Chapman and Chapman

[2015] FCCA 3272

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAPMAN & CHAPMAN [2015] FCCA 3272

Catchwords:
FAMILY LAW – Ruling on Rice v Asplund objection – objection upheld.

Legislation:

Family Law Act 1975

Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

Applicant: MR CHAPMAN

Respondent: MS CHAPMAN

File Number: MLC 6201 of 2014

Judgment of: Judge Burchardt

Hearing date: 1 October 2015

Date of Last Submission: 1 October 2015

Delivered at: Melbourne

Delivered on: 17 December 2015

REPRESENTATION

Counsel for the Applicant: Ms Williams

Solicitors for the Applicant: Pearsons Lawyers Pty Ltd

Counsel for the Respondent: Ms Dennis

Solicitors for the Respondent: Go To Court Lawyers

ORDERS

1. The father’s Application filed on 14 April 2015 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6201 of 2014

MR CHAPMAN

Applicant

And

MS CHAPMAN

Respondent

REASONS FOR JUDGMENT

1. On 29 October 2014 I made comprehensive parenting orders by consent of the parties at a time which they were both legally represented and had the assistance of an Independent Children's Lawyer.  On 14 April 2015 the applicant father filed an initiating application seeking to vary those orders.  The wife has taken a Rice & Asplund (1979) FLC 90-725 objection on the basis that there has been no material change of circumstances since the original orders were made and that it is not in the best interests of the children for there to be a further set of legal proceedings.

2. For the reasons that follow, I think the wife’s position is correct, and it follows that the application will be dismissed.

The law in relation to Rice & Asplund

1. It is convenient in this case to start by setting out what the case Rice & Asplund actually stands for.  Without in any way derogating from the terms of that judgment itself, in my respectful view the explanation of the proper application of the doctrine in Rice & Asplund is authoritatively contained in the decision of Warnick J in SPS & PLS (2008) FLC 93-363.

2. I refer to, without setting out of course in full, the entirety of the judgment in that case. 

3. At [48] his Honour set out the following conclusions:

   “In my view, reflection on the rule shows that:

   (i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

   (ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation, the court in Rice & Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.

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

   (iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.

   (v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   (vi) “Shorthand” statements of the rule may contribute to its misapplication.

   (vii) Any application of the rule must now measure the evidence against the principles set out in Pt 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.”

4. At [50] Warnick J quoted from a decision of Evatt CJ in Rice & Asplund as follows:

   “… It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed 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.”

5. His Honour continued at [56]-[59].

   “As seen above, in Rice & Asplund, Evatt CJ recognised that a purpose of the rule was to discourage “endless litigation”. 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.

   In In the Marriage of McEnearney (1980) FLC 90-866 (McEnearney), Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499):

   … the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.

   The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child. [Emphasis added]

   Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.

   If the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.”

6. I refer finally, without repeating, his Honour’s remarks at [77]-[79] to the effect that the application of the rule in Rice & Asplund is merely a manifestation of the best interests principle, namely that in proceedings to do with parenting orders the child’s best interests are the paramount consideration.

7. Although not stated in terms, both counsel made their addresses to the court on the implicit basis that the applicant needed to show a material change of circumstances and that a further investigation now contemplated by the applicant would be in the children’s best interests.

The material now relied upon by the applicant

The father’s first affidavit filed 16 July 2014

1. It is helpful to start with a brief paraphrase of the affidavit filed with the original application.

2. The affidavit details of the parties and the children.  It notes that the father had applied for a recovery order of the children because of concerns about the children’s safety in the care of the mother.  At paragraph 9 the father set out his primary concerns, which substantially related to the mother’s alleged mental health difficulties and matters related thereto.  He also deposed to the mother leaving X at home alone, failing to take the children to child care/kindergarten, speeding with the children in the car, and most particularly, “the Mother recently hit Y in the face.”

3. At paragraph 29 of the affidavit more detail was given of this assault, and it was noted that, “On the same occasion, the Mother had dragged X through Bunnings by her arm.”

4. It is sufficient to say that the issue of violence was clearly articulated. Indeed all the matters of which the father now complains are detailed in this first affidavit. 

Affidavit filed 14 April 2015

1. In this affidavit the applicant set out background (going to the parties’ age, the details of their relationship and the orders made in October 2014).

2. It is best paraphrased at paragraph 8, where the applicant said:

   “I am concerned about the children’s health and safety in the care of the mother.  I have had culminating concerns with respect to the Mother and her parenting of the children, some of which were ventilated in the previous proceedings.  However, my concerns have heightened since the 2014 orders were made.  A recent disclosure of physical abuse by the Mother towards our daughter Y has necessitated the children remaining in my care and the need for an urgent variation of these orders.”

3. The father went on to depose to the previous proceedings issued in 2014.  At he paragraph 10 he asserted:

   “The necessity for that application was that at the time of the application, the Mother had been suffering depression, was not appropriately caring for the children, and was withholding any time for me to spend with the children.  This was despite us having shared the care of the children during our relationship.”

4. He went on to refer back to a number of matters in his affidavits filed in the earlier proceedings.  These are set out at paragraph 11 of the affidavit and include leaving the younger child, X, born (omitted) 2011, alone and/or inappropriately cared for, an assault on Y in (omitted) 2014 and alleged mental ill health and inappropriate resultant behaviour.

5. The affidavit goes on to detail the events leading up the orders made on 29 October 2014, including a psychiatric report on the mother prepared by Dr D and a family report.

6. The affidavit goes on to deal with matters after the orders were taken out and details difficulties at change-over, concerns as to what the children are being told in the mother’s house and alleged assaults upon the children by the mother, concerns about failure on the mother’s part in attending to the health of the children and an incident on 12 March 2015 relating to marks on Y’s neck. 

7. The affidavit went on to depose to Intervention Order applications taken out by the mother and by the police on behalf of Y (against the mother) and went on at paragraphs 56-69 to depose to what was said to be changes of circumstances.  At paragraphs 56-57 the father deposed:

   “I recognise that Final orders were made relatively recently in this matter.  At the time of signing the final orders, I did so on the basis that the professional opinion at the time was that the children were safe with their mother despite her acknowledged mental health issues.  I hoped that the conclusion of the matter may assist in the improvement of our co-parenting relationship and the mother would be able to restrain herself from physical discipline of the children as well as denigration of myself to the children. 

   Unfortunately this has not occurred.  As detailed, the mother has continued to denigrate me to the children and to encourage them not to discuss me or my life with them at her home or to be open about their life with their mother with me.”

8. The father went on to indicate the mother persists in physically hurting the children, concluded at paragraph 62:

   “I seek that there be a new assessment of this matter to determine if the children are safe in the mother’s care.  I seek that the children live with me, as I am more stable and will ensure that the children are safe from harm.  The children are settled and comfortable in my care, and whilst I recognise the importance that the children have a relationship with their mother, it must be a healthy one and their safety is my highest priority.”

The mother’s Response filed 21 April 2015

1. This Response sought to reduce the time the father spends with the children but was expressly abandoned at trial.  Of course, it sat uneasily with the assertion that there had been no material change of circumstances.

The mother’s affidavit filed 21 April 2015

1. As might be expected, this affidavit in the main constitutes a series of denials of the matters asserted by the father, including most particularly the assertion of assaults on the children and failure properly to attend to the children’s medical needs.  Relevantly for these purposes the mother denied mental ill health and annexed as DC1 letters from (medical organisation omitted) and from (mental health organisation omitted).  The (mental health organisation omitted) letter showed that the mother’s engagement with that authority had been ended and that this was positive.  The letter from (medical organisation omitted) notes the discharge from case management with that service but asserts also “Please continue seeing your GP for support and treatment as required, (mental health organisation omitted) and your Psychologist”.

2. It should be noted that the mother admitted (paragraph 56) denigrating the father on occasions and asserted that she has sought professional counselling to assist her with refraining from such actions in the future.  She also accused the father of denigrating her in front of the children since separation and after the orders were made.  She gave specific instances of such abuse in November and December 2014.

The affidavit of the father filed 5 May 2015

1. This affidavit was an update and also a response to the mother’s affidavit.  So far as it responds to the mother’s affidavit, necessarily it is self-exculpatory.  So far as updating was concerned, the affidavit noted (paragraph 34) that the police had withdrawn the Intervention Order application made against the mother on behalf of Y due to lack of evidence and that the Department of Human Services had closed their case.  The affidavit went on to depose repeated disclosures of assault by the mother and asserted that the children were scared to return to their mother.

The mother’s affidavit filed 6 May 2015

1. Unsurprisingly, this affidavit contains further allegations made against the father, but the important aspects of the affidavit are in the annexures.  Annexures DC5 and DC6 are letters addressed to the court from Dr B dated 16 April 2015 and 28 April 2015 respectively.  They traverse a number of the matters (one might say all the matters) alleged by the father’s material, including the mother’s attendance upon PARC in (town omitted).  Relevantly, the letter dated 16 April 2015 asserts at paragraphs 13-16 says:

   “Ms Chapman has an acknowledged history of mental health issues but she has repeatedly demonstrated insight into these and she has shown a willingness to seek assistance as required.  Ms Chapman has long struggled to save her marriage but it would seem that this has not been reciprocated. 

   Currently I do not consider Ms Chapman meets the diagnostic criteria for any DSM-V psychiatric disorders, although she is very worried about the well-being of her daughters and stressed by the many issues that are current.  Ms Chapman does not present as a risk in terms of suicide, homicide or violence against self or others.

   It has never been the case that I have considered Ms Chapman displays inappropriate anger but we are currently reviewing anger management strategies in line with the request from her DHS Child Protection case worker. 

   As regards the red marks on her daughter’s neck observed immediately after her daughter’s access with Mr Chapman, Ms Chapman was horrified and immediately took the issue to the local Police service.  She observed them to be uninterested after her daughter stated she had inflicted the injury on herself on the swing.  It is of great concern that the children thereafter were placed in the care of the father after the story to explain the injury had changed again.  Needless to say, it has caused Ms Chapman great distress.”

2. The letter dated 28 April 2015 relevantly adds the following:

   “In recent sessions with Ms Chapman I have provided a cognitive behavioural framework for effective management of anger, frustration, etc, at Ms Chapman’s request.  This brief approach has been observed to be highly efficacious in a range of presentations and a range of populations.  I consider that Ms Chapman achieved a very good understanding of the strategies and the theory behind them.”

3. Finally for these purposes, annexure DC7 is a certificate of participation by the mother at a post-separation cooperative parenting program conducted by Berry Street and issued on 13 October 2014.

4. It should be noted that following the filing of all this material, Judge Baker made orders by consent on 12 May 2015, when both parties were represented by counsel, for the children to be returned to the mother and the parties to engage in family therapy, family care and follow all reasonable directions of family care, with the father’s application to be listed as a Rice & Asplund discrete issue.  The mother was further restrained from physically punishing or chastising the children. 

The father’s affidavit filed 30 September 2015

1. This affidavit referred to the history of the matter up until the orders made on 12 May 2015 and sets out thereafter a detailed series of complaints about the mother’s alleged failure to comply with the orders, including engagement with family therapy.  There has clearly been significant disputation about where Y will go to school next year.  The parties have also, in my view, bickered both unhelpfully and typically in relation to the question of counselling.  What this material shows more clearly than anything else, in my view, is the ongoing difficulty that the parties have in communicating in a sensible and adult way. 

The affidavit of the mother filed 29 September 2015

1. This affidavit takes the matter no further.  I note that the mother continues to deny harming her children and asserts at paragraph 15, “I believe that this continued and inconclusive litigation is adversely affecting my children.  I believe that the stability of the lives of my daughters is an essential prerequisite for their well-being.”

The submissions made at Court – the father

1. Counsel for the father pointed to the application in the mother’s Response and the fact that the latter sought to reduce the father’s time.  He noted the two disclosures set out at paragraphs 32 and 47 of the affidavit filed 13 April 2015, wherein the mother slapped the children.  He noted the course of the subsequent intervention application and the increasing concerns the father had about the mother’s mental health.  Counsel referred to the report of Dr D dated 26 September 2014 and the mother’s history as an inpatient in its psychiatric treatment for two weeks in May to June of 2014.  He referred to the constant disclosures (see the affidavit filed 24 September 2015), the continual alleged breach of orders and problems at changeover.  It was submitted that the mother’s functioning has deteriorated and that the whole circumstances have changed.  It was submitted that if the matter is permitted to proceed, this may rectify the problems that are extant, and that this would also be in the children’s best interests. 

2. Counsel submitted that the issues in dispute were never the subject of curial disposition and pointed to the refusal of the mother to attend family therapy.  He raised issues to do with Y’s schooling, which I was able, as I recall it, to resolve on the spot.

Submissions of counsel for the mother

1. Counsel made it clear that the mother’s initial Response was no longer relied upon.  She seeks a continuation of the orders made in October 2014.  She pointed to preparedness to engage in family therapy and noted that the mother adamantly denied any physical chastisement of the children, which in any event has not been substantiated by the Department of Human Services.  She submitted that the mother’s mental health had been dealt with in the last trial, that the mother was still seeing Dr B, a psychologist, and that there had been no significant change in circumstances and that further litigation would be damaging to the children.

The materials in the first tranche of proceedings - Human Services letter dated 23 April 2015.

1. This report details the various interventions that the Department of Human Services have had with the family.  It records the most recent interaction following a report on 10 March 2015.  I note that the incident of the alleged red mark on the neck/chest did not proceed because the child Y told the police this occurred on the swing at a park.  During the next access by the father with the children, he took Y to the police, but the report noted:

   “However it is reported how during the interview Y was uncertain of details and appeared to have been coached by her father.”

1. A further report had previously been made on 12 January 2015 with concerns that the mother was hitting the girls and that they were fearful of her, hiding under her bed.  The intake also dealt with issues of the mother’s historical mental ill health.

2. A prior intake report arising from a report on 10 July 2014 dealt with “a further allegation of the mother slapping Y’s face twice about three weeks ago”.

3. I note that at page 4 the report says:

   “There had been no reports to Child Protection until after the mother had decided to leave the relationship with the father.  The concerns appear more related to conflict and stress related to FLC issues than issues of child abuse/maltreatment.  The mother has a history of Depression and Anxiety.  However, she has engaged with the Mental Health Service who have not noted any concern for her care to the children.”

4. Pages 5-6 of the report note:

   “There is a significant level of conflict between the parents however there is currently not sufficient harm to the children to warrant ongoing Child Protection involvement. The children are in the care of their father currently, with no concerns being raised regarding the father’s level of care towards the children. 

   If the children were to return to the mother’s care, Child Protection would have no immediate or significant concerns regarding the children’s safety or wellbeing, given the circumstances around Y’s disclosure, the mother …”

Consideration

1. Although I have traversed the materials filed by the parties relatively extensively, the conclusion in this case is all too clear.  The predominant concern now advanced is really that of the mother’s ill health and the associated lack of control in her dealings with the children, including alleged physical chastisement, as a result.  The truth is this matter was at the forefront of the proceeding in 2014.  Dr D report disclosed nothing of any significant concern in either parent.  The matters the father now seeks to raise, including the assertions of physical chastisement of the children, were part of the known mix at that time.  To the extent that the father’s alleged disclosures made by the children more recently might take the matter further than it had been before (particularly in relation to X, about whom no particular assertion of physical assault had previously been made) it seems clear to me, even on the materials as they stand, that they do not amount to a material change of circumstances when looked at in the light of the proceedings and the evidence as a whole.

2. The father has been maintaining at all times that the mother is not a competent person to care for the children and that her time should be supervised and/or otherwise restricted.  The mother has always denied this adamantly.

3. In my view, it is simply not in the children’s best interests to recommence litigation all over again.  The matters now to be traversed are all or, if I am wrong in that regard, very nearly all, of the matters that the father previously sought to agitate.  It is true, of course, that there was never a curial determination of the matters in issue between the parents before the October 2014 orders were made.  That was because the parties chose not to have one. 

4. The fact is that on the evidence as it presently stands (and also stood previously), the chances of any findings that the mother is at risk of misconduct in respect of the children when they are in her care because of mental ill health seem very low.  Despite the parties’ failure to cooperate and behave appropriately at changeover and the like, these are not in the scheme of things such as to make it appropriate for there to be further inquiry. 

5. I note that the family report found the children to be delightful and well cared for and comfortable with each parent.  The Department of Human Services’ most recent report notes that on 23 April 2015 (a date very close to the alleged assaults by the mother on her) Y’s previous child care centre advised that she presented as happy and well cared for in her mother’s care, and preschool raised no concerns regarding Y’s presentation or her interaction with her mother.

6. What is really in the best interests of these parents is that they embark upon the family therapy agreed to in October 2014 in an endeavour to improve their behaviour and interaction.  I will hear the parties as to whether it is appropriate to make any further orders in this regard.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 17 December 2015