and:

   The symptoms Ms Chamberlin reported experiencing are consistent with Post-natal Anxiety and Depression.  Ms Chamberlin said she is not coping, she said she has seen you recently and two days ago commenced Valdoxan antidepressant medication, however it is too soon for this to have any therapeutic effect.  I am very concerned about her mental state and recommend she see a Perinatal psychiatrist, Dr F as soon as possible ...

5. In a report dated 20 December 2013 Dr F stated inter alia as follows:

   She described a history of significant childhood sexual abuse and some post-traumatic stress symptoms over the years.  She has had increasing problems with depression over the last few years and now describes depression and worsening of PTSD symptoms [since] the birth of her baby.

1. The report of Dr F contained these recommendations:

   We spoke about some strategies with presence, mindfulness and meditation and also to try to help her with the re-experiencing phenomena and I will discuss this with her further at the next appointment.  We also spoke of her problems with her lack of role models for mothering related to her own family and I will work more with her on this once we can get her symptoms to improve somewhat.  I will also be able to do some individual Circle of Security work with her to assist her with parenting and attachment issues related to the baby.

2. The file of Ms G contained a Discharge Summary from M Hospital dated 14 May 2014.  Inter alia, this summary read as follows:

   [Ms Chamberlin] was referred by her private psychiatrist [Dr F], with concerns regarding worsening of [Ms Chamberlin's] mood and inability to cope with the responsibilities of being a mother.  [Ms Chamberlin] had trouble sleeping, re-experiencing trauma, flashbacks and passive suicidal ideation for about 5 weeks prior to admission.  She had very limited improvement on a trial of anti-depressants ...  [Ms Chamberlin] had limited response to Valdoxan and found Seroquel helpful with sleep.  [Ms Chamberlin] was very reluctant to try another anti-depressant and had increased suicidal ideation.  Her psychiatrist suggested inpatient admission and a trial of Effexor.

3. This Discharge Summary concluded as follows:

   Summary: 33 year old woman who presented with postpartum depression in context of increased level of psychosocial stressors, complicated relationship dynamics and her personality vulnerabilities.  She was very difficult to engage in a therapeutic alliance.  She would benefit from long term psychological interventions...

4. In a letter to the mother's general practitioner dated 24 February 2016 Ms G wrote inter alia:

   [X] is now 2 ½ years.  [Ms Chamberlin] and [Mr Fallow] have separated.  [Ms Chamberlin] has identified some dysfunctional behaviours, particularly with regards to choosing the wrong partners.  She has problems with emotional regulation, ongoing anxiety about the future and would like to work on changing some unhelpful patterns of behaviour ...

5. On 15 May 2018 Ms G reported as follows, inter alia, to the mother's general practitioner:

   The problems [Ms Chamberlin] experiences are directly related to childhood issues, she is highly self-critical with low self-worth and is extremely insecure in her relationships.  As a consequence, [Ms Chamberlin] is in a state of high anxiety much of the time.  As noted above, these are longstanding problems and realistically will need longer term therapy ...

6. In relation to a session on 1 May 2018 Ms G noted:

   Been in [relationship] 2yrs  – not living together – going well – [Mr D] 39 never married. 

   …

   have anxiety & distrust re: being cheated on… Checking his phone/computer, questioning where he is, getting out of control.

7. On 8 May 2018 Ms G noted:

   [Mr D] away [H Town] for time out – to think about things – he thinks she is hyper suspicious and oversensitive/overreaction.

8. On 29 May 2018 the notes of Ms G read, inter alia,

   going o/s 15^th June – 2 ½ weeks. 

   Very anxious b/c will miss [X's] birthday

   Ms G noted also

   own childhood insecure/abandoned feelings and t/fer to [X], discussed at length + strategies to address this.

   In this session the mother referred again to "fear that [Mr D] will have affair".

9. In a session in May 2018 Ms G noted "much anx re X → discussed strategies both can do whilst away".  The notes for June 2018 also referred to "anxious re [X]" with reference to the upcoming overseas trip.  The notes of July 2018 stated that the mother "checked [Mr D's] phone several times [whilst away] (didn't find anything)".

10. The notes for 5 March 2019 recorded "son started school ... 50-50 care ... X not coping well" and "collecting the evidence and will go through legal system".  Ms G referred to "anxiety when X not around".

11. On 20 August 2019 Ms G noted "her lawyers have suggested 9/5 – she want 10/4".  It appears that the mother told Ms G that the father "has formally blocked her from contacting X at all when with him".

12. In his affidavit the father explained why he blocked the mother's telephone number.  He deposed that, between the mother's overseas trip in mid-2018 and January 2019, she contacted him on as many as 20 occasions per day via text message and email.  The father maintained that he felt "harassed" by this level of communication.

13. The father deposed that the mother attended X's school each day during the weeks when the child was in his care.  He gave uncontradicted evidence that "This created confusion for X and at times he became distressed as Ms Chamberlin would be there holding out ‘treats’ to entice him or she would cuddle him and caress his hair so that he would be all sooky."

14. The father requested that the mother cease attending the school during the child's time in his care, by solicitor's letter dated 10 April 2019 (Annexure D to his affidavit).  The father gave uncontradicted evidence that she persisted with this behaviour until approximately August 2019.

15. The father deposed that the mother shouted verbal abuse at him during changeovers and held onto the child, thus "making it difficult for X to transition to me."  The father maintained that this source of stress for the child has reduced since most changeovers began to take place at his school.

16. The father deposed that between approximately June/July 2018 and January 2019, the mother arrived uninvited at his apartment building and brought lollies to the child.  He maintained that she also came uninvited to his home when the child was not in his care.

17. The father deposed that the parties have never communicated well with each other, both before and since their separation.  The father maintained that their communication was problematic at the time of the consent orders.  I was taken to no evidence of the mother that there has been any significant deterioration since 11 May 2015.

18. The mother deposed that "Since starting the week-about arrangement, [the father] is often unavailable to care for X and makes alternative care arrangements, rather than affording me the opportunity to care for him."  The mother complained that the father has arranged for care by his partner, his parents, babysitters and a before-school facility.  The father gave uncontradicted evidence that the child has friends at before-school care and that he enjoys this time.  The father deposed that the child enjoys spending time with his paternal grandparents on their rural property during long weekends and school holidays.  I have no reason to doubt that the child enjoys and benefits from both of these activities.

19. It would appear that certain of the mother's complaints in relation to the father's care arrangements were spurious and made in an attempt to advance her cause in these proceedings.  The mother deposed that the father's partner took the child to K Town for a weekend in July 2019 and that he required medication when a dog licked his face.  It seemed to me that the clear implication from the mother's affidavit was the father was not present on that weekend.  The father deposed, however, that he was in K Town with his partner on a visit to her mother’s house.

20. The mother complained that X "again was placed in his parents' care in J Town" while the father spent the July 2019 school holidays in Country L.  The father deposed that the child spent "a few days" with his paternal grandparents at their farm and that he was also present for part of this time.  The mother adduced no evidence of any difficulties in the child's relationship with his paternal grandparents, nor did she appear to dispute the father's contention that he enjoys opportunities to spend time on a working rural property.

21. The mother complained that the father arranged for the child to stay with his uncle, aunt and cousins at the paternal family property during the October 2019 school holidays.  She chose to involve the police, but, unsurprisingly, they elected to take no action in response to her complaint.

22. The mother complained also that the father would not allow her to FaceTime the child on the day when she gave birth to her daughter Y.  In an email to the mother dated 11 August 2019 the father stated his reason as follows:

    I didn't think it was appropriate that [X] learn he has a sister when he is with us, he would certainly feel left out and confused that he couldn't be there and has to wait to meet her.  It's best for [X] that you tell him in person.

23. The father described the mother's conduct toward him at changeovers as follows:

    At changeover [Ms Chamberlin] would communicate with me in a rude and aggressive manner.  She would say: “you are so stupid”: or “you are a bad father”…. and other words to that effect.  It was not uncommon for her to walk outside with [X] on her hip and start pointing at me and just yelling at me about things.  She would say in a loud and angry voice: “you are pathetic” and “I am going to change these Orders ... I will take you back to Court” and other words to that effect.  She would try to start fights.  I just stopped talking to her.  To engage with her would just encourage her to yell more at me.  Again, this behaviour was consistent with her conduct throughout our marriage and at the time the Consent Orders were made.

24. The father described in his affidavit a volatile and unstable relationship between the parties prior to their separation.  He deposed to numerous incidents of verbal abuse and shouting by the mother, without provocation on his part.  The father gave uncontradicted evidence that he requested that the mother seek professional help to address her mental health during the marriage.

Conclusion

1. The mental health problems of the mother were known to both parties at the time of the consent orders.  The father deposed that he "was very concerned about leaving X with Ms Chamberlin given her mental health issues" at the time of the parties' separation.  He deposed further that he "was confident that provided X had respite and a chance to spend extended periods of time with me as per the terms of the Consent Orders, that he would be fine."  Accordingly, the mental health issues of the mother do not constitute a change of circumstances since May 2015.

2. It appeared to be common ground that communication between the parties is problematic but I have no reason to doubt the evidence of the father that they have always had a volatile relationship.  In my view, the father took reasonable steps to limit the mother's excessive communications with him and she must accept most of the blame for the current situation.

3. I do not accept that the mother's complaints about the father's arrangements for care of the child have validity.  In particular, I can see no basis for her alleged concerns about the child spending time with his paternal grandparents on a working rural property.  In my view, it is most likely that he enjoys and benefits from this experience.  It may have been unwise for the father to arrange for the child to spend time with his uncle, aunt and cousins without notice to the mother.  On the other hand, her involvement of police officers would seem to be an unhelpful and unnecessary overreaction.

1. Significantly, the mother adduced no independent evidence of the alleged behavioural difficulties of the child while he is in her care.  It might reasonably be expected that her live-in partner has witnessed some of these behaviours but he gave no evidence in support of her case.

2. The notes of the mother's psychologist provide a strong indication that a psychological difficulty inhibits her capacity to allow the child to share his time between his parents.  The father's evidence as to the mother's behaviour, which has at times disrupted the child's enjoyment of time with him, provides a similar indication.  I accept that the child is settled and comfortable in the care of the father.

3. Overall, I am satisfied and I find that the mother failed to discharge her onus to establish a change in circumstances sufficient to warrant a re-litigation of parenting issues.  I am conscious that a re-litigation of parenting issues would be likely to cause stress to the child.  He would be interviewed by a Family Consultant and would almost certainly become aware that there is a prospect of a change in his living arrangements.  For these reasons, I will dismiss the Initiating Application filed by the mother on 18 October 2019.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 9 July 2020.

Associate: 

Date:  9 July 2020