Colombo & Richardson
[2021] FCCA 789
•17 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Colombo & Richardson [2021] FCCA 789
File number: MLC 12837 of 2018 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 March 2021 Catchwords: FAMILY LAW – Interim parenting – Rice & Asplund – rule 16.05 application – where children live with grandmother – where final orders were previously made in the absence of the mother – where mother seeking to reopen litigation – where mother seeking for previous orders to be set aside – where grandmother seeking for mother’s application to be dismissed – application permitted. Legislation: Family Law Act 1975 (Cth)
Federal Circuit Court Rules 2001 (Cth) r 16.05
Cases cited: Ballan & Sandford [2018] FCCA 2436
Rice & Asplund [1978] FamCAFC 128
Number of paragraphs: 68 Date of last submissions: 17 March 2021 Date of hearing: 15 and 17 March 2021 Place: Melbourne Counsel for the Applicant: Ms B Kildea Solicitor for the Applicant: Faram Ritchie Davies Counsel for the First Respondent: Mr P Testart Solicitor for the First Respondent: Morrison & Sawers The Second Respondent: Appeared In Person Counsel for the Independent Children's Lawyer: Ms M McNamee Solicitor for the Independent Children's Lawyer: Medson Legal Pty Ltd ORDERS
MLC 12837 of 2018 BETWEEN: MS COLOMBO
Applicant
AND: MS RICHARDSON
First Respondent
MR WEST
Second Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 MARCH 2021
THE COURT ORDERS THAT:
1.Pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 the Applicant Mother be permitted to proceed with her application.
2.The First Respondent Grandmother's application pursuant to Rice & Asplund seeking to dismiss the Applicant Mother's application be dismissed.
3.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 18 March 2021 at 11.00am for Mention Hearing.
AND THE COURT NOTES THAT:
A.Pursuant to ss.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 are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 under the pseudonym Colombo & Richardson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
INTRODUCTION
On 17 March 2021 I delivered ex tempore reasons in this matter and these are the settled reasons. At the time of delivering the ex tempore reasons I had another interim matter listed that day that required determination and that limited the time I could spend on this matter. I said in the ex tempore reasons that I would add in the settled reasons the specifics of the legislation and the authorities to which I referred. These are the settled reasons but the substance is unchanged. The ex tempore reasons referred to assertions in affidavits and these reasons cite what was alleged in the affidavits. The hearing was on the papers no party sought to cross examine any other and was by video link.
I indicated at the commencement of the ex tempore reasons that I would permit the mother to bring the application on both the rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) basis and on the Rice & Asplund [1978] FamCAFC 128 (‘Rice & Asplund’) application. These are the settled reasons I delivered on the day of the hearing.
BACKGROUND
The applicant mother, Ms Colombo (‘the Mother’), is aged 28, and the second respondent father, Mr Richardson (‘the Father’), is 31. The Father and the Mother have three children: X, aged 10; Y, aged 8; and Z, aged 6 (‘the children’). The first respondent is Ms Richardson (‘the Maternal Grandmother’). The Maternal Grandmother is the mother of Ms Colombo, and she is aged 45. The Maternal Grandmother has other children: Mr F, who is aged 18, G, aged 11, and H, who is aged 10. The Father has re-partnered with Ms E, and Ms E has some other children, and, significantly, as I understand it, her youngest, J, is aged 9.
The proceedings come before me in the context of there being final orders having been made in the Federal Circuit Court of Australia at Shepparton on 25 February 2019, and the Mother brings an initiating application filed on or around 9 October 2020.
The surrounding circumstances of how those orders come to be made should be repeated. The Mother and the Father had separated at some time in 2018, although the degree of separation is difficult to identify. On the Father's account, that is, Mr West’s account, though the parties had separated, the Mother continued to seek his assistance for obtaining or injecting drugs at that time. The Maternal Grandmother in her affidavit commencing what I will call the first wave of these proceedings, filed 7 October 2018 at paragraph 8, as follows:
[8]Ms Colombo and Mr West’s relationship was of an off-and-on-again nature. The relationship was characterised by family violence and drug use. Both Ms Colombo and Mr West were perpetrators of the family violence.
At paragraph [11] of that affidavit, the Maternal Grandmother it was said that the Mother, has significant mental health issues that have not been diagnosed or treated. The Mother was cared for by her father as a child, and I accept that she was physically, sexually, and emotionally abused by her father.
[11]I believe that Ms Colombo has significant mental health issues that have not been diagnosed or treated. Ms Colombo was cared for by her father as a child. I believe that she was physically, sexually and emotionally abused by her father. My belief arose when Ms Colombo was approximately 3 years old. She exhibited some sexualised behaviours, and I took her to see my General Practitioner. He told me that he was concerned that she had been abused. The next day her Father took her back to the GP and told her to tell the GP that I had poked her vagina with a stick. I deny that I poked Ms Colombo in the vagina and I became concerned that he was asking Ms Colombo to lie in order to hide that he was abusing her. Approximately four years ago Ms Colombo connected with services at L Centre in Town C. The counsellor at l Centre thought Ms Colombo was possible suffering from Post Traumatic Stress Disorder. She referred Ms Colombo to a psychiatrist, however Ms Colombo did not attend.
An incident that occurred on 14 September 2018 at the home of the parents. The Maternal Grandmother sets out her understanding of that incident, which was that the Father was out the front of the house with a knife in his hand stabbing at the house. The police were called and arrested the Father. She went on to say at paragraph 30 that at that time, the Father was then homeless, and that she has seen him wandering around Town C. She said that he often has a knife in his hands or chain wrapped around his knuckles and he seemed to be highly affected by drugs.
She says that at that time that she was aware that the Father still visits the family home on a regular basis to supply the Mother with drugs. What is clear, because we have the benefit of the police file, is that on 14 September 2018, there was a significant and very violent incident between the Mother and the Father and I set out the police report of that incident on 14 September 2018 (page 23 and 24 of 157 of the 8 December 2020 Victoria Police subpoenaed documents):
Page 23/157BACKGROUND: The AFM and the RESP were in a domestic relationship for approximately 10 years prior to separating in July 2018. The AFM and the RESP continued to live together, whilst separated until approximately 2 weeks prior to this incident. The AFM and the RESP have three children together, ages 10, 6 and 2. The RESP no longer resides with the AFM. The AFM and the RESP have one recorded family violence incident prior to the current incident, however, police believe the AFM has failed to report multiple incidents to police.
CURRENT INCIDENT: Children present. On 14/09/2018 the RESP attended the AFM’s address to collect some property. Whilst in attendance the AFM and RESP engaged in a verbal argument about the separation. The RESP blamed the AFM for the separation. The argument became heated causing the AFM and RESP to yell at one another. The RESP became aggressive towards the AFM and proceed to stand in close proximity and yell in her face. The…
Page 24/157…argument lead to the front door where the RESP grabbed the AFM in an aggressive bear hug before pushing her into the fly wire door, causing her to fall and land on her back on the porch. Whilst on the ground the RESP leant down next to the AFM and continued to yell verbal abuse in the AFM’s face. The RESP has then placed the AFM’s throat and proceeded to squeeze. The AFM was unable to speak and had difficulty breathing. The RESP has also grabbed the AFM’s hair and pulled out a large fist size portion. A passer-by also witnessed the incident and heard the RESP threaten to stab the AFM. The witness dialled 000 and reported the incident. Police arrived and observed hair on the front porch, bruising to the AFM’s throat. The AFM was limping and crying. A knife was also located on the RESP. Police believe a FVSN in necessary to protect the safety AFM’s and their property.
It is safe to say it is the incident whereby the Mother was observed to be limping and crying, and that a knife was located on the Father. The police had been called by an independent by passer who witnessed the incident, and the police found hair, and I infer of the Mother at the scene.
The Father's account of that incident is significantly different, but it is clear that he accepts that there was a very significant and violent incident, and at paragraph 21 of his affidavit filed 16 March 2021 he said:
[21]In September 2018 Ms Colombo and I got into an argument because I refused to inject her with morphine, She was yelling and screaming at me, threatening me, insulting me, and pushing me in front of the children I ended up loosing my temper and started to scream back at her when someone walked past and witnessed the argument and rang the police. An Intervention order was placed and on the 20/09/2018 the order was granted for 2 years. Ms Colombo applied for an extension of order on 17/09/2020 and was granted. Annexed hereto and marked as “A” are true copies of Ms Colombo’s intervention order.
I find that that violent incident was one of the events that led the Mother intending to have the children in the care of the Maternal Grandmother for a short period. It is the Maternal Grandmother's case that it was agreed that she would see the children for a visit and that the Maternal Grandmother set out at paragraph 33 her account of those events:
[33]Ms Colombo contacted me on Saturday 15 September 2018 and asked if the children could come over to my house. She said that she could not cope with them on her own now that Mr West was gone. This is the first time that Ms Colombo has ever left the children in my care and I promptly agreed. The children have now stayed with me for the two weeks of the school holidays. They are due to go back to their Mother on Sunday 7 October 2018.
This is the day after the violent assault or violent incident described at pages 23 and 24 of 157 (of the 8 December 2020 Victoria Police subpoenaed documents). I find this was the first time that the Mother had ever left the children in her mother’s care, and her mother promptly agreed to her request.
At that time, the Maternal Grandmother was, in her words, “currently on a suboxone program due to a past opioid addiction.” At first blush, it is unusual that the Mother and the Maternal Grandmother's relationship is such that that would be the first time that the children would be in the Grandmother's care. The circumstances from the Mother's account as to how that came about, set out in her affidavit of October. It is common ground that the Maternal Grandmother's partner at that time of the Mother’s childhood, the Mother's father, was violent. What is at issue between the Mother and the Maternal Grandmother in that very sad history boils down to whether or not the likelihood that the Mother was sexually abused as a child occurred when she was in the care of the Mother or in the care of the Father. It does not appear disputed that in circumstances of the Maternal Grandmother's then drug addiction and criminal lifestyle, she being sentenced to three months jail at one point, that the Mother as a child came to live with her father. It is then not disputed that that childhood of the Mother in her father's care was where the Mother was subjected to violence and to such an extent that the mother ran away when in year 9. She ran away to the Maternal Grandmother's home.
What is there in dispute is the level of care and drug addiction of the Maternal Grandmother when caring for the Mother as a teenager. It is not long after that that the Mother and Father’s first child, X, is born. That background partly and likely explains why it was, as the Maternal Grandmother sets out, that it is September 2018 that the children are first with the Maternal Grandmother.
What is common ground, then, is that the Maternal Grandmother did not return the children to the Mother, and, being concerned about their welfare, issued proceedings in the Magistrates Court at Shepparton. The Magistrates Court proceedings at Shepparton were served on the Mother at 4.40pm on 8 October 2018 and were returnable in Court on 9 October 2018. The 9 October 2018 orders were made in the absence of the Mother and the Father, and it appears that the Father had not been served at all, whereas the Mother had been served the evening before. But the point that the Maternal Grandmother's counsel presses is that she was served and she did not attend. Those orders are made on an undefended basis and leave was granted to proceed ex parte. On the evidence that was before the Court, being the Maternal Grandmother's affidavit of 5 October 2018, those orders seem not only to be appropriate but inevitable on that day. The proceedings were adjourned to 16 October 2018.
On 16 October 2018, both the Mother and the Father attended Court. Consent orders were made. Those consent orders provided for the children to continue to live with the Maternal Grandmother and for the Father and the Mother to have most limited time with them. On that day, 16 October 2018, the Mother was not legally represented, and appeared in person. The time that the Mother and the Father were to have was supervised telephone calls each Monday, between 5.30pm and 6pm, and also that the Mother was to deliver the children's belongings to the Town C police station on 20 October 2018.
The Mother complains that she did not get a chance to speak, as I understand it, on this occasion. However, the Court record records her as consenting. However, what is significant from the issue of the point of view of procedural fairness to the Mother is that order number 3 on 16 October 2018 was that the matter be transferred to the Federal Circuit Court of Australia, sitting at Shepparton on 12 November 2018. From document C2, we know that on 23 October 2018, the Magistrates Court file was forwarded to the Federal Circuit Court of Australia, and, noting that the Federal Circuit Court is sitting at Shepparton on 12 November 2018.
On 7 November 2018, it is clear that the Registrar of the Court determined that the matter would not be listed in the November circuit, but in fact listed in the February circuit commencing on Monday 25 February 2019, and that a letter was sent to the Maternal Grandmother's solicitors, being the applicant in those proceedings, advising her and those lawyers of that. There is no evidence nor any suggestion before me that in fact the Mother was informed of the listing of the matter being in February. I might add there is no evidence that the Mother attended in November.
The orders that were made in the Magistrates Court then continued. On or about 22 February 2019, this is the Friday before the Monday being the first day of the next circuit sitting, the Maternal Grandmother prepared a further affidavit, effectively updating circumstances from the previous affidavit, and an amended application. Those documents, according to the affidavit of service, were served on the Mother at 5pm personally by a process server on the Friday before the Monday. In addition to that, I find that a letter was provided to the Mother that set out as follows:
Your family law matter is next listed for hearing on 25 February on 2019 at the Federal Circuit Court sitting at Shepparton. We note that you have not yet filed any responding material in relation to this matter. Our client will seek orders pursuant to the enclosed amending initiating application. If you do not attend the Court hearing, these orders may be made in your absence.
I note here, and I find, that in fact the Federal Circuit Court of Australia and all of the staff are usually concerned about procedural fairness to parties. I also find that experienced practitioners acting in this jurisdiction are also concerned about procedural fairness. The letter to which I have referred, which is page 15 of 15 attached to the submissions of Mr Testart, is not required to be served by the rules, but is an example of the inclination of lawyers practicing in this area, as guided by comments from the bench from time to time, to provide procedural fairness to parties, and they should be commended for that practice.
Ms Kildea, counsel for the Mother makes the point that that letter, which refers to the amended initiating application and the affidavit of the Maternal Grandmother, does not alert the Mother, were she to have read the document, that undefended final orders may be made on the Monday in her absence, and it is the submission of the Independent Children's Lawyer that that letter, if read by the Mother, would not put her on high alert that final orders would be made on Monday.
In submission to me, and I treat it as the equivalent of sworn evidence, given that this hearing is over Microsoft Teams, assisted by his partner Ms E, the Father told me that his recollection of that hearing was that the Mother had requested his assistance to get to Court on the Monday morning, but that she had slept in. His understanding is the reason the Mother did not attend was because she slept in.
The amended application has the next court date as 24 February 2019 and the updating affidavit has the next Court date as 25 February 2019.
When the letter is looked at in conjunction with those documents, it is clear that the solicitors for the Maternal Grandmother had attempted to put the Mother on notice of the amending documents and the circumstance that the matter was listed for hearing the following Monday. Notwithstanding that attempt to provide procedural fairness, however it is looked at, and even if what could be read into the letter was the possibility of final orders being made as sought by the Maternal Grandmother on that following Monday morning, it is very short notice, and ordinarily, the Federal Circuit Court of Australia would not make final orders in the absence of a party upon notice that short. Mr Testart says that I need not look at the fine detail of the circumstances surrounding those events, but I need to look at the proceedings as a whole; that is, commencing in October 2018 until February 2019.
Those proceedings indicate that with notice of about a week and a bit, the Mother did attend Court on 16 October 2018, and Court orders were made on 9 October 2018, 16 October 2018, and she did not attend in February 2019 when final orders were made. Other events need to be looked at in terms of two matters: the explanation for the absence by the Mother, and the failure of the Mother to engage in the proceedings either as a litigant in person or to retain lawyers. It is clear that in 2019 the Mother's life was in chaos at that time.
Pages 22 and 23 of 76 of the 9 December 2020 Victoria Police subpoenaed documents, being the police file show as follows:
Page 22/76a current final intervention order exists for the AFM against the perpetrator. The order prohibits him from being in contact or remaining within 10 meters of the AFM. The AFM had been evicted from her house in Town C and it is alleged on 07/02/19, she stole a motor car from her neighbours address. Leap incident ... refers. The motor car was recovered on 9/2/19 at Town M. Evidence in the car lead to the arrest of the AFM on 13/02/19 and she was interviewed for the theft of the motor car. In the DVD interview the AFM admitted she had been in the stolen car with her ex-partner, being the perpetrator and this was because she had asked him to move some of her property with her in the stolen car. The AFM refused to make a written statement to the fact the perpetrator was with her, placing him in breach of the intervention order protecting her and a breach of a condition of his bail. Prescribed medication being a methadone bottle was also found in the stolen car and this belonged to the perpetrator. The perpetrator was arrested and interviewed on 17/02/19 on DVD and made a no comment record of interview. He was questioned in relation to the theft of the motor car, along with breaching the final FV intervention order and condition of his bail, which was to abide by the FV final intervention order and not be in contact with the AFM. He was released pending summons for the two
Sub-incident's for this report. On 24/02/19, the owner of the N Caravan Park where the AFM and perpetrator are now residing in separate…
Page 23/76…caravans, made a witness statement confirming the AFM and perpetrator had been together between 7/2/19 and 8/2/19 in the same caravan at her park. The AFM was again contacted on 26/02/19 and requested to provide a written statement. She stated she wished to think about this overnight and will be again contacted on 27/02/19 in an attempt to get this statement. The AFM has stated she is not in any fear of the perpetrator and is now having no contact with him and intends to apply for a variation of the final intervention order, taken out by police, so she can have contact with the perpetrator being the father of her children. These children currently being in the care of a family member as arranged by the family court. This report was approved for lodgement to leap by ... on 26/02/2019 by ... , Mr O and requires the following follow up actions to be addressed …
Offender processed - Mr West.
This indicates that on 7 February 2019, this is days before the final hearing on 25 February 2019 that according to the police, the Mother stole a car from her neighbour's address that she was in the company of the Father, and that the effect is that the car was being used to relocate the Mother's residence from the address on the Magistrates Court documents to the caravan park, and that the Mother and the Father were observed together in the same caravan park, albeit that they had separate caravans in the caravan park. The Mother was arrested in regard to those matters and bailed on 17 February 2019, which is days before she was served with the documents. Mr Testart's point is that the Mother cannot explain her absence from Court on 25 February 2019 in the sense that the explanation is that she was, with a life in chaos, likely consuming drugs and committing crime.
However, what is overwhelmingly clear is that from 14 September 2018, if not before that, up until the morning of 25 February 2019, the Mother's life was in chaos. Charged with stealing a car, relocating her home, and back in the company of the man who on her account had wreaked a serious incident of family violence against her, or on his account there has been a mutual violent and ugly interaction, and on the Father's account, continuing to use drugs and insist that the Father assist her use those drugs. In my view, those circumstances must be looked at as part and parcel of the Mother's explanation as to why she failed to attend on 25 February 2019.
Her account in her affidavit is that she was distressed and depressed by the circumstances of her own mother retaining the children and making the allegations that were made in the Court documents, and she was unable to deal with the circumstances. The Maternal Grandmother has, as I have set out, set out her view that the Mother's life of chaos was not simply drugs and crime, but was drugs, crime, untreated mental health issues, and possible post-traumatic stress disorder in the context of suffering a violent childhood.
THE RULE 16.05 ISSUE
The law in regard to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) is pretty short, and I repeat the rule:
Setting aside or varying judgments or orders
(1)The Court or a Registrar may vary or set aside a judgment or order before it has been entered.
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the judgment or order; or
(h)there is an error arising in the judgment or order from an accidental slip or omission.
(3)This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.
Helpfully, I have been referred to the decision of Ballan & Sandford [2018] FCCA 2436 (‘Ballan & Sandford’). What is significant from Ballan & Sandford, a decision of then Judge Altobelli, now Justice Altobelli is, following lengthy proceedings, including the preparation of a family report where the mother had failed to attend Court on three occasions in 2016 and then in 2018 on three or four occasions. However, she did attend for a family report and the matter was set down for final hearing with significant notice to the mother of that final hearing.
In that case, Judge Altobelli set out three underlying principles that need to be looked at in terms of rule 16.05(2)(a). The first is the explanation for the absence. It is not a sufficient explanation to say that the Mother was involved in drugs and crime and hence could not get to Court. Litigants do not get a free kick because they are involved in drugs and crime. Nonetheless, I am, in my view, am compelled to look at the actual circumstances of that litigant at that point in time. What I must look at in terms of the three principles that can be extracted from Ballan& Sandford is:
(a)a reasonable explanation for the absence;
(b)secondly, being able to point to material that might reasonably lead to an order different from that sought to be set aside; and
(c)lastly, the issue of prejudice to the respondent.
In terms of the explanation for delay, the circumstance is that the Mother has been, for almost all her life, the victim of family violence. What is unclear or controversial is the extent to which she also wreaked family violence upon the Father while it was being wreaked upon her.
What is then clear is that at the time of these orders that the Mother had not attended for any therapy or treatment to deal with the inevitable consequence and impact upon her of the violence that she had suffered in her childhood. The explanation for her absence on that day, I think, can be gleaned by the simple recitation of the facts that I have set out. It is true that all the Mother had to do on the Monday morning was pick up the telephone and attempt to telephone the Court or the Maternal Grandmother's solicitor, and that she did not do that. I am unable to find whether she slept in or not. Ordinarily the first return in the Federal Circuit Court of a children's welfare matter when the Mother had not been ordered to file material, albeit she was required by the rules of Court to file it, and had not filed material would not be undefended final orders.
In my view, those matters are significant, and it cannot be said that the Mother was, in the unfortunate circumstances that she found herself in, accorded the usual level of procedural fairness that litigants in the Federal Circuit Court would be accorded. In saying that, in my view, the letter to which I have referred indicates the Maternal Grandmother's solicitor going beyond what was strictly required by the rules, by procedural fairness, and nothing that I have said should be seen as a criticism of either the Maternal Grandmother's solicitor or the Court on the return of the matter. I also note that on the evidence before the Court, orders leaving the children living with the Maternal Grandmother in the circumstances of the chaos of the Mother's life at that time would make those orders sensible ones to be made.
However, at this point I must consider the second aspect of the test, that is, material available that would indicate a different order. What we now have is by reason of the Mother's activity, we now have a hair follicle test that shows the Mother has been clean of drugs, save for essentially methadone, for a period of three months. We have the short report of Dr P and of Dr Q. On the face of those documents, the Mother is using methadone in accordance with her prescription, or as prescribed and directed by her doctors.
Dr P, at page 12 of 33 (of the Mother’s affidavit filed 1 March 2021), sets out the Mother's prescription of methadone. Dr Q at page 13 of 33 (of that same affidavit) sets out that the Mother has been on methadone medication since 2019 for chronic pain in the knees. She has reduced her dose regularly and always presents to the clinic sober and very alert. Mr Testart and his client, in his submissions, are deeply sceptical about the assertion that methadone is prescribed for chronic pain in the knees. I am unable to make a finding one way or the other, however, I have never heard before of methadone being prescribed for pain in the knees. However, that does not mean that it has not been in this case.
In addition to that, we now have the circumstance where, on the Mother's case, she is involving herself with mental health services, and in particular I refer to the fact that the Mother in January 2021 completed a B Counsellors “Supporting Parents After Separation” course.
The December affidavit annexed to the letter of 5 November 2020, which indicates that the Mother has been attending R Families and was referred to S Counsellors, and she has, as at November, attended four of eight sessions.
Now, there is a matching letter from R Families. So as at 2 September 2020, it is clear that the Mother has engaged with R Families for support after experiencing family violence. That material, in my view, is material that satisfies the second test of Ballan & Sandford: that is, paragraph [48], material arguments available to her in addition to the other material that is in her affidavit as to her childhood.
Now, then the issue is the prejudice to the Maternal Grandmother of the circumstances. Mr Testart's point is that the Maternal Grandmother is a model litigant, and I certainly do not find contrary to that. The prejudice to the Maternal Grandmother of these proceedings being reopened is the prejudice intrinsic in the reopening of proceedings, and that is substantial prejudice; but there is not additional prejudice of the lack of availability of a witness, the loss of recollection of events. Matters that would prejudice the actual litigation are not present or asserted in this case.
For all of those reasons, I determine that the Mother should be permitted to revisit the matter pursuant to rule 16.05.
The further relevant event that must be taken into account is that about a year after the final orders were made, and just before I do that, I just want to return to the rule 16.05 reasons in terms of those three principles that I addressed. There is a fourth principle that, in my view, needs to be addressed when considering a rule 16.05 application, and that is the delay in bringing a further application; that is, it cannot be appropriate that a party would sit on the orders that were made when they were not present, test out whether it suited them or not, and then later on down the track, when it does not suit them anymore, bring an application saying, “I wasn't there and here is my explanation,” and otherwise fulfilling the three tests of Ballan & Sandford.
THE RICE & ASPLUND ISSUE
In this case, it is not disputed that in September 2019 the Mother engaged with lawyers and the first thing the lawyers did was seek to obtain a copy of the order of 25 February 2019. There is no evidence that in fact the Mother was served with or that those orders were brought to her attention any time soon after 25 February 2019, but it is clear that in September 2019, she engages solicitors and engages the Maternal Grandmother's solicitors.
A copy of the orders was obtained. An attempt to have mediation was made but was refused to the Mother as not a suitable matter for mediation. I expect in the circumstances of the prevalence of family violence in the case. It is clear that the Mother agitated the matter from about September onwards. Ultimately, then, these proceedings are brought in October 2020.
However, the whole of the matter must be looked at, and the point is that the Mother was agitating seeking a change to those orders from 2019.
Independent of that, although relying upon the same underlying facts, is the issue of Rice & Asplund. It was only necessary that I deal with Rice & Asplund in the event that the rule 16.05 application was not successful. In terms of the law relating to Rice & Asplund, I adopt and will repeat substantially the submissions helpfully filed with me of Mr Testart, which are a useful summary of the principles of what is known as Rice & Asplund, paragraph [7] is recited below:
[7]The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material… These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
The long and the short of it is, to warrant children's' proceedings being revisited once final orders were made, and my reasons here are on the basis of if I am wrong about rule 16.05 and that the Mother is not permitted to revisit by rule 16.05 and would be only permitted to revisit as a new application, the long and the short of it is that there must be evidence of a substantial change in circumstances such as would warrant the revisiting of this matter, and the circumstance that it is not only in society's interests that litigation be finalised but in the children's interests is a clear and very proper principle.
The circumstances that warrant the change here are that following the orders of 25 February 2019, the Mother or the Father or between them have ended the toxic relationship that was between them. That is a significant change.
In addition, one of the matters relied upon was the Mother's different position as to drugs. There is some difficulty about that, because on the Mother's sworn account she is not a drug user, yet it is quite clear or clear enough that everyone else says the Mother had a problem with drugs.
What we now have, as opposed to the evidence before the Court in February 2019, is that the Mother has been abstinent of illicit drugs for a period of three months, and that the drug that has been detected in her system is methadone, which, on the evidence, she has prescribed and is using in accordance with that prescription.
The other significant matter is at the time of the February orders, the Mother's accommodation was in chaos. She has deposed that she now has stable and what I will call ordinary rented accommodation.
Further the issue of the Mother's mental health was, to adopt the words of Ms Kildea, central to the Maternal Grandmother's case as it was commenced and as it was pursued in February of 2019. What is significant is that it appears for the first time the Mother has sought the assistance of mental health counselling to deal, hopefully, with not only any intrinsic mental health issues, but the inevitable consequences of being a victim of family violence.
The other matter that is, in my view, a significant change of circumstance is that the orders of 25 February 2019 contemplated a continuation of supervised time as agreed between the Maternal Grandmother and the Mother. As at this point of time, that is simply impossible for that to occur.
Tragically, a very significant event occurred on 17 February 2020. On Ms E and the Father's account and the Maternal Grandmother's account, the Mother and her new partner, Mr D, attended firstly the Maternal Grandmother's premises, where they and these are my words, attacked the house and tried to get in. The children were present, including the Maternal Grandmother's other children, and the events described, if true, must have been truly terrifying and indeed could even be described as terrorising that household. On the Maternal Grandmother's account, those events ceased when the Mother and Mr D then travelled to the home of the Father and Ms E, whereby Ms E and her son, then 8, as far as I can work out but very young in any event, was subjected to, on Ms E's account, a horrific attack where Ms E was attacked by Mr E and the Mother. The Father's account, is that Mr D attacked him with a knife; fortunately, on the Father's account, he was armed with a knife again, and that Mr D was unable to stab the Father.
However, it would appear that there was a violent, armed with knives, confrontation between the two men instigated by Mr D on the Father's account.
While this is happening, Ms E, on her account, is being subjected to a violent attack from the Mother, who is armed with what is described as a crowbar, which is I understand it to be the shorter weapon known as a jimmy bar, whereby Ms E is struck by that, at times when Ms E is concerned to protect her son from witnessing this terrible assault.
On Ms E's account, Mr D, having left the attempt to injure the Father, has then returned to the fray between the Mother and Ms E where Mr D strikes Ms E (whilst armed with a knife) with such force that she is knocked to the ground and likely breaks her nose. Ms E is concerned that the trauma of that incident caused her to miscarry, as she may have been pregnant at that time.
Notwithstanding that event in February 2020, when the proceedings came on before me, the Mother and the Maternal Grandmother were represented by a solicitor and counsel, and the Father was unrepresented. To the credit of all concerned orders were made by consent that there be supervised contact for the Mother at the B Contact Centre, Town C service, and that the Mother undertake a hair follicle test, amongst other orders.
I should add it is the Father's case that he and the Maternal Grandmother are able to sort out his time, supervised time by agreement, and he does not seek other orders.
At this stage, what is significant is the time that was ordered at B Contact Centre did in fact occur. Those orders contained the notation that the Maternal Grandmother had consented to those orders without prejudice to the orders she seeks in her response of 4 December 2020, that the Mother's application should be dismissed as it does not meet the threshold test pursuant to the principles in Rice & Asplund.
I do not propose to and will not rely upon the circumstances that the parties agreed to there being a B Contact Centre supervised contact order as itself being sufficient to overcome the Rice & Asplund test. Mr Testart has urged me not to go behind the negotiations or the legal advice that may have been given or that arose from those orders, and I do not think it is proper that I do so. It is to the credit of the parties and the lawyers involved that they were able to reach limited agreement on that day.
However, it is now common ground that following those orders the B Contact Centre supervised contact event occurred and that the Independent Children’s Lawyer's position is it went reasonably well. Following that event there was all sorts of trouble, and there is now competing allegations as to who stalked who and who threatened who immediately following that event. I am unable to determine who is right there, but it is clear that there is unlikely to be any further agreed facility of supervised time in the context of those February 2020 alleged events, which the Mother denies, and the continuation of allegations of intimidating and violent behaviour following that event.
However, that breakdown and the circumstance where there will not be time in the future for these children unless I make an order or unless the Maternal Grandmother is able to be persuaded of a sufficient change in the Mother's behaviour is of itself, in my view, a sufficient change that needs to be taken into account in the Rice & Asplund application.
So for all those reasons, my order will be that:
(1)Pursuant to rule 16.05, the Mother be and is permitted to continue her application seeking orders relating to the children's welfare.
(2)The further order will be that the Maternal Grandmother's application in relation to Rice & Asplund and the mother should not be permitted to continue with the application she has made will be dismissed.
That then leaves me left with the issue of what orders should be made in the future. I could not deal with that matter immediately. There was then a further existing B Contact Centre appointment that had been made.
I indicted that, if it was controversial, I would hear further written submissions as to why that should not occur. I said that I would expect the parties and their lawyers to sort out whether that should occur. That is: what is going to occur from this coming Sunday?
I indicated that if not agreed, I would deal with that the following morning on short written submission. I add that when talking about the events of 17 February 2019 that it appears undisputed that the police were so concerned about the welfare of the children and the Maternal Grandmother following that February attack or alleged attack that the Maternal Grandmother's home was relocated by the police, and that was a home that the Maternal Grandmother had lived in for 14 years. So I am alert to Maternal Grandmother's case, the trauma that she has gone through. There are so many people surrounded or involved in that incident that I am unable to make findings on this interim hearing, but it should not be thought that I find that it did not occur.
That is a matter that I would take into account. Nonetheless, my preliminary inclination is that the supervised time at B Contact Centre should continue, but I have not given the parties an opportunity to make submissions about that following my ruling that the case can continue, and so I will hear from the parties tomorrow.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 21 April 2021