Cobb & Landry
[2023] FedCFamC2F 847
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cobb & Landry [2023] FedCFamC2F 847
File number: MLC 2205 of 2019 Judgment of: JUDGE BROWN Date of judgment: 11 July 2023 Catchwords: FAMILY LAW – Parenting – final orders made by consent in February 2020 – where the orders provide for the mother to resume time spending subject to conditions – application for summary dismissal pursuant to Rice & Asplund rule – whether the rule should be applied – whether there has been a significant change in circumstances – nature of interim hearing – bests interests of the children – matters to be considered Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 60I, 62G Cases cited: Baisman & Cartmill [2022] FedCFamC1A 36
Bennett & Bennett (1991) FLC 92-191
CDJ v VAJ (1998) FLC 92-828
Goode & Goode (2006) FLC 93-286
In the Marriage of McEnearney (1980) FLC 90-866
Jurchenko & Foster (2014) 51 Fam LR 588
King & Finneran (2001) FLC 93-079
Marsden v Winch (2009) 42 Fam LR 1
Mazorski v Albright (2007) 37 Fam LR 518
Moose & Moose (2008) FLC 93-375
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
Walter & Walter [2016] FamCAFC 56
Webster v Lampard (1993) 177 CLR 598
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 2 Family Law Number of paragraphs: 132 Date of hearing: 4 July 2023 Place: Adelaide Counsel for the Applicant: Ms Pangallo Solicitor for the Applicant: Pascale Legal Solicitor for the Respondent: Ms Danner, Swan Lawyers ORDERS
MLC 2205 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS COBB
Applicant
AND: MR LANDRY
Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
11 July 2023
THE COURT ORDERS THAT:
1.The Respondent’s application to dismiss the proceedings pursuant to the rule in Rice & Asplund is declined.
2.Pursuant to s 62G (3A) & (3B) of the Family Law Act 1975 (Cth), the parties and the children X born in 2015 and Y born in 2018 (the children) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
3.Part 1 of the event will occur by video, using Microsoft Teams, on 28 September 2023 with:
(a)the Applicant to attend at 9.00am;
(b)the Respondent to attend at 10.30am; and
(c)Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
4.Part 2 of the event will occur in person at the Adelaide Registry at 3 Angas Street, Adelaide at 9:00am on 29 September 2023. Specific details regarding the attendance of the parties and the children on this date will be provided to the parties in Part 1 of the event.
5.Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
6.The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
7.Not later than 4.00pm on 17 July 2023 the parties must provide their contact telephone numbers and email addresses to [email protected]
8.Pursuant to order 2 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the children;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the children.
9.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
10.Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the children and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to the Legal Services Commission of South Australia at [email protected] within 7 days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to meet with the said children such as to be in a position to make submissions to the Court on the adjourned date.
11.Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
12.Further consideration of the matter is adjourned to 13 October 2023 at 9:30am for directions NOTING the hearing will be conducted face to face at Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cobb & Landry has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
This is a difficult and complex case. In broad terms, it concerns whether the court should utilise its powers to prevent the applicant mother proceeding with a further parenting application, in circumstances in which a final parenting order was made in February of 2020.
From her perspective, if she is not able to proceed with her application, given that she has not directly interacted with the children concerned since April of 2022, it may mean that her relationship with the children will be permanently extinguished to their long term developmental and emotional detriment.
The father contends that it would not be in the best interests of the children concerned to allow such an application. Essentially, as I understand his case, he asserts that the mother represents an emotional and physical risk to the safety of the children concerned. The father asks that this issue be determined in the context of a truncated interim hearing, in which the court considers only affidavit material filed by each of the parties.
The mother contends that such an issue of fundamental importance to the children’s long term development should not be determined in the context of such an abridged hearing and in addition, at the current time, there is a paucity of professional independent evidence to allow a proper level of exploration of the issue. She seeks that, at the very least, the Court commission a Child Impact Report.
BACKGROUND
Ms Cobb ‘the mother’ and Mr Landry ‘the father’ are the parents of X born in 2015 and Y born in 2018. Ms Cobb has two children from an earlier relationship. They are Ms B born in 2005 and C born in 2007.
Ms Cobb and Mr Landry have never been married. They disagree about precisely when their relationship began. What is clear is that they lived together, in Town D, in Queensland. They also agree that the date of their final separation was in October 2017, when X was an infant and whilst the mother was pregnant with Y.
The Queensland Department for Child Safety became involved with the family in late 2015. The mother’s case is she suffered from severe post-natal depression. The father’s case is that she was severely alcohol dependent. There can be no doubt that the mother has had significant issues to do with alcohol in the past.
Ms Cobb moved to City E, in 2018, to attend a residential alcohol recovery program, but is reported to have relapsed shortly afterwards. Around this time, Ms B and C were placed in respite care with maternal relatives. In addition, at this stage, X and Y were in the care of the father, with the informal approval of the Department, pursuant to a safety plan.
In early 2019, the father moved from Queensland to City F, in Victoria, with X and Y. Thereafter, on 1 March 2019, he commenced proceedings in the Melbourne Registry of the Court seeking sole parental responsibility for X and Y and that the children live with him. At this stage, he had no proposals in respect of the mother spending time with the children.
The mother responded to this application on 9 May 2019 in which she sought the transfer of the proceedings to the Brisbane Registry of the Court. She was concerned that the children had moved such a significant distance away from her, without her prior approval. In these circumstances, on both an interim and final basis, she sought that the parties have equal shared parental responsibility for X and Y and the children live with her, in Queensland.
Like the father, so far as she was concerned, she had no concrete proposal for the children to spend time with their father, other than that it should be on terms agreed between the parties. It would appear to me to be the case that the parties, at this stage, had scant trust in one another. This appears to be the case up until the present time.
Axiomatically, at this early stage, the case was an extremely difficult and problematic one, raising significant child protection issues, within the context of what, at first blush, appears to have been a unilateral relocation situation.
In this context, it is, in my view, appropriate to outline the overarching principles, which the Court must apply to all cases concerning children arising under Part VII of the Family Law Act 1975.[1]They are contained in section 60B of the Act.
[1] Hereinafter referred to as “the Act”.
These, if you like, provide the philosophical underpinning of the Act, as it relates to decision-making so far as children are concerned. The Court is obliged to ensure that a child’s best interests are served by ensuring it considers various fundamental principles. I will provide each of them verbatim:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
What is interesting to note about these various principles and objectives is the fact that it is children who have rights under the legislation and parents who have obligations and duties. In particular, the court is directed to ensure that children receive the benefits, likely to accrue to them, of having a meaningful involvement with a parent.
This right must be viewed within the context of the child’s overall best interests, which consist of a number of specific considerations and factors. I will turn to these in more detail shortly, when I set out the specific legislative provisions and legal principles which apply.
Given the obvious difficulties, which the case presented, when it came into court for the first time, on 6 May 2019, an order was made for the children to be independently represented and the parties themselves were referred to what was then known as a Child Inclusive Child Dispute Conference. In addition, information was obtained from the Victorian Department of Health and Human Services, regarding any departmental concerns raised in respect of the two children.
The information presented by the Department indicated that serious child protection concerns had been raised regarding the risk of X and Y being exposed to physical harm and neglect as a consequence of the mother’s alcohol consumption. These concerns seem to have been serious and long standing. In addition, notifications had been made alleging that the father posed a risk to the children due to his prior lack of substantial involvement in providing care for the children and on the basis that he was involved in the sale and use of illicit drugs.
The Child Inclusive Conference Memorandum, prepared on 10 May 2019, reported as follows, in respect of the children’s interaction with their mother:
The children are young and were not formally interviewed. [X] was a bright little girl who easily settled into playroom with the other children. [Y] (sic) was an adorable baby, very placid who also easily settled into the playroom.
The mother spent time with the children in the playroom. There were no formal observations as such and the mother was able to spend 30 minutes or thereabout with the children. She seemed to focus her attentions on [Y] (sic) and consistent with her reports during interview that she missed him, she stayed in close proximity with him. [X] was observed to become upset upon her mother’s departure telling her she did not want her to go. [X] seemed easily distracted and settle quickly after her mother’s departure. The children happily went to their father and grandparents and left without distress.[2]
[2] See Child Inclusive Conference Memorandum dated 10 May 2019 at page 3.
Given the issues in the case, particularly the distance between where the parties were then living, it was difficult for the relevant family consultant to make any concrete recommendations in the case. It was evident that Ms Cobb was not able to travel regularly to Victoria due to financial constraints. In these circumstances, the Family Consultant wrote as follows:
This is a difficult matter. The children have a bond with the mother and the present circumstances makes this difficult to maintain. However, given the reports from the parents and the information form DHHS which appears to corroborate Child Safety QLD’s concerns, there have been a number of concerns about the children in the care of the mother. The children have been removed from her care. There seems the children need to remain in the father’s care with the support of the paternal family in the interim whilst further information can be gathered and further assessment can take place. The primary issues the parties may need to address immediately is how the children’s time with the mother can be facilitated. [3]
[3] See Child Inclusive Conference Memorandum dated 10 May 2019 at page 3.
On 10 May 2019 an order was made for the preparation of a Family Report, which was to be prepared in conjunction with the final hearing of the parties’ competing applications, which was scheduled for 20 February 2020. In addition, some orders were made, by consent, which envisaged the mother coming to Victoria, prior to the final hearing, in order to spend time with the children. Mr Landry agreed to contribute some money towards the costs of the mother’s airfare to facilitate these visits. The time was to be supervised by one of the mother’s relatives.
On 19 November 2019, the mother filed a further affidavit, in which she alleged that Mr Landry had again unilaterally relocated X and Y from Victoria to suburban Adelaide. She further alleged she had been unable to travel to Victoria, to interact with the children due to financial constraints, until October 2019.
The applicable Family Report was released to the parties on 20 January 2020. It indicated that the father had re-partnered with Ms G, who has two children from an earlier relationship, H and J. Mr Landry had moved to Adelaide to move in with Ms G at her home. At the time of the Report, Ms Cobb continued to live in City E.
The report writer, Ms K, attempted to facilitate some form of interactions between the mother and the children concerned. This was described in the following terms:
When [X] entered the reception area and saw [Ms Cobb], she ran to her, calling her [Ms Cobb], and gave her a cuddle. She seemed very excited to see [Ms Cobb].
However, once [X] realised that [Mr Landry] and [Ms G] had left, she refused to enter the observation room with [Ms Cobb], despite [Ms Cobb]’s best efforts to encourage and cajole her.
[Ms L] was asked to assist. With her encouragement, [X] entered the observation room with [Ms Cobb]. However, upon entering, she sat alone and initially refused to engage with [Ms Cobb].
With much encouragement, [X] then moved to sit with [Ms Cobb] and [Y] (sic) on the couch. She allowed [Ms Cobb] to read her a story.
At the end of the story, the children found some toys to play with. [X] appeared to be competing for [Ms Cobb]’s attention whenever [Ms Cobb] was focussed on [Y].
[Ms Cobb] then encouraged [X] to play with [Y]. [X] began throwing blocks around the room and singing very loudly. [Ms Cobb] did not appear to know how to address those behaviours.
[X] then let herself out of the room and refused to re-enter.
[Y] appeared to be happy to sit and interact with [Ms Cobb] throughout as well as engage in independent play.[4]
[4] See Family Report dated 20 January 2020 at [109] – [116].
Accordingly, the level of extreme difficulties, noted from the Child Inclusive Conference, had become more intense, with X being resistant to any degree of engagement with her mother. In addition, Mr Landry reported to Ms K his view that X appeared to be upset by the video calls, which had taken place with her mother. These themes continue to persist until the present time.
In these challenging circumstances, Ms K reported as follows:
The reality appears to be that [X]’s relationship with [Ms Cobb] has been severely impacted by her experiences to date, to the extent that she overtly objects to spending time with [Ms Cobb], even with the support of [Ms L]. This is not surprising given the understanding that [Ms Cobb]’s addiction progressively became worse from the time she fell pregnant with [X]. As such, [X]’s experience of [Ms Cobb] would have been that her mother was emotionally, and at times physically, unavailable, leaving [X] to feel unsafe during her early developmental years.[5]
[5] See Family Report dated 20 January 2020 at [126].
In addition, Ms K noted that Y appeared to be a more resilient, which she attributed to the fact that he had been removed from his mother’s care at a very young age. She also noted that Ms Cobb’s progress to sobriety was at an early stage and therefore the risk of relapse was significant, which warranted an ongoing process of supervision, in respect of any engagement envisaged between her and the children.
For obvious reasons, issues of the distance between the parties’ two places of residence continued to loom large. In this context, Ms M reported as follows:
[Ms Cobb] indicated that she would consider relocating to Adelaide if required and would make every effort to ensure she accessed appropriate supports, both professional and social, if she did so. It may be that the only way for her to re-establish a meaningful relationship with [X] and [Y] would be to do so.[6]
[6] See Family Report dated 20 January 2020 at [132].
On 20 February 2020, the parties were able to agree on final parenting arrangements for X and Y. The orders envisaged the following:
·The father have sole parental responsibility for X and Y;
·The children live with the father;
·The mother spend time with the children in the context of two scenarios:
·In the event she lived outside of Adelaide, on a monthly basis, for two hours, in a public area, subject to the supervision of the father or his nominee;
·In the event the mother lived in Adelaide, on a fortnightly basis, at a Children’s Contact Centre ‘CCS’.
·The mother communicate with the children electronically, on each Tuesday, for 15 minutes;
·The mother engage with a drug and alcohol rehabilitation service, if she relocated to Adelaide; and
·The parties and the children engage in a process of therapeutic counselling in order to promote the children’s relationship with their mother.
Significantly, the orders envisaged that when the mother had relocated to Adelaide and had spent time with the children for 9 consecutive months at a CCS and the mother had engaged in a process of therapeutic counselling and had successfully completed a course of rehabilitation (presumably in respect of drug and alcohol dependency) then the parties should attend:
Family dispute resolution and make a genuine effort to reach an agreement as to the progression of the children’s time with their mother.
Failing such agreement the orders envisaged that Ms Cobb would be able to make a further application to the Court to spend time with the children.
The current proceedings relate to the interpretation of these various orders within the construct of what lawyers frequently refer to as the rule in Rice & Asplund. It is the mother’s position that she has complied with the necessary preconditions, which the order envisages, prior to her being authorised to make a further application to spend time with X and Y, which she has done.
In this context, the mother recommenced proceedings, seeking to spend time with the children, on both an interim and final basis on 9 November 2022. On a final basis, she proposes alternate weekends, from 6:00pm Friday until 6:00pm Sunday; and, on an interim basis, on alternate Saturdays, from 1:00pm until 4:00pm. Significantly, prior to her proceedings being finalised, she seeks the preparation of a Family Report, pursuant to the provisions of section 62G of the Family Law Act 1975.
The father responded to this application on 21 February 2023. As previously indicated, he seeks the dismissal of the mother’s application on the basis it would not serve the best interests of either X or Y for the court to entertain a further application in respect of arrangements for their care.
Interestingly, on an interim basis, he proposes the parties obtain a report to investigate the children spending time with their mother and that an independent children’s lawyer be reappointed. It is apparent from the submission of his lawyer, Ms Danner, that he no longer supports the preparation of such a report.
On a final basis, he proposes only that the mother be able to send cards, letters and gifts to the children, on a monthly basis and that she be able to speak with the children’s respective teachers but not attend upon their schools. He has no concrete proposals, at this stage, for the children to physically interact with their mother.
EVENTS SINCE ORDERS OF FEBRUARY 2020
Following the final parenting order being made, issues still remain extant regarding the division of de facto property between the parties. These proceedings were transferred to the Adelaide Registry of the Court and later resolved in November of 2020.
It is Ms Cobb’s position that she relocated to Adelaide, following the orders of February 2020 and currently lives in rental accommodation, in Suburb N, with Ms B and C, who have been returned to her care.
Ms Cobb has not re-partnered. She has deposed that she works on a part-time basis, as an allied health worker. Significantly, she deposed, she had not consumed alcohol for a period of approximately two years and has become an active member of AA, attending meetings on a fortnightly basis.
It is common ground between the parties that between July 2020 and April 2021, as the orders of 20 February 2020 envisaged, the mother had 17 sessions of supervised contact, with the children, at the CCS at Suburb O.[7] The visits occurred fortnightly for one hour.
[7] See exhibit L-1 to the father’s affidavit filed 21 February 2023.
From the mother’s perspective, her regular attendance at the CCS axiomatically demonstrates her commitment to reinstating some form of relationship between her and the children. In addition, in my view, given the number of visits, it must be the case that children are aware of the existence of their mother.
In this context, by way of example, on 21 March 2021, the relevant supervisor at the CCS provided the following account of one period of the children’s time with their mother, over this nine month period:
3.15pm: [Ms Cobb] entered the playroom and exclaimed, "Where are they?" and acted surprised when the children jumped out. They all laughed and the children then took out some toys and sat on the floor and began to play. [Ms Cobb] divided her time between both children. [Ms Cobb] shared with the worker how [X] came second in her race at sports day. [Ms Cobb] then talked to the children about going to sports day and seeing [Y] in the pusher. She then said, "I am so happy to see you today. I love coming to see you," and smiled at the children who looked at her and smiled back.
3.45pm: [Ms Cobb] suggested they go outside and they moved to the mud kitchen. [Ms Cobb] gave [X] some sand and water to mix, who pretended it was a cafe and began to make [Ms Cobb] food. [Y] played independently riding on the cars and [Ms Cobb] divided her attention between them both. [X] called out to [Ms Cobb], "Come and get your latte," and [Y] called to [Ms Cobb] and said, "I want you." [Ms Cobb] promised to come back and continued to move between both children.
4pm: Outdoor play continued with [Ms Cobb] sharing her time between [X] in the mud kitchen and [Y] on the ride on cars. Conversation was focused on play and [Ms Cobb] also spoke about seeing the children at sports day. She also spoke about how she loved bringing things into do with the children and playing with them. Play outside continued until the end of the visit.
4.15pm: The supervisor announced the visit had finished and [X] said, "I don't want to go." [Ms Cobb] encouraged [Y] to give her a hug which he did. [Ms Cobb] reassured [X] she could play with the sand mixture next time. They all moved back into the playroom. [Ms Cobb] gave [Y] a balloon and she then hugged the children who then left with the supervisor. Visit ended.
In my assessment, the visit reported on this occasion was positive in nature. I appreciate that it is one visit, amongst many. Ms Cobb describes her time with the children as raising no issues, apart from one failed visit, which she attributes to the influence of Ms G. In this context, the report from the CCS indicates that the children declined to spend time with their mother, on one occasion only, which occurred on 7 February 2021. The relevant report includes the following summary of how Ms Cobb reacted to this situation:
When [Ms Cobb] was told by the supervisor that the children didn't want to stay, she broke down and began to cry. [Ms Cobb] spoke about the long hard road it had been to see her children and her determination to do the right thing. [Ms Cobb] said she thought [Mr Landry] and [Ms G] were not supporting her or encouraging the children to see her. [Ms Cobb] talked about the grief she feels not seeing her children and is determined to do whatever she needs to have them in her life [Ms Cobb] thanked the supervisor and worker and left.
It is evident that, following the conclusion of this extended period of supervised contact, the father had no concrete proposals to build on this base of time. Rather what happened was that Ms G arranged for a psychologist, Ms P to conduct the therapeutic counselling envisaged by the orders of February 2020.
This counselling was envisaged to occur as soon as practicable after the making of the orders. Evidently, in my view, this does not seem to have occurred. The process occurred between May and July 2021. In my view, Ms P’s involvement with the family and what she was directed to do is extremely blurred. Ultimately she produced a report entitled Summary Therapy Report dated 16 September 2021.
What is clear is that neither X nor Y were interviewed or observed by Ms P with their mother. Accordingly, Ms P relied only on what was told to her by the father and Ms G, in respect of assessing the children’s relationship with their mother and how the matter should progress. Ms P stated the purpose of her involvement in the following terms:
The father and his partner sought advice from the Therapist about how they could promote a positive and connected relationship between the mother, the subject children, and their half-siblings. They expressed concern regarding the current arrangement and dynamic regarding the subject children spending time with their mother and half-siblings as they had noticed behaviour in [X] which indicated that contact with the mother and the half siblings were traumatising to her. The father's partner described regressed behaviours in [X], prior and post, spending time with her mother. They described that [X] wets the bed and has nightmares which they believe is connected to her spending time with the mother.[8]
[8] See exhibit L-2 to the father’s affidavit filed 21 February 2023 at page 29.
Significantly, in my view, Ms P’s report does not entail any feedback from Ms Cobb regarding her perspective on this issue. Indeed, as the CCS report indicates, it was her perception that the father and Ms G were not supportive of her maintaining a relationship with the children. In this context, she has deposed to having had an encounter with X at her sports day, which she believed was positive.
In addition, Ms P provided no therapy to the children concerned – although she did recommend therapeutic life story work commence. Whether this has occurred is unclear to me. She further recommended as follows:
·The mother send weekly video messages;
·The monthly supervised contact resume with a supervisor other than the father or Ms G; and
·Ultimately this involve the children’s half siblings.
Ms G apparently told Ms P that it was her perception that the mother was not following through on these suggestions. In this context, Ms P reported as follows:
Unfortunately, the recommendations made by the Therapist were not followed by the mother. The mother conveyed to the Therapist that she was unable to follow through on the suggestions made during the Therapist's involvement. The mother indicated that her mental health was impacting on her capacity to implement the strategies necessary to repair and strengthen the relationship between her and her younger two children. As a result, the mother was wanting to meet with the father and his partner again to further discuss moving forward with her relationship with her children and develop different agreements which were more achievable for the mother. However, the father and his partner expressed concern about further committing to therapy given the lack of follow through by the mother. The father's partner was clear that the father and her (sic) needed to see consistency and effort by the mother, as without this, they were concerned about the impact sporadic contact will have on the subject children's psychological wellbeing. Furthermore, they expressed a lack of faith in the mother's ongoing commitment to the subject children given her lack of consistency and ability to follow through on the Therapist's recommendations.[9]
[9] See exhibit L-2 to the father’s affidavit filed 21 February 2023 at page 32.
I am concerned with factual assumptions on which this statement is based. Firstly and most obviously, it would appear to be the case that Ms Cobb had made a commitment to spending time with the children, as evident by her move to Adelaide and her consistency at the CCS. Secondly, it was the father, following the supervised time concluding in April of 2021, who had no proposals to facilitate the children’s relationship with their mother.
The major criticism Mr Landry has of Ms Cobb is that she did not sent the weekly video messages as recommended by Ms P. It is Ms Cobb’s perception that it was the father, rather than her, who was placing blocks in the way of her extending her relationship with the children. She deposes as follows:
From July 2021 to January 2022, I tried asking the father for family contact with the children, even by telephone, but my requests were denied. The father had stated that I would need to send video messages to the children as prerequisites for access to the children, as per recommendations of [Ms P]. The father did not facilitate any phone calls or video calls during this period.[10]
[10] See mother’s affidavit filed 2 June 2023 at [23].
As indicated above, the orders of February 2020 envisaged the parties engaging in a process of family dispute resolution at the conclusion of nine consecutive months of supervised visits and the mother having engaged in a process of therapeutic counselling. It would appear to be the father’s position that the necessary pre-condition for the FDR had not been met because of what he assessed as the mother’s lack of engagement with therapeutic counselling.
In any event, it was the mother who applied for legal aid to allow the parties to take part in a Family Dispute Resolution Conference, under the auspices of the Legal Services Commission, on 10 January 2022. Regrettably, from the mother’s perspective, this process took around six months.
On this occasion, the parties jointly acknowledged that they agreed that the mother would begin to spend time with the children, for two hours per month, with the time to be supervised by the paternal aunt. As I understand matters, this agreement was not formally memorialised by court order. I have, however, been provided with a copy of it.[11] It envisages that there only be three such visits and that the mother provide a report regarding her engagement with a drug and alcohol rehabilitation service. The parties were then referred to a further FDR Conference which was scheduled for 19 April 2022.
[11] See annexure L-1 to the father’s affidavit filed 17 April 2023.
The father reported X as happy to engage with her mother but with Y being more reserved during visits scheduled for February and March. Thereafter, things went awry in the context of X’s sports day, which the mother attended. It is the father’s position that X was traumatised by this occasion. However, no concerns were raised in respect of the April visit. A May visit did not occur – the mother being in Queensland for a family event; whilst the father’s work roster prevented a rescheduling.
It is the father’s position that thereafter the children refused to attend. It is common ground between the parties that the mother has had no physical interaction with either child since April of 2022. It is self-apparent that the father made no proposal whatsoever in this regard. He is critical of the mother for not sending any video messages and for the delay, on her part, in instituting proceedings.
The parties did attend the FDR scheduled for 19 April 2022. They agree they were unable to reach agreement on this occasion. The mother deposing that the presiding mediator had issued a certificate under section 60I of the Act, which presumably indicated that the parties had made a genuine attempt to resolve the dispute between. Ordinarily, the issue of such a certificate is a precursor to the institution of proceedings in court.
In all these circumstances, it is difficult, in my view, to quibble with the mother’s assertion that she had essentially complied with all the necessary preconditions set out in order 9(a) of the orders of February 2020 which applied before she should be at liberty to make application to the court in respect of her time with the children. Given the orders envisaged her spending some time with the children and she had ceased to do so, it is difficult to know what she could do other than invoke the assistance of the court, given the failure of the FDR process, which she had engaged not the father.
On the other hand, the father’s position is that he is solely motivated by his focus on the well-being of the children. On the basis of Ms P’s report, he asserts that the children have a need for consistency and predictability, in their engagement with their mother, otherwise there is the potential for them to be re-traumatised if their perception is that their mother has again abandoned them.
In this context, it appears to be his case that the mother has been sporadic in her approach to the children, particularly as demonstrated by the absence of video messages from her to them. It is his case that it is the failure of the mother to send such videos, which has resulted in the children not engaging with their mother. In this context, he seems to assert that he was not unwilling to facilitate monthly visits and the fault was on the mother’s part.[12] I confess I struggle with the logic of this statement.
[12] See father’s affidavit filed 21 June 2023 at [19].
The father further asserts that X was traumatised, when in the company of her paternal grandparents, she had a chance meeting with her mother at a shopping centre. He deposes that the child’s behaviour regressed and her night terrors resumed. Recently, X was diagnosed with global development delay and autism spectrum disorder. The import of the father’s case being that these conditions warrant the court being extremely cautious in re-engaging court proceedings, which include any expert assessment of the children.
THE HEARING ON 4 JULY 2023 & THE NATURE OF AN INTERIM HEARING
The case first came before a judicial registrar on 27 February 2023, who was informed the matter required a listing before a judge on the issue of Rice & Asplund. This led to the case being sent for a compliance and readiness hearing before Judge Cole on 1 May 2023. He fixed the case before me for an interim hearing in respect of the issue of Rice & Asplund only.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[13]
[13] See Goode & Goode (2006) FLC 93-286 at 80,901, [68].
By their nature, interim hearings, involve a determination on the papers filed, without cross-examination of the deponents. Very often, due to the urgency and crisis surrounding them, there is a dearth of expert evidence. Given these circumstances, it is not possible for the court to make findings in respect of contested facts.
In the current matter, there are many such controversies, which can be summarised as follows:
·Is Mr Landry capable of supporting a relationship between the mother and the children or is he intent on rupturing it for some reason unknown to the mother;
·What is the level of trauma, if any, currently suffered by X, in respect of her relationship with her mother;
·Do the children, following the supervised time at the CCS, have a viable relationship with their mother, or at least one which is capable of being reinstated;
·Has Ms Cobb recovered from her alcohol dependency and what is her current level of mental health functioning;
·Is Ms Cobb committed to having a relationship with the children; and
·What are the respective levels of insight which each of the parties display into the responsibilities of being a parent.
These issues must be determined within the legal matrix provided by Part VII of the Family Law Act. In my view, it is axiomatic that the cross-examination of the parties, along with an independent expert assessment of the children and the nature of their relationship with each of their parents is likely to be crucial in the resolution of these issues.
The parties disagree about the nature of the children’s relationship with their mother. It is Ms Cobb’s case that the CCS report demonstrates that X and Y have a viable relationship with her. She disputes that X is traumatised to the degree asserted by Mr Landry. In this context, she asserts that Ms P’s report does not throw any great degree of light on the issue but a Family Report may well do and it is premature to halt her application in its absence.
The fundamental question for the court, at this stage, given the nature of Mr Landry’s application, being whether it can be demonstrated to be in the children’s overall best interests to either defer or postpone these inquiries until some later stage. Necessarily, this must mean that the possibility of the children resuming some form of relationship being held in abeyance until the father determines otherwise. Clearly, it is the mother’s position that this would not be beneficial to the children.
LEGAL PRINCIPLES RELATING TO PARENTING PROCEEDINGS
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration.[14]
[14] Family Law Act 1975 (Cth) s 60CA.
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are 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.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration. Future protective issues for a child are the court’s priority.
It is the father’s case, as best I can understand it, that the re-opening of the proceedings, has the potential to re-traumatise the children, who have previously had experience of being abandoned and neglected by their mother. On the other hand, the mother approaches the case from the likely benefits X and Y will derive from having a meaningful level of relationship with her.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[15] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[15] See Mazorski v Albright (2007) 37 Fam LR 518 at 526 [26].
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual. However, as the Full Court has also noted:
[H]aving a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.[16]
[16] See Jurchenko & Foster (2014) 51 Fam LR 588, 618 [123] (Bryant CJ, Thackray and Duncanson JJ).
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (b);(d);(f);(i); and (l); of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The nature of the child’s relationship with parents and significant other persons, including grandparents (and in a case like the current one – half siblings);
·The effects of any change in the children’s circumstances;
·The capacity of parents to provide for the child’s emotional and intellectual needs;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned; and
·The outcome least likely to lead to the institution of further proceedings.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
THE RULE IN RICE & ASPLUND
The rule in Rice & Asplund is an expression of the paramountcy principle. Is the litigation envisaged in the best interests of the children concerned or should it be ceased. In this context, it needs to be emphasised that there is no hard and fast rule as to when the rule should be applied. It can be applied at either an interim stage or after all the relevant evidence has been canvassed.
However, for obvious reasons, it may defeat the efficacy of the rule, in its protective aspect, if it is applied after all the evidence has been gathered and assessed. The rule arises in circumstances in which the court has, either with the consent of the parties or on its own motion determined the final arrangements for the parenting of children.
In the current matter, there was such a final order, made on 20 February 2020. It was final in the sense that the case concerned had not been adjourned until another date. However, in my view, it cannot be said that the order did not envisage further proceedings. Clearly it did, provided certain things occurred.
I can understand why the order was expressed in the manner in which it was. The children concerned were of tender years; the parents themselves lived in different states of Australia at the time; questions remained regarding the viability of the mother’s recovery. The orders envisaged some form of revisitation after these issues had had an opportunity to play out.
As the best interests of the children concerned is the paramount consideration in all parenting matters,[17] a final order is never final, in the sense that it cannot ever be subject to revision. The court must always retain a jurisdiction to deal with any change of circumstances, which has the potential to impinge upon the best interests of the child affected.
[17] See Family Law Act 1975 (Cth) s 60CA.
In this sense, a parenting order is never final as the court always retains jurisdiction to deal with changed circumstances to ensure the advancement of the best interest of the child who was the subject of its order. However, some degree of change is a necessary corollary of life and should not of itself allow final parenting orders to be easily revisited. Otherwise, to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.[18]
[18] Rice & Asplund (1979) FLC 90-725.
The primary purpose of the rule in Rice & Asplund is to prevent endless litigation[19] and is based on three main pillars. Firstly, finality of litigation avoids expense to the public occasioned by subsequent hearings and the imposition of them on court time.[20]
[19] See Rice & Asplund (1979) FLC 90-725 per Evatt CJ at 78,905.
[20] See SPS & PLS [2008] FamCAFC 16 at [56].
Secondly, the imposition of the rule avoids the potential evil of one judicial officer substituting his or her opinion of what is in the best interests of a child for that of another judicial officer, on the basis of the same factual circumstances.[21]
[21] See SPS & PLS [2008] FamCAFC 16 at [58].
Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led. The rule negates this potential outcome.
Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. Litigation is not helpful to children.
It is desirable that arrangements for their care be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[22]
[22] See CDJ v VAJ (1998) FLC 92-828 at 85,449.
In this context, it has been said that the court should not condone a perennial football match between parents, who … seek to canvass again and again the question of custody of a child …[23]The litigation, in this case, has been protracted, expensive and time consuming.
[23] See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS [2008] FamCAFC 16 per Warnick J at [57].
It is clear from authority that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances, to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[24]
[24] See Bennett & Bennett (1991) FLC 92-191 at 78,262.
However, as Warnick J pointed out in SPS v PLS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage. If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.[25]
[25] See SPS & PLS [2008] FamCAFC 16 at [59]-[60].
Given that the court will often be called upon to apply the principle expressed in Rice & Asplund at a preliminary stage, without any full exploration of the parties’ concerned evidence, care must be taken with its application at such a stage. It is not a rule which is to be applied formulaically.
Rather, the court must examine the evidence available and determine whether, at its highest and without determining its veracity, such evidence demonstrates a sufficient change of circumstance to justify the court embarking upon a full and exhaustive hearing.
Justice Warnick put it as follows:
[W]hen the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination ‘on the merits’. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.[26]
[26] See SPS & PLS [2008] FamCAFC 16 at [81].
It will frequently be the case that there is much controversy between the parties concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings. This issue must be determined within the matrix of Part VII of the Family Law Act 1975.
The question essentially being whether it is likely to be in the children’s best interests to allow further litigation. In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation.
In arriving at its decision, the court must look to the following matters:
·the importance or seriousness of the issues raised, both individually and where necessary collectively;
·the impact that the issues are likely to have on the best interests of the children concerned;
·whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.[27]
[27] See Marsden v Winch (2009) 42 Fam LR 1.
The test is a strong one. The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties.
That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made. That would be putting the test too strongly. Rather, the change of circumstances must be such that there is a real likelihood of a change.[28]
[28] See King & Finneran (2001) FLC 93-079 at 88,368.
In SPS it was said that the essential question for the court to pose itself concerned the sufficiency of the new events, which were said to precipitate the need for a new inquiry. In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps, which might follow from them.
In Walter & Walter[29] the court in its discussion of this issue noted with approval the reasons of the Full Court in Marsden & Winch:[30]
Nevertheless, there are significant changes that occur 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.
[29] See Walter & Walter [2016] FamCAFC 56 at [49].
[30] See Marsden & Winch (2009) 42 Fam LR 1 at 19, [50].
Further, May, Ainslie-Wallace & Murphy JJ went on to say:
Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.[31]
[31] See Walter & Walter [2016] FamCAFC 56 at [51].
In Baisman & Cartmill[32] Tree J listed the various factors, attributable to various Full Court of the Family Court germane to the rule. He considered that nonetheless the rule itself remained somewhat opaque in its application. What I take from this list, as having particular reference to the current matter, are the following factors:
·If the rule is applied prior to trial, it is analogous to an application for summary dismissal. As such, in the absence of cross-examination, the evidence of the parties concerned must be taken at its highest.
·It is relevant whether the earlier order whose inviolacy is invoked was made by consent or at the end of trial. Essentially, the stage at which the relevant final order was made is relevant. If findings of fact were made by the court, logically, this must be a relevant consideration.
·The rule remains one based on merit and is not technical in its application.
[32] See Baisman & Cartmill [2022] FedCFamC1A 36 at [11].
In the context of applications for summary judgment, in my view, the applicable authorities are clear that it is a power to be invoked sparingly and cautiously given the significant consequence of depriving a person of their entitlement to seek a remedy from the court. In Webster v Lampard,[33] the High Court said as follows:
The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.[34]
[33] See Webster v Lampard (1993) 177 CLR 598.
[34] See Webster v Lampard (1993) 177 CLR 598, 602 (Mason CJ, Deane and Dawson JJ).
However, I also acknowledge that the best interests of X and Y remain the court’s paramount concern. Their interests supplant those of Mr Landry and Ms Cobb. It is the consideration of their rights to be safe from harm balanced against their rights to have meaningful parental relations which are at the centre of this matter.
DISCUSSION
Regrettably, it is my impression that Mr Landry and those advising him have fundamentally misconstrued the application of the rule to the circumstances pertaining in the current matter. The rule has sought to be invoked on a technical basis rather than by reference to the merits of the case and its overall circumstances.
Namely, the rule has been engaged solely on the basis that a final order has been made and therefore it has currency, without any serious consideration of the nature of that previous order; the circumstances in which it was made; and the principles contained in Part VII of the Act.
It cannot be the case that once there has been a final order made that the rule must be automatically invoked as a preliminary issue for the court. In my view, such an approach is antithetical to the real intention of the rule as it adds rather than detracts to its efficacy.
Essentially, if the rule is so automatically invoked, it adds to the burden of litigation and its costs for the parties concerned rather than reducing them. It also may detract from the service of a child’s best interests by placing an unnecessary hurdle in the way of inevitable litigation – undesirable though any such litigation may be in general terms.
In my view, it is incumbent on any litigant seeking to invoke the rule that he or she closely considers its application to the circumstances of their case, rather than invoking it automatically, in some form of knee jerk reaction or as a means of delaying or deterring proceedings.
The first matter which must be examined is the context in which the orders of 20 February 2020 were made. Although they must be described as being final orders, in the sense that they contained no further specific court event, in my view, they have a provisional quality about them. Indeed, this provisional quality was inevitable because they were posited on the basis of the occurrence of future events, the most significant of which was the mother moving from Queensland to South Australia.
In addition, the orders envisaged a defined period of supervised time between the mother and children occurring in the eventuality of her moving to South Australia. The relevant authorities are clear that CCS are not intended or funded to provide supervision of a parent’s relationship with a child for an indefinite period of time in anything other than exceptional circumstances. Part of their rationale is to provide a safe framework for parent/child contact, until the parents concerned are able to move to self-management of their parenting arrangements.[35]
[35] See Children’s Contact Services: Guiding Principle Framework for Good Practice published by the Australian Government Attorney-Generals’ Department and Moose & Moose (2008) FLC 93-375 at [119] – [120].
In this context, order 9 of the orders envisaged a next step which envisaged some further process, potentially involving the court, in respect of parenting arrangements for X and Y. The process also envisaged the potential for the parties to reach their own accommodation with one another through a process of family dispute resolution, during which it was anticipated that the children would continue to spend time with the mother. In these circumstances, she contends that it is the father, rather than she, who has failed to follow the spirit of the order.
The parties disagree about whether they complied with the strict terms of order 9 and, if they did not, who of them was at fault. This is an issue which cannot be determined definitively in the context of these interim proceedings. It is however the mother’s position that she did engage with Ms P, as much as she was able to do and has successfully completed her alcohol rehabilitation. Equally significantly she asserts that it was she, rather than the father, who took the steps to engage the FDR and, for her part, she tried to resolve issues between her and Mr Landry.
In these circumstances, it is her position that she was authorised by the orders of 20 February 2020 to bring a further application and, in practical terms, had no realistic alternative. I agree with this submission. Given that she has not had any direct involvement with the children for a significant period of time and Mr Landry had advanced no proposals in this regard, she was compelled to seek the assistance of the court in order to spend time with the children, which after all, was what was envisaged by the relevant orders.
I acknowledge, once again, that the best interests of X and Y remain the court’s paramount consideration. Necessarily, acrimonious court proceedings are not helpful for any child. However, the proper regulation of any free and open society requires that there be an independent and rational process of resolution of disputes arising between citizens, who in this case are separated parents. That is not to say such a system, though necessary, is helpful to children. Rather:
[W]hat is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests.[36]
[36] See Zahawi & Rayne [2016] FamCAFC 90 at [47].
Clearly, on the basis of what Ms P reported, in conjunction with his evidence regarding X’s anxiety, in particular, about interacting with her mother, it is Mr Landry’s position that the proceedings should be ceased as they have the potential to cause the children emotional trauma or be some form of systems abuse.
Necessarily, this issue is bitterly contested between the parties. Again, in the absence of further evidence, in my view, I am not in a position to resolve it in the context of these interim proceedings. In addition, I note that the father’s position is not necessarily congruent with the evidence provided by the CCS report or what the mother says about her own interactions with the children. In my view, the most obvious way for the court to throw some evidentiary light on this controversy is to commission a Family Report as proposed by the mother and which was also a course initially advocated by the father himself.
I acknowledge the potential for such an interaction to be distressing for the children concerned. Regrettably that is an incident of many cases, which come before the court, regarding contested parenting arrangements, in high conflict families. However, in my view, these concerns, valid though they are, cannot ordinarily become the pretext for the court to avoid its fundamental responsibility to ensure the best outcome for the children who are the subject of the parental dispute.
In this context, in its application of the rule, the court must examine the gravamen of the issues which are in dispute, from the perspective of the children’s best interests. In the present matter, in my view, it is hard to conceive of a more central issue germane to the children’s best interests given the contents of section 60B and section 60CC of the Act.
If the mother’s case is not allowed to proceed, in the absence of any proposal from the father, it is likely to be the case that the children will be deprived of the prospect of having any relationship, with their mother, let alone a meaningful one, for a significant period of time. In my view, in the overall circumstances of this case, this cannot be considered to be in their best interests.
If the case proceeds, it does not seem to me to be improbable that the court will ultimately make some form of order which will result in the mother spending some time with the children, at least on a provisional or experimental basis. Given the ages of the children, a complete severance of maternal relationship would be an extreme outcome.
In addition, in my view, much has changed since the orders of 20 February 2020. The children’s half siblings Ms B and C were returned to her care (I appreciate Ms B has returned to Queensland). The mother has employment. She lives in Adelaide. It is at least arguable that the nature of her relationship with the children has changed, as a consequence of the CCS process. Finally, Ms Cobb would assert that she has changed her life to a significant degree.
For these reasons, the father’s application for summary dismissal of the mother’s case pursuant to the rule in Rice & Asplund must be dismissed. I will order that a Child Impact Report be prepared. This is a quicker process than a family report and, given the circumstances expedition is required.
In addition, I will order that the children concerned be independently represented again, noting that this was the father’s initial position. In my view, such a course is justified given the entrenched conflict between the parties and the presence of the possibility that the children will not have a relationship with one of their parents.
I will adjourn the case until 13 October 2023.In the meantime, whether Ms Cobb wishes to bring an application in a proceeding to spend time with the children and what conditions should attach to such time is an issue for her and those advising her.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 11 July 2023
9
0