Claringbold and James
[2011] FamCA 211
•18 February 2011
FAMILY COURT OF AUSTRALIA
| CLARINGBOLD & JAMES | [2011] FamCA 211 |
| FAMILY LAW – CHILDREN – Application to significantly alter the parenting arrangements for a child after a contested hearing in 2007 – Consideration of Rice & Asplund (1979) FLC 90-725 and Marsden & Winch [2009] FamCAFC 152 – Whether the mother should be declared a vexatious litigant pursuant to s 118 of the Family Law Act 1975 (Cth) |
| Family Law Act 1975 (Cth) s 118(1) |
| Claringbold & James [2007] FamCA 1032 Marsden & Winch [2009] FamCAFC 152 Oscar & Traynor [2008] FamCAFC 158 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2009) FLC 93-363 |
| APPLICANT: | Ms Claringbold |
| RESPONDENT: | Mr James |
| INDEPENDENT CHILDREN’S LAWYER: | Lampe Family Lawyers |
| FILE NUMBER: | MLC | 3009 | of | 2009 |
| DATE ORDERS DELIVERED: | 8 September 2010 |
| DATE JUDGMENT DELIVERED: | 18 February 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 8 September 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self-represented litigant |
| COUNSEL FOR THE RESPONDENT: | Self-represented litigant |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Eidelsen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Lampe Family Lawyers |
Orders
IT IS ORDERED:
1.That the mother’s application in a case filed on 27 August 2010 stand as her application in this proceeding for final orders for the child A born … December 1998 to reside with her and spend time with the father.
2.That the mother’s application for a change in residence of the said child A be and is hereby dismissed.
3.That the mother spend time with A as follows:-
a) during school terms each alternate weekend from Friday afternoon until 6.00 pm on Sunday commencing 10 September 2010;
b) from one half of each school term holidays from the first Monday of the school term holiday to 6.00 pm on the second Wednesday of the school term holiday;
c) during the long summer school vacation as follows:-
i)in 2010 and each alternate year thereafter:-
I)from 21 December until 6.00 pm on 30 December; and
II)from 11 January until 6.00 pm on 22 January;
ii)in 2011 and each alternate year thereafter:-
I)from 30 December until 6.00 pm on 10 January; and
II)from 16 January to 6.00 pm on 26 January; and
d) as otherwise can be agreed between the parties in writing.
4.That the changeover point for time to be spent pursuant to paragraphs 3 and 5 be at the W Railway Station and that such time commence:-
a) for alternate weekend time during school terms, on Friday afternoon, as close to 6.00 pm as possible having regard to train availability; and
b) during school term holidays, the long summer school vacation and Mother’s Day to commence on the day specified at as close to 6.00pm as possible having regard to train availability.
5.That in the event that Mother’s Day falls on a weekend during which the mother is not entitled to spend time with A pursuant to paragraph 3(a) or (b) hereof then A spend time with the mother on the weekend of Mother’s Day from Friday after school until 6.00 pm on Sunday.
6.That if Father’s Day falls on a weekend during which the mother is entitled spend time with A pursuant to paragraph 3(a) hereof that time be and is hereby suspended.
7.That the mother be responsible for initiating telephone calls to A for the purpose of communicating to A and do so between 6.00 pm and 6.30 pm on Tuesdays and Sundays when the child is not in her care for any part of that day.
8.That when the child A is spending time with the mother, the mother do all things necessary to ensure that the child’s mobile telephone is charged, in a mobile telephone area and available to take calls and the father initiate telephone calls to the child’s mobile telephone service between 6.00 pm and 6.30 pm on Tuesdays and Sundays.
9.That the parties do all acts and things necessary to ensure that A can speak privately with the other parent and not be subject to any interference or control by or on behalf of the other parent during the telephone communication.
10.That the mother be and is hereby restrained from smoking inside her home or any enclosed living area when the child is spending time with her.
11.That the mother be and is hereby restrained from consuming alcohol for a period of eight hours prior to, or during, the time she spends with A.
12.That the mother be and is hereby restrained from having the child attend upon any psychologist, psychiatrist, counsellor or any other like mental health professional without the prior written consent of the father.
13.That the mother be and is hereby restrained from having the child attend upon any medical doctor, save for in the event of a medical emergency which may arise while the child is spending time with her and then the mother notify the father as soon as possible of the medical emergency and the name and address of the treating doctor.
AND THE COURT NOTES that the preceding four orders were made either with the consent of the mother or without opposition from her on the basis that she said that she did not intend to do any of the foregoing.
IT IS FURTHER ORDERED:
14.That the mother do all acts and thing necessary to ensure that the child is in bed by 10.00 pm on any night when the child is spending time with her and that, in any event, the child has no access to electronic games or entertainment after 10.30 pm.
15.That on up to five occasions in each twelve months commencing on 1 September 2010 the father be at liberty to provide the mother with not less than two months written notice of his request to change a spend time weekend to the weekend immediately following that weekend whereupon the weekends will be swapped. In any event, the father is to provide the mother with the Scout’s calendar promptly upon receipt with confirmation that A is still attending regular Scouting activities.
16.That on up to two occasions per year the mother is at liberty to provide the father with not less than two months written notice of her desire to change a spend time weekend to the weekend immediately following that weekend provided that neither weekend has been subject to an election by the father pursuant to the preceding paragraph and the weekend will, thereby, be swapped.
17.That pursuant to s118(1) the mother be and is hereby restrained from instituting proceedings concerning the said child unless she first obtains leave of the Court to institute such proceedings against the father, such leave to be made by any judge of the Family Court of Australia. (that is, not restricted to Bennett J)
18.That until further order the mother be and is hereby restrained from causing permitting or suffering the child to have any access to the website and, for the avoidance of doubt, this order does not affect the child’s access to the website Moshimonsters.com.
19.That the mother forthwith do all acts and things necessary to close the account which supports any page on which any details or any pictures of the child appear in Facebook.
20.That the time in which an appeal can be lodged against this decision is extended to thirty days following the delivery of my reasons for this decision.
21.That the evidence of Ms B, family consultant, given this day be transcribed and when transcribed a copy be made available to the parties.
22.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Claringbold & James is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3009 of 2009
| Ms Claringbold |
Applicant
And
| Mr James |
Respondent
And
| Lampe Family Lawyers |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These proceedings are brought by the applicant mother, Ms Claringbold (“the mother”) by way of amended application in a case filed in this Court on 27 August 2010. No issue was taken by the respondent father, Mr James (“the father”) or the Independent Children’s Lawyer (ICL) as to the incorrect form of the application,[1] which should properly have been filed as an initiating application.
[1] Transcript of proceedings, 8 September 2010, 3 – 4.
These proceedings relate to the parties’ daughter, A (“the child”), born in December 1998. At the time of the hearing before me, the child was nearly 12 years old.
The parties have been in litigious conflict for a substantial part of the child’s life.
Essentially, the mother seeks to apply to have the arrangements that have been in place since September 2007 substantially altered so that the child will primarily reside with her, and spend significant and substantial time with the father by way of alternate weekends. Pursuant to my orders (extracted as Annexure A) of 3 September 2007, the child has primarily resided with the father with provision for her to spend alternate weekend time with her mother. The mother did not exercise her rights in relation to spending time with her child for some time after that hearing, and only re-commenced spending time with the child regularly in early 2010.
The mother relies on an affidavit filed on 27 August 2010, as well as an affidavit filed on 16 December 2009.
The father resisted the mother’s application and also sought to have the mother declared a vexatious litigant pursuant to s 118(1) of the Family Law Act 1975 (Cth) (“the Act”).
On 8 September 2010, I made the orders that have been reproduced in these reasons for judgment. I indicated to the parties that I would first deliver my orders and then deliver my reasons for judgment. The parties did not object to this approach.[2] These are those reasons.
Brief history of the proceedings before the Court
[2] Ibid, 80.
On 3 September 2007, following a defended trial over 11 hearing days, I delivered my reasons for judgment in relation to the dispute between the parties: see Claringbold & James [2007] FamCA 1032. It is unnecessary to do otherwise than briefly record the substantive effect of that Judgment.
Orders had been made by consent in March 2004 by Joske J which provided that the parties would share equally parental responsibility; that the child would live primarily with the mother; and that the child would spend alternate weekends with the father. The proceedings before me in September 2007 were initiated by the mother when she filed an application in the Federal Magistrates Court of Australia in November 2005. In essence, the mother sought to suspend the time that the child was to spend with her father on the basis that such time exposed the child to an unacceptable risk of abuse, in particular, sexual abuse by the father. The father opposed that application.
The orders that I made on 3 September 2007 reversed what had been the parenting arrangements for the child as between the mother and the father. In effect, as a result of my orders, the child was to primarily reside with the father and spend alternate weekend time with the mother. This reversed the status quo.
I had found that the mother substantially, and the father in part, lacked insight into the deleterious effect of their conflictual behaviour and actions on the child. I found that the mother was unwilling, but the father and his partner were willing, to change their attitudes in encouraging the development of meaningful relationships between the child and the other parent. Ultimately, I found that the mother lacked insight into her daughter’s emotional and physical needs, particularly in relation to the child’s safety. The reason for this largely stemmed from the mother placing the child at risk of family violence by entering into and maintaining relationships with men who were violent either towards her, or in her presence, in front of or within the environment of the child. I considered that the mother’s inability to prioritise the needs of her child above and beyond her own needs to be a significant factor in determining what was in the child’s best interests.
In 2007 I also found that between 2001 and the time of the hearing the Department of Human Services had received 16 notifications involving the child. I examined the evidence in relation to each of those notifications. Significantly, at the time of the hearing in 2007, and at the time of the application before me in September 2010, the Department had not sought to be actively involved in relation to the child. I made an order pursuant to s 65L that the family consultant, Ms B, supervise compliance with the orders. As at 2007 this Court still had the resources to support supervision orders. Unfortunately for the community, it does not have those resources now. In any event, Ms B was accessible to the family from the time of the final orders in 2007.
The mother did not appeal the 2007 decision.
The issue of costs required the parties to be before the Court on 16 October 2007. The mother was still self represented and appeared by telephone link up. Apropos of nothing to do with the child, the mother she said that she would have telephone communication with the child, but not spend face to face time with her anymore. There was no application to suspend or discharge the orders and no time to arrange for the input of the supervising family consultant. The ICL was before the court to prosecute his costs application against the mother. I noted on the Order of 16 October 2007:
AND THE COURT NOTES that the mother has this day informed the Court, the independent children’s lawyer and the husband that she does not propose to exercise her rights to spend time with [A] born … December 1998 pursuant to paragraph 4(a)(i) – (iv) & 6 of the Orders made on 3 September 2007 and in the future will confine herself to telephone communication on Wednesdays and Sundays pursuant to paragraph 4(v) and I DIRECT that a copy of this Order be provide to the section 65L family consultant assigned to this matter.
The mother did not then spend time with the child again until May 2009.
On 8 February 2008 I ordered that the mother pay part of the costs of the father and the ICL of the 2007 proceedings.
On 7 April 2009 the mother filed a contravention application in the Federal Magistrates’ Court alleging that the father had contravened the 2007 order on 18 counts mostly in relation to telephone communication. That application was transferred to this Court by Federal Magistrate Reithmuller on 28 April 2009.
On 14 May 2009 I ordered that the family consultant prepare an assessment and that the contravention otherwise be heard on 18 May 2009.
On 18 May 2009 the mother withdrew the contravention application, and it was ordered that the parties attend a parenting program at Centacare and the child spend time with the mother as follows:
a)from 11.00 am to 6.00 pm on Saturday 23 May 2009 and Saturday 30 May 2009;
b)from 9.30 am to 6.00 pm on Saturday 13 June 2009 and Saturday 20 June 2009;
c)from 11.30 am on Saturday to 6.00 pm on Sunday on the weekends 4 and 11 July 2009;
d)from 11.30 am on Saturday 25 July 2009 to 6.00 pm on Sunday 26 July 2009 and for those hours and days for each alternate weekend thereafter; and
e)as may otherwise be agreed between the parties and confirmed in writing.
This was the recommencement of the child spending time with the mother, following her mother’s decision in October 2007 not to spend any face to face time with the child.
In August 2009 I dealt with an urgent application by the father to release the child’s passport to him to enable he and his wife to take her to Singapore for a holiday. Make up time with the child was ordered for the mother.
On 13 January 2010 the mother filed an application initiating proceedings in which she sought to re-instate the 2007 order to spend time with the child each alternate weekend and for half the school holidays. The mother was already having alternate weekend time with the child pursuant to the Order of 18 May 2009.
On 2 February 2010 Senior Registrar Fitzgibbon ordered that the family attend child responsive counselling which, in due course, was assigned to Ms B. Ms B, saw the family on 19 March 2010 for the purpose of a child and parent issues assessment. The assessment is dated 25 March 2010.[3] It is more comprehensive than what is generally expected of an initial assessment pursuant to s 11F and is a helpful and internally consistent document. By way of background information, the family consultant expresses the following opinion at page 2:
The parents have been completely unable to reduce their level of conflict over the years, and it was evident on the day of the interview for this assessment that, despite numerous attempts by Community Agencies and the best endeavours of the Court, including implementation of a 3 year Supervision Order, these parents, particularly [the mother], will continue to litigate rather than negotiate.
[3] Affidavit of Family Consultant sworn 8 April 2010.
The family consultant recorded, at page 4 of the assessment, that:
[The child] drew her knees up to her chin and looked distinctly miserable during discussions about the length of time her parents have been in dispute. Shrugging her shoulders she stated, “I’m sick of it – I don’t ever remember differently, well how old was I anyway.”
The family consultant recorded, at page 7 of her assessment, a telephone conversation with a Ms H of Department of Human Services as including the following:
Ms [H] reported that given the length of time the parents have been in dispute and their inability to source some solutions to their conflict, Child Protection are concerned about the degree of cumulative harm which [the child] may have suffered. Ms [H] stated that if the situation remains unchanged and [the child] continues to be exposed to this level of emotional stress, Child Protection might consider removing [the child] from the care of both parents.
The family consultant opined, at page 8 of the assessment:
The one issue which must be addressed is the frequency with which this matter has returned to Court, because if it is allowed to continue it will have a lasting negative effect on [the child]. The parents have to understand that the purpose of the Court is not to intervene in every dispute which arises between parents, because as adults it is the parents’ responsibility to be sufficiently far sighted and mature to be able to place their child’s welfare ahead of their own needs. Whilst [the mother] might well believe that her continuous Court Applications reflect her concern in respect of [the child’s] well being, in reality such frequent action is counter productive and risks continuing stress to [the child] unnecessarily.
At page 9 of the assessment, the family consultant continued, “[The child] made it patently clear that she does not want to return to Court in any circumstances, and unless the parents begin to understand life from her perspective, in the next handful of years which remain of her childhood, she might make the decision to remove herself from each of their houses.”
Amongst other things, which included acceding to the child’s request to spend more time with the mother, the family consultant considered that it would be in the child’s interest that “[the mother] not be permitted to make further Applications to the Court except in extreme circumstances.”[4]
[4] Ibid, 9.
On 28 April 2010 the matter came before me. The father was not agreeable to the weekend and holiday time sought by the mother. I heard evidence from the family consultant who was cross examined by both parties. I made interim orders which, amongst other things, put in place the alternate weekends sought by the mother and the child as well as the first week of the school term holidays which would fall between then and this final hearing.
At a mention on 6 August 2010 in anticipation of this final hearing, I ordered that each party set out in amended form their application and response and, in affidavit form, their views of what had worked well with the then current arrangement for alternate weekend and school holiday time, what had worked poorly and what he/she proposed for the future in relation to the child. I also ordered a further s 11F assessment by the family consultant.
The orders now sought by the mother
For the reasons that I have indicated to the parties, I struck out as incompetent some of the orders sought by the mother.[5] For example, some of the orders sought were impracticable, nonsensical or matters which ought to have been sought on appeal. The orders properly sought before me were as follows (replicated without correction from the original document with original emphasis):
[5] Ibid, 4 – 8.
(1) That [the child] reside with the mother.
(2) That the Mother have sole parental responsibility for the child.
(5) That protective measures be put in place to stop further aggressive, intimidating behaviour toward the applicant mother and child, due to respondents controlling domineering manner.
(6) The respondent be restrained from keeping the applicant mother under surveillance.
(7) That [the child] spend time with the respondent father each alternate weekend 6pm Friday to 6pm Sunday.
(8) That [the child] Spend one week school [term] holidays with the respondent Father.
(9) that For Summer School Holiday [the child] spend the first half including Christmas Day and her Birthday with the applicant mother 2010, as I Have been denied any access to her for the past 3 years. And alternate this each year after that.
(10) That the respondent father and his representatives be restrained from denigration the applicant mother and discussing and involving [the child] in adult issues
(11) that the applicant mother be allowed to take all steps necessary ensure [the child’s] educational, are meet as she had fallen so far behind in the past 3 years and it appears that the respondent father is openly prepared to take action if I have issued court proceeding and the matter is brought to the attention of Justice Bennett.
Some of those orders sought were clarified by the mother. The mother clarified that what she sought apropos “protective measures” in order 5 was that “the father not contact or speak to [her] at contact change-overs”.[6] The mother also sought an order for equal shared parental responsibility in relation to educational matters affecting the child.[7] Her cross‑examination of the Family Consultant revealed that she held concerns for the child changing schools and not knowing other students at a new school.
[6] Ibid, 6.
[7] Ibid, 7.
The mother agreed with me that what she sought was a “role reversal” of the child’s residence.
The orders now sought by the father in response
The father conceded that the child should spend time with the mother over the end of year holidays, which in alternate years would include the week that Christmas Eve and Christmas Day fell.[8] I ordered accordingly.
[8] Ibid, 11.
The orders sought by the father appear as follows:
(2) That [the child] spend time with her mother each alternate weekend during school terms from 6pm Friday to 6 pm Sunday.
(3)(a) That [the child] spend time with her mother from 6pm on the first Tuesday of the school term holiday to 6pm on the second Wednesday of the school term holiday (b) In the long summer vacation, from 6pm on the second Tuesday of the school term holiday to 6 pm on the third Wednesday of the school term holiday to include a further week from 6 pm on the fourth Tuesday of that vacation to 6pm on the fifth Wednesday.
(5) That the Applicant Mother be responsible for making calls to [the child’s] mobile phone between 6pm and 6.30pm on Tuesdays and 6pm to 6.30pm on Sundays.
(6) When [the child] is staying with her mother, the Respondent Father to make calls to [the child’s] mobile phone between 6pm and 6.30pm on Tuesdays and 6 pm to 6.30pm on Sundays.
(7) That [the child] makes phone calls to the Respondent Father of her own free will, without interference, when she is in the care of her mother. The mother is to allow [the child] to have full control of her own mobile phone.
(8) Discharge Paragraph (4)(a)(vi) as per Court Orders of the Honourable Justice Bennett dated 2 August 2007.
(9) As otherwise agreed in writing between the father and the mother.
(10) That the mother be restrained from smoking insider her home or any other premises where she is staying with [the child], while [the child] is in her care.
(11) That the mother be restrained from consuming alcohol (8) hours before or during the time she spends with [the child].
(12) That the mother ensures that [the child] has adequate sleep while [the child] is in her care.
(13) That the mother be flexible with changes which may arise due to family invitations and opportunities, invitations for [the child] to attend parties, and for [the child] to attend Scout weekend activities should they fall on a contact visit weekend, as per the Scout calendar provided to the mother at the start of each year. Equivalent makeup time will be given.
(14) That the changeover point for time spent to be [W] railway station.
(15) That until further order, the mother be and is hereby restrained from causing permitting or suffering any adult other than a blood relation of [the child] to sleep or stay overnight at her residence when [the child] is spending time with her.
(16) When [the child] is spending time with her, that the mother be restrained from staying overnight with [the child] at the home of any adult other than a blood relation of [the child].
(17) That the mother do all acts and things necessary to contact the proper officer of the school attended by [the child], to obtain details of what homework would be appropriate for [the child] to undertake when she is in the care of the mother each alternate weekend for approximately half an hour on Friday evening.
(18) That the Applicant Mother be restrained from instituting any further proceedings against the Respondent Father in any Court having jurisdiction under the Family law Act 1975, unless the Applicant Mother first obtains leave to institute such proceedings from the Honourable Justice Bennett or such other judge of the Family Court of Australia if the Honourable Justice Bennett is unavailable.
The father clarified before me that what he sought in relation to order 12 was that the child be subject to a regime of bedtime at 9.30pm and not have access to electronic equipment after 10.30pm.[9] He also clarified that what he sought in order 13 was that “on no less than two months notice [he] could change one spend time weekend for the next weekend if it would otherwise conflict with [the child’s] scout activities, and on two other occasions per year”.[10] In relation to order 16, the father agreed that what he actually sought was that the mother be restrained from staying overnight with the child at the home of any adult other than a blood relation of the child and then with the blood relative being present.[11]
[9] Ibid, 15.
[10] Ibid, 18.
[11] Ibid, 19.
The mother agreed that Paragraph (4)(a) of my orders of 3 September 2007 should be discharged (see Annexure A).[12]
[12] Ibid, 14.
The father also sought an order pursuant to s 118(1) of the Act, declaring the mother to be a vexatious litigant.
The orders now sought by the ICL
The ICL submitted that the mother’s application fell short of establishing the necessary threshold test (as outlined in Rice & Asplund). That is, that the mother had not established a prima facie case of a significant or substantial change in circumstances which would necessitate a consequent change being made to the parenting arrangements that have been already determined by final orders of the Court. The ICL also submitted that allowing a re-opening of the matter to determine whether the child should primarily reside would be contrary to the child’s best wishes, and the views that she has expressed to the Family Consultant.
Relevant Law
As the mother sought to significantly alter the parenting arrangements that had been in place for some time following the making of final orders in 2007, it is necessary to consider the law relevant as to whether there has been a sufficient change in circumstances.
In Rice & Asplund,[13] Evatt CJ stated at 78,905:
[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, 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.
[13] Rice & Asplund (1979) FLC 90-725.
This “rule” was considered by his Honour, Warnick J, in SPS & PLS[14] as follows:
[14] SPS & PLS (2008) FLC 93-363, 82,451.
48. 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 and 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 Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
Most recently, in Marsden & Winch,[15] the Full Court of the Family Court (Bryant CJ, Finn & Cronin J) endorsed the above comments of his Honour, Warnick J in SPS & PLS at [47]. The Full Court also identified the importance of weighing up whether to “embark upon another hearing” regarding a change in circumstances is in the best interests of the child. The Full Court relevantly opined:
[50] Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
1. The past circumstances, including the reasons for the decision and the evidence upon which it was based.
2. Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
3. If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[15] Marsden & Winch [2009] FamCAFC 152.
The affidavit evidence of the mother and the father
The mother’s affidavit evidence was largely directed to historical matters, allegations and unsubstantiated and inconsistent statements regarding matters that had either been live or determined before me in 2007. In general, those very few matters that arose in the affidavit which could be considered admissible (or comprehensible) were not relevant to the question of my determination pursuant to the aforementioned legal test. Accordingly, I placed little weight on the matters arising from that affidavit.
Similarly, the father’s affidavit was directed to historical matters and matters that were responsive to the mother’s various irrelevant allegations or unsubstantiated statements. I also place little weight on that affidavit.
The presentation of each parent’s case was unfiltered by legal representation. I found their demeanour in court and the presentation of their cases to be informative.
The submissions of the mother
The mother’s concerns, which she submitted supported the reversal of the residence arrangements, can be summarised as follows. The mother submitted that the child has dyslexia, and that she was well behind other students in her school class. The mother also submitted that the father was not capable of meeting the child’s complex needs in regards to her education and that the child’s school was not meeting her needs.
The mother expressed concern that the child had not spent time with her in nearly three years, however, this was her choice between October 2007 and May 2010. Further, the mother also argued that the time that she was permitted to spend with the child was considerably taken up by having to hear the child read. The mother stressed that this was because of the child being quite behind her class.
Last issues assessment of the Family Consultant
The Family Consultant, Ms B, prepared a “Children and Parents Issues Assessment” dated 2 September 2010. The Family Consultant identified the following complaints by the mother against the father at pages 1 – 3:
·that the father is unable and unwilling to maintain the child’s health and hygiene;
·that the child is not receiving proper educational support from either the father or her school;
·that the child is unsafe in the father’s care, because Mrs [James] “punches and hits” the child;
·that the father listens to the child’s telephone conversations with the mother and restricts the length of the calls she has with her.
The Family Consultant reported that the father denied these complaints.
In that assessment, the Family Consultant gave the following observation of the child (replicated without correction) at pages 3 – 4:
· [The child] was very reluctant to be interviewed She stated that whilst she did not mind ever talking to the Consultant, she had nothing more to add to past information in respect of her parents. She firmly stated that she did not want any changes to the parenting arrangements, save for “spending a bit more time with Mum” during the summer vacation. [the child] was asked to scale her level of contentment – 1 denoting extremely unhappy – 10 extreme happy. [The child] responded by stating that she “did not belong on that scale”, and that she would rate her life currently at 15. She added that she was happy at school, and at her mother’s house and her father’s house. She shrugged her shoulders and smiled when asked to comment on the parental dispute. [The child] appeared well dressed and except for a chest cold appeared in good health.
· Given the length of time that these parents have been in dispute there does not appear to be any way that the communication can be improved by further counselling
The Family Consultant ultimately recommended, at page 4, that:
· [The child] to continue to live with her father and spend alternate weekends with her mother.
· The Court might consider extending [the child’s] time with her mother on the long Summer vacation.
· [The child] to spend 1 week of every school term vacation with her mother.
· Phone calls to continue as arranged with the adjustment of the mother instigating the phone calls.
· In the Consultant’s opinion, the mother’s suggestion of [the child] requiring counselling or support is unnecessary and potentially harmful.
· The father be permitted to change [the child’s] school at the end of 2010
· There be no further Court Applications in respect of [the child] made by the mother except in cases of emergency.
The evidence of the Family Consultant
The Family Consultant was interposed on 8 September 2010. Given the threshold test that the mother needs to establish, I propose to set out from the transcript of proceedings much of the Family Consultant’s oral evidence.
While I acknowledge that the mother was self-represented, it must be noted that the questions asked by her of the Family Consultant were generally not useful or helpful to her case. For example, the mother would make statements about her grievances with the Department of Human Services and expect comment from the Family Consultant about the justice of that situation. The mother also refused my invitation to ask any further questions of the Family Consultant later on 8 September 2010, stating that it did not matter what she asked as she perceived her application was unlikely to be successful.[16]
[16] Transcript of proceedings, 8 September 2010, 63.
The Family Consultant has had the opportunity to observe the child over a longitudinal period by virtue of the order I made pursuant to s 65L of the Act in 2007, and the subsequent consultation she has had with the child arising from the mother’s most recent application.
The Family Consultant identified that the “way forward” for the parties in relation to the care of the child is:
… to listen to the wishes of the child. She is clearly expressing to me that she is very happy with the current arrangements of living with her father and spending time with her mother. I asked her on a scale of one to 10, which we’ve done this before with [the child] - the method of scaling, one being really, really unhappy with her life; 10 being really, really happy with the current arrangements. She said, “I’m not on the scale. It’s 15 out of 10. I’m really, really happy.”[17]
[17] Ibid, 39.
Additionally, the Family Consultant stated that the child had expressed the view that she would like to “spend a bit more time with her mother over the summer vacation”.[18] The Family Consultant shortly thereafter agreed that “what might be in the best interest of this child is to divide [the Christmas Holiday break] into two blocks in the summer vacation”.[19]
[18] Ibid.
[19] Ibid.
The Family Consultant reported that the child had expressed to her the view that she had “had enough” in relation to the dispute between her parents.[20]
[20] Ibid, 40.
The following extract between myself and the Family Consultant is replicated as Ms B gave evidence about the child’s demeanour:
HER HONOUR: As to the concerns that you had, Ms [B], in March 2010 are you able to say whether or not you still hold those concerns for [the child] and, if not, why not?
[FAMILY CONSULTANT]: [The child] was - demeanour was different, your Honour, absolutely. It centred around the multiple number of times she was coming in to see me. This is what she was expressing to me aside from what [the mother] is referring to. This is why I - my understanding of why she was a little bit stubborn and a little bit sullen. It was because she didn’t want to come - the same as this time, your Honour, she just didn’t want to come any more.
HER HONOUR: Okay. So did you think that - whilst you’re not a psychologist - you’re not a psychologist, are you?
[FAMILY CONSULTANT]: No, your Honour.
HER HONOUR: No. So you’re not qualified to diagnose psychological conditions. Do you consider that you are sufficiently trained and experienced to identify some symptoms of psychological disorders?
[FAMILY CONSULTANT]: Yes, your Honour.
HER HONOUR: And did you find - did you - in your view was [the child] demonstrating symptoms of depression in March 2010?
[FAMILY CONSULTANT]: In my understanding of the word, no, your Honour.
HER HONOUR: Okay. And what about now?
[FAMILY CONSULTANT]: No, your Honour, I perceived [the child] to be happy with her life in general, more so than most children that come to see me.
HER HONOUR: Okay. When you say that she was disconcerted or frustrated about having - and I don’t think you used either of those words, but I forget what your words were - with the frequency that she was having to come to see you in March 2010, she hadn’t seen you for nearly three years?
[FAMILY CONSULTANT]: I hadn’t, your Honour, but to her it must have seemed quite recent … She made the point that she likes to talk to me, but she doesn’t - her point that she was making was that then and now she doesn’t want to talk about the - her parents’ dispute or the conflict that her parents are engaged in any more and she feels that she’s got nothing more to say.[21]
[21] Ibid, 44.
On the specific question as to whether or not the question of residence should be re-opened, the Family Consultant opined:
It’s my view, your Honour, that this child should be left alone, if you like, to live - enter into adolescence now, which presents with a whole new set of issues for her. She’s - she’s feeling peaceful within herself now and I don’t believe it should be reopened, your Honour.[22]
[22] Ibid, 47.
The Family Consultant opined that the re-opening of the proceedings would have “a very detrimental affect on [the child]”.[23] She specified her concerns in this way:
[23] Ibid, 55.
[FAMILY CONSULTANT]: [The child] has reached the stage where she feels within herself that this conflict is drawing to an end. Now, I don’t know how and why in her mind that she has reached this, but she’s come to the conclusion that it’s finishing. And I think were she to believe that this is going to be reopened, and she has to come back again, and she has to be under a microscope again and possibly attend other - interviews with other professionals again, I think it would have a traumatic affect (sic) on her because she has had enough.
HER HONOUR: Right. In terms of the traumatic affect (sic), do you assess that there would be some impact on her relationship with her father and stepmother?
[FAMILY CONSULTANT]: I think it could be, your Honour. I think - the difficulty here is that because she’s, I think, a bit over 12, she’s at the stage now where developmentally children start to separate themselves from their parents so they look to their peers for company and they look to their peers for advice and - and - and in the case of [the child], she is at the stage where she’s going to have a boyfriend. The difficulty soon, possibly, but then I’m not saying that that would happen, but she is going to look to peers to - if the parental conflict continues at the pace it has she will look to her peers for support in her life. And the difficulty is that she will withdraw from both parents because she’ll say, “That’s enough. I can’t be bothered with either of them”.
HER HONOUR: What impact do you think it will have on her relationship with her mother, as it has been allowed to - as they have been allowed to re-engage since March of this year or whenever the orders were made that there be the alternate weekend time, which was time after about two years of no time?
[FAMILY CONSULTANT]: Yes, your Honour.
HER HONOUR: Yes. So how - are you able to express an opinion about what may happen to how she relates with her mother if she thinks there is going to be full custody proceedings?
[FAMILY CONSULTANT]: Well, it’s difficult to say, your Honour, but I think the - the situation if it were to continue would - all I can say, your Honour, is that it would - in my opinion it would undermine the relationship with both parents and she would lose trust in the - her parents’ ability to reach some sort of conclusion to their conflict. But, now, when I said, “What do you think about your parents’ conflict?” she’s got no - she just shrugged.
HER HONOUR: Okay. So ‑ ‑ ‑?
[FAMILY CONSULTANT]: She’s got nothing to say.
HER HONOUR: She is alive to the fact that there is always going to be conflict, isn’t she, but at the moment has she just hollowed out for herself or carved out for herself a little space where she can insulate herself from the conflict?
[FAMILY CONSULTANT]: Yes, your Honour.
HER HONOUR: Right. She can live with her father and she can go and see her mother and she knows that there are boundaries and she knows that they know that there are boundaries?
[FAMILY CONSULTANT]: Yes. That’s right.
HER HONOUR: She also knows that they can’t bear each other?
[FAMILY CONSULTANT]: That’s right.
HER HONOUR: Right. But as long as the boundaries are there, they are like the protective shell that she can walk around in and so the conflict doesn’t impact on her. Is that right?
[FAMILY CONSULTANT]: That’s exactly right, your Honour.
HER HONOUR: Okay. But you take away the boundaries of the protective shell of the orders which are live here, visit there ‑ ‑ ‑?
[FAMILY CONSULTANT]: Yes.
HER HONOUR: ‑ ‑ ‑ and, then, would she feel under siege or ‑ ‑ ‑?
[FAMILY CONSULTANT]: Yes. I think that she would - that she would - she would become traumatised. She would - her school work, even though she is struggling now, I think that would - I’m sure the teachers would agree, that would affect her school work and it would ‑ ‑ ‑
HER HONOUR: Because she would be distracted?
[FAMILY CONSULTANT]: Yes. She would be - yes, she would be, your Honour. I am absolutely - I have known this child for five years almost and I think that she’s - her ability to cope is - particularly now, because she believes that she’s - she’s got everything she wants. She believes her life.
HER HONOUR: She believes she is a normal little girl?
[FAMILY CONSULTANT]: Yes. So to take that away from her I think would be grossly unfair, your Honour.
HER HONOUR: And what would be taking it away from her? Would it be the change of custody or just embarking on the custody hearing when she ‑ ‑ ‑?
[FAMILY CONSULTANT]: I think – I think that it would be – the realisation that it was not going to end. I mean, she’s only 12. She is limited cognitively to what she can understand as far as the dispute goes, and she would see that it was endless. And, as I say, your Honour, my worry – my concern is that she would look to her peers then and it may be that she might choose inappropriately. It might – I can’t, you know say exactly where it might lead to, but she needs to understand that both parents now are going to – into the future are going work together as best they can, whether using a communication book or whatever it is, and let her – and concentrate on her so she’s – she feels their love and support, your Honour - and not be at conflict with each other.
HER HONOUR: Are you being overly optimistic to say that she needs to know that they’ll work together because they probably will never work together, will they? Maybe the situation that occurs to me – and I’d be interested to hear your view – is that in her 11 or 12 year old mind she has now reached an equilibrium because she thinks, “I’m living somewhere that I’m happy,” and the person who is probably the most important person in her life, her mother with whom she spent all of her formative years, is all right because “I’m seeing her and I can see her regularly and I know she’s fine, and what she’s getting is fair. And so this part of my life is fair.” You know, I think at 11 or 12 there is a consciousness of justice, or a consciousness of what is fair and what isn’t fair?
[FAMILY CONSULTANT]: Yes.
HER HONOUR: And she thinks that this is the most secure stable environment she’s ever known because she gets to see her mother for pretty good blocks of time. She wants to see her a bit more. Right?
[FAMILY CONSULTANT]: Yes, your Honour.
HER HONOUR: But she gets to see her mother for blocks of time and see that her mother is not too hardly done by, and she’s happy where she’s living, and life has never been that good for her. Because when she was with her mother, she wanted to see her father but couldn’t and there was all this strife and turmoil and dramas in the way and court proceedings‑ ‑ ‑?
[FAMILY CONSULTANT]: Yes, that’s right.
HER HONOUR: ‑ ‑ ‑ and allegations flying around. This is the first time it’s sort of been all right. In the two years – I’ll let you say something in a minute – but in the previous ‑ ‑ ‑?
[FAMILY CONSULTANT]: And so good, your Honour.
HER HONOUR: ‑ ‑ ‑ three years ‑ ‑ ‑?
[FAMILY CONSULTANT]: Yes.
HER HONOUR: ‑ ‑ ‑ she’s lived in a stable environment but she hasn’t seen her mother, which would have been an enormous doubt for her, I think?
[FAMILY CONSULTANT]: And she’s rating her life as a 15 out of 10 – was her way of saying – and I’ve never had a child that I’ve interviewed that has rated herself so high. I mean, this was completely spontaneous. She’s smiling, she’s happy, and I think the most important thing that the parents, in particular [the mother], can do is to look at [the child’s] life from where she is now and to travel with her into through adolescence and be a positive influence on [the child’s] life. And that will improve her relationship with her child. It will – it’s going to be difficult because it will mean for [the mother] to let go of that conflict to a certain extent – and I mean that respectfully – because she has believed sincerely that she’s acted in the best interests of the child, and she’s a very good mother. I have to say that, your Honour. She’s trying very hard. I’ve witnessed the bond between mother and daughter and it’s very, very strong. And I can’t encourage [the mother] enough to start where – here, where [the child] is now and enjoy – encourage her relationship and increase her relationship with her daughter and try and let go of the conflict. And I know that’s difficult, your Honour.[24]
[24] Ibid, 56 – 58.
The Family Consultant also agreed with the proposition put by the ICL that there would be “severe” and “de-stabilising” consequences for the child in terms of “disruption to her emotional world” if there was a new “residence fight”.[25]
[25] Ibid, 75.
On the question of what spend time with arrangement might be suitable, the Family Consultant gave the following evidence:
HER HONOUR: So how adequate would the alternate weekends and half of each school term holiday and half – maybe a bit more than half the long summer school holiday. Would that be the appropriate sort of time to spend, having regard to her school work and, you know, some, sort of, friendship commitments?
[FAMILY CONSULTANT]: Yes, your Honour.
HER HONOUR: Not in preference to her mother, but just to round out her life?
[FAMILY CONSULTANT]: Yes. I think so. I think that’s an excellent plan for this child, and I would encourage the mother – and she feels that she hasn’t been kept in the loop, so as to speak, and I encouraged the mother when I spoke to her to make phone calls, to ring the organisations. And it’s up to the father, too, your Honour, to keep [the mother] fully informed on what’s happening. And if it means using some sort of a communication book just for the provision of information about what’s happening with [the child] then that might be the best way of exchanging information, at the present time. And I think the important thing is to – for the parents to allow [the child] to enjoy her life now, for want of a better way of putting it, but she wants to be happy. She wants her parents to be happy. She knows that they’ll never talk to each other, but she just wants them not to fight. And I think this is a fair request, your Honour.[26]
[26] Ibid, 58.
The mother attempted to ask the Family Consultant several questions about the conversations Ms B had had with a Senior Case Worker from the Department of Human Services about its involvement in relation to the family. The mother was unable in many instances to articulate her questions, but rather made statements which sought, in essence, the Family Consultant’s view about the mother’s perceived unfair treatment by that Department. Those statements were generally unhelpful and did not elicit evidence from the Family Consultant which was supportive of the mother’s case. The Family Consultant was able to state in response to one question by the mother that:
The worker from [the Department], your Honour, expressed the view that there has been intermittent involvement with the Department for a long time and the Department were concerned the – the effect – the emotional effect that this would have on [the child] – she was – she was – their – their job is to concentrate on the emotional wellbeing of the child and the physical wellbeing of the child, your Honour, and this particular worker - senior worker’s view was that – that if this continued then [the Department] would have to think about removing the child, and this is what I mentioned, your Honour, to [the mother] at that time.[27]
[27] Ibid, 49.
Words to that effect had been summarised in the Family Consultant’s report. The Family Consultant stated that the reason for the inclusion of that conversation was to bring home to the parties the very real harm they were perpetrating on the child.
The Family Consultant gave evidence that the School Welfare Officer at the child’s school had emphasised to the Family Consultant that, while the child was behind in her class, there was no specific or special action or further initiative that needed to be taken in order to meet the child’s specific educational needs.[28] The Family Consultant also reported that the Student Welfare Officer had said that the parties had to hear the child read in accordance with a learning plan and reading program that had been sent to both parents.[29]
[28] Ibid, 52.
[29] Ibid.
The ICL asked the Family Consultant about the mother’s capacity to let go of the past history of proceedings and her relationship with the father. The Family Consultant stated:
I believe this is so, your Honour. I think that this is – if I can put it this way, your Honour, that the – this child is now very happy. She’s – I would imagine that she is demonstrating, at least in part, to the mother that she’s happy, and this would – quite possibly is a difficult thing for the mother to accept, that this child is distancing herself now from the current situation, and she does not want to be part of this. And I feel that this, emotionally, is very frightening for [the mother], and I would urge [the mother] at this point of time to seek counselling for herself to make sure that she has got supports in place – whatever she wants to call it, supports or counselling – because I think that this, perhaps, is becoming apparent to her that this is almost over. I’m hoping that this is what she’s – the conclusion she is reaching, your Honour. But I think this is – yes, I think it’s a very difficult time for the mother.[30]
[30] Ibid, 73.
The Family Consultant also relevantly identified the comparative difficulty the mother had with letting go of the past to the position that the child was now in:
I understand that [the mother] has been – felt that she’s been disadvantaged over the years in this, and my understanding is that it’s been difficult for her to - to try and move on a little bit with the situation. And [the child] has moved on, your Honour. She is travelling well at the moment. And I think the difficulty here is that [the mother] is - is finding it hard to let go of the conflict, for want of some better way of saying it, your Honour, so that she - she - it would be in [the child’s] best interests for her to now let go of some of those past issues and focus on where [the child] is going and what is needed now into the future for [the child]. Particularly so, because she’s - she’s reading pre-adolescence. She needs her mother. And my idea, your Honour, here, is that if everything in the past can be let go of, and [the child] has a - continues to improve her relationship with her mother and [the child] feels that some of those past issues have gone, it will be in her best interest.[31]
[31] Ibid, 54.
The Family Consultant also agreed with the proposition put by the ICL that there was a disconnection between the mother and her view of her daughter’s wellbeing and the child’s own view of her wellbeing, and that the mother completely lacks insight into her daughter’s feelings.[32]
[32] Ibid, 74.
The father sought only to cross-examine the Family Consultant in relation to whether or not it was appropriate for the child to use FaceBook (which he submitted it was not at her age). The Family Consultant expressed the view that any use of FaceBook should be limited to supervised use until the child turned 13 years of age. The Family Consultant also gave a general warning against the possibilities of cyber-bullying that might arise from the use of FaceBook.
The Family Consultant concluded her evidence as follows:
[ICL]: Notwithstanding, you have concerns that unless the mother can become more in tune with the child’s needs emotionally, that ultimately ongoing contact with the mother may not be in her best interests to the extent that it is now?
[FAMILY CONSULTANT]: Well, the problem with children that live in ongoing - with ongoing conflict is that it becomes repeated in their own families, your Honour, and this is a difficulty that we see, so I think that the most important for the mother to understand and to accept, if she can, is to - is to try and see the situation for what it is now, your Honour, and where [the child] is now, in that [the child] – I know all of the past issues, and we’ve revisited some of it today, but as I said to the mother when she – the last time she came in, that we’re now looking at the present, and what can be done into the future, and that’s the best advice I can – I can suggest for the mother. I don’t – worst case scenario, I can’t imagine what would be the situation that might provoke it, but that [the child] becomes so tired of the – of the – of the conflict, and listening to both parents, that she walks away from both of them. But I can’t see that happening within the next couple of years, and I think if the parents are sensible, your Honour, and see the situation for what it is, it’s – this will be the start of a new beginning for [the child], in that she’s happy where she is, and she’s – she’s got everything going for her. She’s got friends at school, and I think that this is possible that – that this can – that this can work for [the child]. I wouldn’t like to think that the mother’s time has to be – or the father’s time – she needs both her parents. She loves both her parents.[33]
[33] Ibid, 77.
There was no aspect of the Family Consultant’s evidence which I found to be in conflict with my own observations and experiences of the parents although her experience and familiarity with them is more extensive than mine.
The Family Consultant was an insightful expert witness upon whose evidence I place considerable weight.
Discussion
In determining the best interests of the child, I am required to consider two primary considerations and several additional considerations, listed in
s 60CC of the Act.
The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Neither party contends that the other ought not have a meaningful relationship with the child. However, each undervalues the child’s relationship with the other parent and elevates their own parenting capacity and role in the child’s life above the other.
I am comfortably satisfied that there is a positive benefit to the child having a meaningful relationship with both parents.
The second of the primary considerations mirrors s 60B(b) of the Act and recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
This factor also requires a prospective evaluation. As such, I must assess the future risk of exposure to physical or psychological harm to the child and formulate orders which protect her from that harm. The greatest risk to the child’s emotional well being is the relentless conflict between her parents. I was very relieved to hear the Family Consultant’s evidence, which I accept, that the misery which she observed in the child in March 2010 had largely abated by August 2010. My impression is that this is a reprieve and positive steps must be taken to the greatest degree possible to insulate the child from parental conflict and the feeling that she is responsible for the happiness and wellbeing of her parents. I am satisfied that stemming the flow of applications to this Court would be an excellent start.
The father opposes any relaxation of the order that the child not be brought into contact with Mr S (a previous friend of the mother) or stay overnight with people other than the mother or other blood relative. The mother says that there is no need for the order. I find that nothing has changed since the order was imposed in 2007. Whilst the child should experience fully the mother’s life, her time with the mother should not be overly crowded with the mother’s friends and acquaintances.
The child is expressing a strong view to retain the status quo and, in particular, for there to be no further court cases between her parents. I am required to take the child’s views into account.[34] In R and R: Children’s Wishes (2000) FLC 93-000 at 87,072 Nicholson CJ, Finn and Guest JJ said:-
Ultimately it is a process of intuitive synthesis on the part of any trial Judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
[34] Section 60CC(3)(a).
The Family Consultant’s evidence, which I accept, and my own observations of the parties leads me to conclude that the child has a degree of maturity and a level of understanding of her predicament which is as developed, and may even exceed, that of either of her parents. I do not regard the child’s views as determinative. However, I am satisfied that they are soundly based and considered and reasonable and I accord them weight.
I have considered the nature of the child’s relationship with each of the parents.[35] My impression is that the child’s primary emotional attachment is still with the mother, but she relies almost totally on her father and step mother for stability and is very affectionately disposed to them. The parenting arrangements herein meet the child’s needs very well. I am satisfied that the parties have arrived at a spend time regime which appropriately accommodates the child’s desire for more time with the mother. Whilst the mother’s application remains for the child to live with her, there is no indication that a change of residence would benefit the child or that circumstances have altered sufficiently (or at all) since 2007 to warrant a re-examination now.
[35] Section 60CC(3)(b).
The dynamic between the parents is one of long standing hostility and conflict. The mother has no significant ability to facilitate a positive relationship between the child and the father and his wife. The father and his wife are better inclined to the mother than the mother is to them but their intolerance of the mother is clearly conveyed to the child and must be a source of sadness to her. It is obvious that the child has not been spared much of the negativity which each parent feels for the other. Indeed, my impression of the Family Consultant’s evidence as a whole, is that the child probably feels that she is the cause of her parents’ conflict. Notwithstanding, it appears that she is settled and coping very well with all other aspects of her life and tolerably well with the conflictual relationship between her parents. There is no indication that the current arrangements should be changed as drastically as the mother proposes or that to do so will result in any enhanced willingness or ability[36] on the part of the parents to promote a close and continuing relationship with the other. My impression is that the parents have managed to subjugate their mutual resentment to the point of being able to tolerate one another. Realistically, that is as good as it is likely to get for the child.
[36] Section 60CC(3)(c) and (i).
I accept the Family Consultant’s evidence that it would be destabilising and harmful to the child to permit the issue of where she should live to be re-opened.[37]
[37] Section 60CC(3)(d).
I am satisfied that each parent has the capacity to continue to provide for the child’s physical, emotional and intellectual needs to the extent that they now do.[38] I am also satisfied that the arrangements now in place represent the optimal balance between the child’s needs and respective capacities of the mother on the one hand and the father and step mother on the other.
[38] Section 60CC(3)(f).
There is no doubt in my mind that it is in the child’s best interests for there to be no further proceedings between her parents in relation to her day to day care.[39]
[39] Section 60CC(l).
I come to the conclusion that there has not been a sufficient change of circumstances as would warrant the redetermination of the child’s living arrangements. Indeed, I accept the evidence of the Family Consultant that a further hearing of these issues would likely destabilise the child’s school and personal life and be most detrimental.
Section 118 of the Family Law Act 1975 (Cth)
The father applied for the mother to be declared a vexatious litigant pursuant to s 118(1)(c) of the Act.
Section 118 relevantly provides:
Frivolous or vexatious proceedings
1. The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
a.dismiss the proceedings;
b.make such order as to costs as the court considers just; and
c.if the court considers appropriate, on the application of a party to the proceedings—order that the person who instituted the proceedings shall not, without leave of the court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
2. A court may discharge or vary an order made by that court under paragraph (1)(c).
The Full Court of the Family Court of Australia (May, Thackray & Benjamin JJ) in Oscar & Traynor,[40] considered the requirements of s 118 as follows:
[40] Oscar & Traynor [2008] FamCAFC 158.
93.Section 118 of the Act together with r 11.04 of the Family Law Rules 2004 grants the court power to dismiss an application of a party and restrict further applications being filed, unless with the court’s permission.
94.Although the court has the power to make such an order, it is a power that the authorities indicate must be used sparingly. As Kirby J said in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 at 31-32:
First, it is always important for every judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented.
Secondly, it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant. It is extremely rare in this court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the court’s jurisdiction.
95.The requirements for the exercise of the power contained in s 118 of the Act were recognised in DJC v SJS and Another (2005) 34 Fam LR 329 at 338:
It can be seen that, as a necessary condition precedent to making any order under s 118 or r 11.04 restraining a party from filing or continuing an application, it is necessary for the court first to determine that there are proceedings before it which are frivolous or vexatious, and to dismiss those proceedings before then making the order restraining the commencement of further proceedings.
96.In the matter of Kettle & Green (Unreported, Family Court of Australia, Warnick J, 2 April 2008) Warnick J made orders that the father be deemed vexatious and therefore not be able to institute proceedings in the future without the leave of the Court:
26.I do not find that Mr [Kettle] has frivolously brought these applications. He does not impress me as doing what he has done for the fun of it, or lightly, or that he is vexatious in the sense that he is simply trying to drag the mothers to Court at every opportunity.
27. However, I do think that he is vexatious in the sense that he is, or has been, misguided. He has carried a sense of being wronged about various decisions, some of which have been aired today, but his response has been a vexatious one. Rather than sit down and assess whether something in relation to which he thought he was hard done by really presented a current problem to him, it would seem that his first reaction has been to dash out a Court document, serve it, and bring the solicitor for the mothers to Court. Examples are: an application for a mandamus directed to his Honour, Bell J, to provide reasons; there were complaints about decisions as long ago as August 2007. In that sense the father, in my view, has brought proceedings that were vexatious and, in my view, it is appropriate that any applications that he may wish to bring in the future be subject to the scrutiny of a Judge of Court before they are allowed to proceed.
…
29.However, the first point Ms Ellis made was that the father has been largely unsuccessful. That is true. In my view, there was an element of recklessness in some of the claims he wished to pursue. Though he is not legally trained, he had not made any attempt to ascertain whether this Court had any jurisdiction to make the sorts of orders that he sought.
30.People who act for themselves, as they are fully entitled to do, must nonetheless make a reasonable attempt to put themselves in a position to properly conduct the proceedings that they bring. It is careless and reckless to bring people to Court to confront claims that are, in fact, nonsense.
Discussion
The child had good cause to complain to the Family Consultant that she could not recall a time when her parents were not involved in litigation about her. It is a three box file and the proceedings, variously numbered DGF572/2001, DGM 869/02, MLM 151 of 2005 and MLC 3009 of 2009, comprised about 155 documents, not including family consultant’s reports. With the exception of 2008 when only one document was filed, several substantive documents have been filed each year since the child was two years old.
I have regard to the proceedings which have been instituted since final orders were pronounced in 2007. The mother’s last application has been unsuccessful. It should never have been made. It was largely a platform for the mother to complain about the outcome in 2007 which was not the subject of any appeal and to vent her regret for not having seen the child, through her own choice, from October 2007 to May 2010. I am satisfied that the mother’s proceedings have been vexatious in the sense described by Warnick J in Kettle and Green (above). She should not bring anymore proceedings without leave.
The mother makes it clear that she would prefer a judge other than myself to hear any application for leave. It is not appropriate for me to disqualify myself. This is now a Registry of four or so judges. The mother may find herself waiting a considerable time to come before another judge and, thereby, be denied an opportunity to prosecute a claim she has. I conclude that it is best for me to specify that the application does not have to come to me. If another judge is reasonably available, it can go to that judge. Otherwise, I will hear it.
Time in which to appeal
It is appropriate that the time in which a notice of appeal against my decision of 8 September 2010 can be filed commence to run from the publication of these reasons. That is what the parties expect and what I stated would occur. The reasons will be sent electronically to each party so time in the post does not run against any party who wishes to appeal.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 18 February 2011.
Associate:
Date: 18 February 2011
ANNEXURE “A”
That all previous parenting orders be and are hereby discharged.
That [THE CHILD] born …1998 live with the father as from 10am on Sunday 12 August 2007 when he collect the child from the mother’s residence together with any personal belongings that the mother, in her discretion, agrees that [the child] can take with her.
That the father have sole parental responsibility for the child.
That [the child] spend time with her mother and communicate with her mother as follows:-
(a) For so long as the mother resides in Melbourne:
(i)Each alternate weekend during school terms from 6pm Friday to 6pm Sunday commencing on 17 August 2007 and then on the first weekend after the start of each school term;
(ii)Subject to subparagraph 4(c) hereof, from 6pm on the first Tuesday of the school term holiday to 6pm on the second Wednesday of the school term holiday;
(iii)in 2007/08 and each alternate year thereafter , for one half of the long summer vacation (excluding (4(a)(iv) below) as agreed and, failing agreement, from 6pm on the third Tuesday of that vacation to 6pm on the last Saturday before the start of the school year and, in 2008/09 and each alternate year thereafter, from 6pm on the first Saturday of the long summer school vacation to 6pm on the third Tuesday of that vacation;
(iv)From 3pm Christmas Eve to 3pm Christmas day in 2008 and each alternate year thereafter and from 3pm Christmas day to 6pm Boxing day in 2007 and each alternate year thereafter;
(v)By telephone each Wednesday at 6pm and each Sunday (when [the child] is not otherwise spending time with the mother) at 6pm when the father is responsible for having the child place a call to the mother telephone service as nominated by the mother in writing and in circumstances where she can speak privately and without distraction and for approximately 15 minutes;
(vi)On Mother’s Day (should it not fall on 4(a)(i) above) from 10am until 7pm and should Father’s Day fall on 4(a)(i) above [the child] shall be returned to the father at 10am on Father’s Day; and
(vii)As otherwise agreed in writing between the father and the mother;
(b)If the mother relocates to the [rural New South Wales town] area and notifies the father in writing of her address and telephone contact numbers:-
(i)For 11 days in each of the school term holiday, commencing on the first Saturday or Sunday or Monday at a time of day which ensures that [the child] can meet any flight arranged pursuant to this Order (or if the mother collects her, then from 10am on the first Saturday);
(ii)For one half of the long summer vacation as agreed and failing agreement from the third Tuesday of the vacation the last Saturday before the start of the school year in 2007/08 and each alternate year thereafter and from 6pm on the first Saturday of the vacation to 6pm on the third Tuesday of the vacation in 2008/09 and each alternate year thereafter;
(iii)By telephone as in 4(a)(v) above;
(iv)Whenever the mother visits Melbourne during school terms, for periods of 28 days or less, then upon 30 days written notice to the father, the mother be entitled to spend time with [the child] each weekend from 10am Saturday to 6pm Sunday;
(v)By cards, letters, e-mail and presents from time to time, addressed to [the child] at the father’s residential address; and
(vi)As otherwise agreed in writing between the mother and father.
(a)On the first occasion in which Easter falls within the first school term holidays, and on each such alternate Easter thereafter, the mother’s entitlement to spend time with [the child] be curtailed to the extent necessary for [child] to remain in the care of the father from the evening of Maundy (sic) Thursday to the morning after Easter Monday;
(b)Upon the father providing the mother with not less than 30 days written notice that he will be in or around the [far North Coast of New South Wales area] during the first half of a long summer school vacation period when [the child] is spending time with the mother in the [far North Coast of New South Wales area], the time to be spent be suspended and [the child] be made available for collection by the father from McDonald’s Family Restaurant in [G] at 6pm on Christmas Day and / or [the child’s] birthday and the father return [the child] to the mother at the same McDonald’s at 12 noon the following day.
That for the purpose of changeover of care:
(a)For 4(a) above, the changeover point be McDonald’s Family Restaurant at [W];
(b)In 4(b) above, the father do all things necessary to deliver [the child] at the start to the relevant airport in more than sufficient time for her to meet the flight arranged in accordance with this Order and the mother do all things necessary to return [the child] to the appropriate airport in more than sufficient time for her to meet the return flight arranged in accordance with this Order at the conclusion of her time with her;
(c)Where [the child] travels by plane, the parent collecting her at the conclusion of the journey notify the other parent immediately by telephone when [the child] has arrived safely
That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant and if at practicable that family consultant be Ms [B], to supervise compliance by the parties with the parenting order made this day (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of 2 years. This period of supervision be reportable, however no report be prepared unless a further application in relation to the child is filed whilst this order remains in force, the court orders that a report be prepared or the family consultant of his / her own volition thinks a report should be prepared.
That the costs of the airfares for 4(b) above be shared between the mother and father and the father be solely responsible for the purchase and booking of the flights for the third term/September and the first term/March school term holidays in each year and the mother being solely responsible for the purchase and booking of flights for the Christmas long summer school vacation and second term/July school holidays in each year, such flights to be secured, paid for and advised to the other parent in writing not less than 3 months prior to the first date for travel.
That the father and his servants and agents do all things necessary:
(a)To ensure [the child’s] bedroom contains a framed photograph being approximately 10 x 15cm of the mother (which shall be updated every 6 months upon the mother forwarding a new photograph);
(b)To provide [the child] with a current calendar of each year, from the commencement of each year, clearly marked with the days [the child] will spend with the mother; and
(c)To encourage [the child] to communicate with her mother through letters, cards and email from time to time and to reply to any such communication sent to her by the mother.
That the father forthwith authorise and direct the proper officer of all schools or educational programs attended, or to be attended, by [the child]:-
(a)to provide the mother with copies of school reports, newsletters and photographs (at the expense of the mother if any);
(b)to co-operate with requests of the mother to communicate with school staff about [the child] from time to time as if the mother’s entitlement to be informed and consulted about [the child’s] progress is equivalent to that of the father;
(c)to record the mother’s details clearly on [the child’s] personal file so that there can be no doubt that the mother is [the child’s] mother and [Mrs James] is [the child’s] step mother.
That the mother and father keep the other advised of their residential address and telephone numbers and forthwith keep the other advised of any changes thereto.
a) That the mother and father forthwith inform the other of any injury or illness suffered by [the child] and authorise the other to communicate with any treating professional whose name, address and contact details must be provided as soon as practicable after the injury or onset of the illness;
(b)That the mother and father forthwith inform the other any incident or accident which occurs in the presence of [the child] which involves unlawful violence or requires the attendance of the police or fire brigade or other emergency service including the name and contact details of the attending officers.
That the mother and the father their servants and agents be and are hereby restrained from denigrating the other or their partners within the presence of or the hearing of [the child].
That pursuant to section 65LA of the Family Law Act 1975, the mother shall within 7 working days from the date of this order make contact with Lifeworks Counselling & Education Services, 94 Gheringhap Street, Geelong, ( 03 5222 8957, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program. If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for mother, the mother shall attend that program or that part of the program and upon completion of such program provide a certificate of completion to the independent children’s lawyer who will send a copy of same who shall send a copy to the other parent and the supervising family consultant.
That pursuant to section 65LA of the Family Law Act 1975, the father shall within 7 working days from the date of this order make contact with Lifeworks Counselling & Education Services, Level 5, 227 Collins Street, Melbourne,
(03 9654 7360, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program. If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for father, the father shall attend that program or that part of the program and upon completion of such program provide a certificate of completion to the independent children’s lawyer who will send a copy of same who shall send a copy to the other parent and the supervising family consultant.
That the father do all acts and things necessary to ensure that [the child] attends the Gatehouse Centre at the Royal Children’s Hospital for the purpose of assessment and comply with all reasonable directions in respect of the assessment and then follow all reasonable recommendations arising from the assessment including, if so advised, for [the child] to undertake a course of therapy and IT IS REQUESTED that the supervising family consultant provide a referral for such assessment to take place and the supervising family consultant is, hereby, authorised to discuss the progress of the assessment or associated treatment with the providers of the service.
That the father shall provide the proper officer at the Gatehouse Centre with a copy of this Order and my reasons for judgment when making the arrangements pursuant to the preceding paragraph of this Order and provide to the mother and the supervising family consultant a copy of the assessment, promptly upon receipt.
That the unless within 28 days the father has received a firm commitment in writing from the proper officer of [the child’s] school that the school will arrange for a psychological and educational assessment of [the child] to be conducted and completed by the end of third term, the father forthwith do all acts and things necessary to have [the child] undergo such an assessment at a service provider nominated by the supervising family consultant and, in the absence of such nomination, from the relevant department of one of the following institutions:-
(a)Royal Children’s Hospital (being the section formally known as the Learning Disabilities Department);
(b)Catholic University;
(c)RMIT;
(d)La Trobe University –
and keep the supervising family consultant advised of progress in this regard and, when received, provide a copy of the report of the assessment to the supervising family consultant, the mother and the proper officer of the school attended by [the child].
That as soon as practicable the father do all acts and things necessary to ensure that [Mrs James] undertakes a refresher course in the Spalding method of teaching literacy as those techniques apply to parents assisting their own children at home, such refresher course to be undertaken after 1 September 2007, at a service provider approved of by the supervising family consultant including, but not limited to, […].
That the independent children’s lawyer provide a copy of this Order to the following persons:-
(a)The proper officer of [X] Primary School;
(b)The proper officer of [Y] Primary School together with a request that a time mutually convenient to the mother and the school be appointed for the mother and [the child] to attend and tour the school on 7, 8, 9 or 10 August 2007;
(c)Dr [M] together with a copy of my reasons for judgment;
(d)The proper officer of the Department of Human Services.
That the independent children’s lawyer and [the family consultant] meet with [the child] and explain to [the child] in words that can be understood by her the nature and effect of these Order and any other matters which [the family consultant], in her absolute discretion, considers may assist [the child] to accept this determination as positive for her mother as well as positive for her father and herself.
That as soon as practicable the independent children’s lawyer contact the proper officer of [X] Primary School and / or Ms [R] ([the child’s] teacher) and advise them that the week commencing 6 August 2007 will be [the child’s] last week at that school.
That each party cooperate with the other, by executing documents and providing consent and information, to facilitate any application by the other for a passport to issue for [the child].
That the party seeking a passport for [the child] be responsible for the cost of applying for the passport and, forthwith upon the passport being issued, send a photocopy of the page on which the photograph of [the child] appears to the other party and lodge the original passport to the Registry Manager of this Registry of the Court AND IT IS DIRECTED that the Registry Manager hold such passport safely pending further order of the Court.
That in the event that the parties cannot agree on appropriate arrangements for [the child] to travel overseas, as proposed by one of them, each party be at liberty to contact my Associate […] to arrange to have this matter listed for a preliminary telephone mention before me.
That the Order appointing the independent children’s lawyer be discharged upon compliance with paragraphs 19 and 20 of this Order.
That when [the child] is spending time with the mother during school term holidays or the long summer school vacation the mother cause [the child] to telephone the father in the same terms and conditions as apply under paragraph 4(a)(v) of this Order.
That any application for costs be made in writing and communicated to my Associate within 14 days.
That in the event that one of the parties files an application for parenting orders within the next 3 years, that application be listed before me, by arrangement with my Associate, […], if I am reasonably available.
That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Consent
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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