Donald and Mott
[2016] FCCA 103
•21 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DONALD & MOTT | [2016] FCCA 103 |
| Catchwords: FAMILY LAW – Further interim parenting issues – determination of Rice & Asplund principle – questions of fact and degree in Mother’s Application which is essentially to re-contest all issues (including schooling) that were the subject of final orders in September 2014 – warning at the trial by the family consultant of the risk to child of on-going parental conflict – accuracy of consultant’s warning with child’s behaviour becoming more problematic and the failure of both parties to take proper steps to end the parental conflict. |
| Legislation: Family Law Act 1975, s.65D(2) |
| Carriel v Lendrum (2015) 53 Fam LR 157 Rice & Asplund (1979) FLC ¶90-725 SPS & PLS (2008) 217 FLR 164; (2008) 39 Fam LR 295; (2008) FLC ¶93-363 |
| Applicant: | MS DONALD |
| Respondent: | MR MOTT |
| File Number: | CAC 644 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 15 September 2015 |
| Date of Last Submission: | 18 September 2015 |
| Delivered at: | Canberra |
| Oral reasons delivered on: | 19 November 2015 |
| Written reasons provided on: | 21 January 2016 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms J Heinze; Mr Phillipson |
| Solicitors for the Applicant: | Infinity Legal, Canberra |
| Solicitor/Advocate for the Respondent: | Ms J Lloyd |
| Solicitors for the Respondent: | Jeanine Lloyd & Associates, Canberra |
ORDERS
The Orders of this Court dated 26 September 2014 shall remain in force, subject only to the following amendments/variations.
The shared care arrangement shall commence on the second weekend in December 2015 (unless a different commencement date within the next month is agreed between the parties in writing).
Changeover shall be at the child’s school, and during school holidays, at a public place, agreed in writing, between the parties. It is suggested, although not ordered, that changeover be conducted by a third party, at least for the next 12 months.
Upon the commencement of the shared care arrangement the Father is to continue to undertake a psychiatric assessment four (4) times per year and after each such review to provide the Mother and the head of the Family Consultants at the Court with a copy of that assessment. This regime of assessment is to continue until X is 12 years of age.
If mental health issues arise between those regular psychiatric reviews, the Father is immediately to contact the treating psychiatrist to be assessed and to provide the Mother with the results of that assessment.
If the treating psychiatrist confirms that the Father is experiencing mental health issues that would affect his parenting then,
(a)The child should remain living with the Mother;
(b)The child spend time with the Father regularly monitored by a supervisor agreed in writing between the parties, and if no agreement, as nominated by the former Independent Children’s Lawyer, every alternate weekend from after school Friday until before school Monday, or part thereof, depending on the availability of a supervisor;
(c)At all other times as agreed in writing by both parties.
By consent, the Mother will advise the Father of any medical practitioners attended upon by the child and authorise any such medical practitioner to discuss with the Father any issues regarding the health of the child.
By consent, the Father and Mother will keep the other advised of their current address and telephone number and advise of any change to these details within three (3) days of such a change.
Order 6 shall remain in effect until such time as the Father is able to provide a psychiatric assessment to the Mother and the head of the Family Consultants at the Court confirming there to be no mental health issues that would affect his parenting. Once this has been provided then the child’s contact with the Father should immediately return to a week-about arrangement.
The Application, filed 12 May 2015, be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Donald & Mott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 644 of 2012
| MS DONALD |
Applicant
And
| MR MOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
Two observations might be made at the outset.
First, quite some years ago now, in Cullen, Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[1]
There are few greater evils in family law than recurring litigation about custody and access. It is detrimental to the child, particularly so if he is old enough to appreciate that his parents are in legal conflict. It saps the mental, emotional and financial resources of the parties. It taxes the resources of the court and of the community.
[1] In the Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.
Similar comments have, of course, been regularly made by the Full Court many times since, not least in the context of parents seeking to re-litigate parenting matters where final orders have been made – on which more later. Nonetheless, they bear repeating even at this early juncture.
In a somewhat similar vein, Strauss J (again as part of a Full Court, this time comprising Fogarty & Bell JJ – Fogarty J agreeing [at p.296] with Strauss J) in Freeman, said (at Fam LR pp.297 – 298) (emphasis added):[2]
The welfare of the children is, in this case, as in others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential pre-requisite to their well-being. Another important reasons for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
[2] In the Marriage of Freeman (1986) 11 Fam LR 293; (1987) FLC ¶91-857.
Secondly, rather more recently, in Swain v Waverley Municipal Council, Gleeson CJ said, at [2] (emphasis added):[3]
In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance.
[3] Swain v Waverley Municipal Council (2005) 220 CLR 517.
The comments by the Chief Justice are also reflected in many similar remarks by the Full Court – and others.
On 19th November 2015, I delivered detailed oral reasons and made orders that dismissed the Mother’s Initiating Application that was filed on 12th May 2015. The Mother’s Application was filed some eight months or thereabouts after final orders were made at the conclusion of a somewhat arduous hearing that took place for two days in October 2013, and a further day in March 2014. Reasons were provided and final orders made in September 2014.
What follows are the reasons given on 19th November, revised from the transcript, which support the orders dismissing the Mother’s Initiating Application. The necessity for written reasons arises out of an appeal, filed by the Mother, on 8th December 2015.
As just remarked, at the time of the filing of the Mother’s Application in May this year the final orders of this Court had been in place only since late September the previous year, approximately eight months. This does not augur well for the future, I respectfully suggest. As indicated many times during the long and painful trial – painful for everyone, I suggest – and not a few occasions since, unless there is significant change on the part of both parties I fear that the Court will be seeing much of X’s parents for many years to come, and all of this would be to the child’s detriment.
In my view, most unfortunately, little has changed since the trial and the detailed reasons and orders of September 2014. Respectfully, and I regret the bluntness of my comments, the Mother remains hypervigilant and almost frantically if not obsessively anxious about the well-being of the child the subject of the proceedings – 8½ year old X. Such a description was apposite at the time of the trial. On the basis of the materials filed more recently, the description remains apt.
Likewise, as he was at the trial, the Father remains, it would seem, impetuous, often strong willed in his own assessment of his state of mental well-being, and sometimes imprudent in his actions. As it was in late 2014, so it is in 2015.
These are parents whose world-views, personalities and parenting styles are completely and almost dangerously opposite. It is not just a question of parenting style. It all goes much deeper, which I endeavoured to set out in some detail in the judgment of 175 paragraphs in September 2014.
All the while, to his great detriment, X is caught in the middle of this maelstrom of emotion, anxiety and conflict. Strictly speaking, in my view, this is a matter where the principles of, or rule in, Rice & Asplund apply.[4] Very unfortunately, and very surprisingly, the Mother’s submissions never mention any of these principles. The Father’s submissions do address them.
[4] Rice & Asplund (1979) FLC ¶90-725.
In short, the Mother’s Application, filed 12th May 2015, should be dismissed for two reasons: (a) she seeks to re-litigate issues that were raised and determined on a final basis only a matter of months previously. Accordingly, the principles articulated in Rice & Asplund (and explored and considered in many later Full Court decisions) stand in the way of the Mother’s Application; and (b) the Mother’s submissions never address the principles in Rice & Asplund.
In more detail, for the reasons that follow, the Mother’s attempt to re-litigate the same issues that were before the Court in 2013 and 2014, should not be permitted to be re-litigated again so soon after the final orders of September 2014. I do not doubt the Mother’s anxiety, and her deep and abiding desire, as she sees it, to protect her son. Nor do I doubt the Father’s head-strong and sometimes brash approach to life, which includes (and at times impacts directly on) his energetic son, X. However, accepting that it is a question of degree and perhaps of perception, in my view, the same issues that the Mother seeks to put before the Court pursuant to her May 2015 Application are, in substance, if not the same, certainly very similar to those that were the subject of final determination by the Court in September 2014.
The Full Court has made plain that it is an important function of the Court to ensure that, absent a relevant, material change in circumstances since the final orders (set out in more detail later), children should not be subjected to ongoing litigation by their parents.
Further, given that the Mother’s submissions, from an experienced firm of family lawyers, fail to address (or even refer to) any relevant principle in relation to the rule or principle in Rice & Asplund, in my view, such an omission makes it even more inapposite to consider the Mother’s further attempt to re-visit the final parenting orders of September 2014.
From what I have already said, it will be plain that, in my view, it is a critical omission in the Mother’s submissions to make no mention of the relevant principles that should be applied to a party who seeks to re-litigate parenting matters that were determined on a final basis literally a matter of months ago.
To put it rhetorically: where
(a) the Full Court has regularly articulated and refined principles that relate to and arise out of the basal decision in Rice & Asplund,
(b) the moving party fails to make any reference to such principles, and
(c) the Responding party, by reference to these Full Court principles, puts submissions that reasonably lead to the conclusion that the new parenting Application ought be dismissed,
and leaving to one side for the moment the factual claims made by the Mother and the Father’s responses to them, as a matter of proper procedure, how can (or should) the Court relevantly consider the Mother’s Initiating Application?
In such circumstances, it might also reasonably be asked: why should the Full Court bother to provide principle (in this instance, Rice & Asplund and subsequent cases noted later in these reasons) that is to be followed in certain types of applications, if those principles are not even referred to, let alone used, by the moving party to support the Application in question? Indeed, why have principles if parties can simply ignore them, as is the case here? A fortiori if the opposing party does have due regard to relevant principle? Rather perversely, just on the basis of the omission to refer to or to consider relevant principle by the Applicant in the current matter, this would mean that a party (in this instance, the Mother) who ignores principle can get away with not even referring to it, while the party who has had regard to relevant principle is penalised because the Father in this instance will have to face a further Application that had been dealt with, on a final basis, only months earlier.
For the reasons that follow, the Mother’s Initiating Application (filed 12th May 2015) should be, and will be, dismissed.
Outline of Principle
I note the following from four of many Full Court decisions that deal with the principle first articulated by the Full Court in Rice & Asplund.
Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[5] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set them out from his Honour’s judgment.
[5] SPS & PLS (2008) FLC 93–363. Warnick J was sitting as the Full Court.
In 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington discussed further the principle and application of Rice & Asplund.[6] Among other things, the Court there said, at [72] (emphasis added):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
[6] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
Then at [80] and then at [82] - [84], the Full Court noted:
[80] In our view, that passage [at [81] in SPS & PLS] need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
[82] … the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
[83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
[84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….
Then in 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[7] At [43], their Honours commented on the rule in Rice & Asplund:
If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.
[7] Poisat & Poisat (2014) FLC 93-597.
Most recently, in Carriel v Lendrum, a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle or rule in Rice & Asplund.[8] At [46], their Honours said (emphasis added):
… we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….
[8] Carriel v Lendrum (2015) 53 Fam LR 157.
After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [42]), at [56], the Full Court said:
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Act in determining where the best interests of the child might lie.
Then at [57], their Honours stated (emphasis added):
In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):
Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to 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.”
I might observe here that, as outlined earlier, the Mother’s recent (post-trial) evidence does not reflect significantly different circumstances to those that were canvassed in detail at the trial and which would warrant the change sought by her to the 2014 orders. The interim variations to the final orders that were made on 19th November 2015, put in place further protections for X (and the Father). However, as addressed in the 2014 final judgment, it is in X’s best interests to develop a good and meaningful relationship with both parents which will be best achieved (and supported) by a week-about living arrangement, as was previously ordered.
Although the point has been made earlier in these reasons, given the very significant jurisprudence regarding the principle in Rice & Asplund, some of which I have now referred to, it is all the more remarkable that there is no reference at all to any such basal principle, or to any of the subsequent, detailed jurisprudence from the Full Court, in the Mother’s written submissions in support of her May 2015 Initiating Application. Even more so is this the case because at the mention or directions hearing on 15th September 2015, the Father’s solicitor referred specifically to the rule in Rice & Asplund, obviously while the Mother’s solicitor was also at the Bar Table. This only makes more unfathomable the Mother’s solicitor’s failure to address or even to mention the rule in her written submissions.
Again to put it rhetorically: where does it leave a litigant (in this instance the Father) who refers to relevant principle if it were to happen that experienced family lawyers for the Mother have, for whatever reason, chosen not to refer to principle in their written submissions? And likewise, where does it leave courts at first instance who are bound by such principle when one party, for whatever reason, does not refer to any relevant principle? Does a court, faced with submissions by one party which set out and refer to principle but the other party makes no such reference, simply ignore such omission? If so, why have principles? The unprincipled exercise of discretion will simply prevail in such circumstances.
The May 2015 Application: The Mother’s Contentions
I note the following from the Mother’s affidavit, filed 12th May 2015.
At the outset, she stated (par.7):
Whilst I respect the Orders made allow X to continue to develop meaningful relationships with both Mr Mott [the Father] and I, and to alleviate concerns in relation to Mr Mott’s domestic violence upon me due to mental health issues, I am concerned that Mr Mott is not providing a safe environment for X.
The Mother then outlined an incident on 28th March 2015 between the Father and the child at a Woolworths Supermarket where Father and son punched each other in the stomach. Ultimately the Father was charged with common assault over the incident. I note that it was six weeks between this incident and the Mother filing her Application in May 2015.
As a result of that incident, the Mother recorded that the parties agreed to vary the final orders, on an interim basis. Curiously, the Mother’s affidavit (par.14) refers to the orders as being “Family Court Orders.” Like many other matters, basic attention to such [in]accurate detail does not assist the Court.
At par.15 of this affidavit, the Mother deposed (emphasis added):
It is my view that the current Orders expose X to the risk of harm. Mr Mott knew himself to be unwell, failed to disclose the decline in his mental health, sought to increase his time with X, and convinced a psychiatrist that he was well. The extent of decline in Mr Mott’s mental health was not apparent until his assault on X. Annexed hereto and marked with the letter “D” is a copy of the Father’s latest psychiatric report dated December 2015.
Actually, the annexed report is dated 26 November 2014. Such inaccuracy – omission of the date, and incorrect year - bespeaks, again, sloppiness.
It is more apposite to note that these basic complaints of the Mother about the safety of the child with the Father, and the Father’s mental health issues, were canvassed at great length at the trial. The final orders were not appealed by the Mother.
Further, the claim by the Mother that by some unspecified means the Father was able to dupe a psychiatrist “that he was well” is a very serious allegation to level at an expert. The basis for such a grave allegation is not set out.
At pars.16 – 19 of the affidavit, the Mother expresses concern about X’s behaviour, which she attributes to him spending time with his Father, while at pars.20 – 30, the Mother details her concerns about X coping at school.
Although detailed later in these reasons, it is sufficient here to record that X’s schooling was considered in the final orders (and the reasons in support of them), and the behavioural risks to the child were highlighted by the family consultant who gave evidence at the trial, which evidence was noted in the September 2014 final judgment.
What was also noted in the course of the trial and in the reasons given by the Court was the child’s tendency – acknowledged by the Mother – to play the parents off against each other. This is relevant to the Mother’s further concerns (pars.31 – 36) about what she described as ‘domestic violence’ which has been reported to her by X.
At pars.37 – 42, the Mother again raises concerns about the Father’s mental health. Again, I simply note that the Father’s mental health was the subject of detailed consideration at the final hearing.
In addition to the Mother’s affidavit, the maternal Grandmother provided a brief affidavit, filed 12th May 2015, in support of the Mother’s Initiating Application. She recounted her observations regarding the aftermath of the incident at the Woolworths supermarket, what she said are noticeable changes to X’s behaviour, and her general distrust of the Father.
In my view, the brief comments by the maternal Grandmother add little to what was recounted by the Mother. More relevantly, they do not address or take account of the detailed expert evidence from the family consultant given at trial of the impact on X of ongoing parental contests. Most unfortunately, what the family consultant identified appears to be coming true.
The Mother filed a further affidavit on 2nd June 2015 (unfortunately, in keeping with earlier slipshod or poor drafting and editing, some formal parts of this affidavit are not completed), which outlined another contest between the parties (which was said to have included the Father’s partner) outside X’s school on 8th May 2015. Various SMS messages relating to this incident are annexed to the Mother’s affidavit.
In this later affidavit, at pars.8 – 10, the Mother complains about the Father allegedly interfering with X’s trampolining lesson by giving him some directions that are said to be contrary to what the instructor was giving.
In my view, all these incidents do is highlight the fraught parental relationship between the parties, and the radically different parenting styles of the parties, which were also plainly on display during the trial and addressed in the final reasons and orders.
The Mother filed a yet further affidavit on 5th November 2015, in which she recounted an incident told to her by X that was said to have taken place on the weekend of 27th and 28th September 2015 that involved some sort of discipline of the Father’s step-children in a public place, but which did not (it would seem) involve X directly. This incident, the Mother says, gives rise – again – to her being concerned about X’s safety while in his Father’s care.
Next, the Mother expresses concern about the supervision of the Father provided by his partner, Ms S, and – on X’s account of events – apparent breaches of the undertaking given by Ms S to the Court.
Other matters raised in the Mother’s third affidavit relate to “correspondence received from the Father” (which is annexed to the affidavit), and the Mother’s concern about the Father’s [alleged] denigration of her. This too is on the basis of X’s report. Plainly the child is a fertile conduit of information to and about each parent – something that was also the subject of comment at the final hearing. The Mother has a final section entitled “Moving Forward”, which recounts, among other things, the proposal to send X to a clinical psychologist
By way of observation only: in the light of the detailed evidence at trial, the consistency and nature of the accounts in the Mother’s three affidavits sort of bespeak a narrative of telling tales about the Father’s [alleged] misbehaviour. Sometimes it is the case that parties reveal more about themselves by the nature of their own evidence as they endeavour to build a case against the other party. Further, taking the Mother’s evidence at its highest (which I do), and absent any reference to appropriate judicial principle, the tales told or narrative presented over the course of three affidavits fails relevantly to distinguish or to show how the various incidents set out are materially different from those that were explored at length during the trial.
The Father’s Response
As summarily as possible, the Father’s responses were as follows.
First, the Father’s treating psychiatrist, Dr A, filed an affidavit on 10th September 2015, which attached a moderately detailed report regarding the Father’s mental health. Relevantly, that report stated that (a) the Father presented as clinically stable and doing well, (b) his most likely diagnosis is bipolar disorder (type 2), (c) the Father is currently stabilised on medications for his diagnosed condition, and (d) the Father’s “parenting of his son (X) only needs to be supervised at times when Mr Mott is mentally unwell.”
Dr A’s report further stated:
I do not expect a substantial or enduring impact from Mr Mott’s mental illness on an 8 year old child in his care provided Mr Mott continues to attend regular monitoring and treatment of his diagnosed condition, and his parenting of the 8 year old is supervised whenever Mr Mott is mentally unwell.
As per my recommendation in respect of Mr Mott’s future role in respect of the care of his son, I recommend the ongoing implementation of the Court order … dated 26 September 2014.
Secondly, the Father deposed that he accepted that his recent mental illness did place X at some risk, and that this “risk” was due solely to his then state of mental health.
The Father denied the account by the Mother of the incident in March 2015 at the Woolworths Supermarket. He said his account would be supported by the CCTV footage, which had been viewed by the police. The statement attached to the Father’s affidavit (annexure B1) actually states that the CCTV footage does not relevantly cover the incident in question. He said that he did not physically harm X or attempt to do so.
The Father provided copies of an apprehended violence order taken out by the police against the Father in X’s favour. He also provided (annexure B) a copy of the order made dismissing the charge of common assault pursuant to s.32 of the Mental Health Act2007 (NSW).
The Father deposed that even when he is unwell, he remains able to function as a parent, apart from a heightened sense of irritability. He accepted that the final orders could be changed as sought by the Mother to reduce the risk of any harm due to a recurrence of mental illness. He also proposed an even more stringent requirement on him to self-report earlier than the prescribed 3 monthly check as set out in the final orders.
The Father contended that, in his view, there is no relevant change in X’s behaviour, and certainly none that is attributable to the child spending time with his Father. He also said that X has always been a socially awkward child, which would make it difficult for him to adapt to a new school, as per the final orders. However, given time and support, the Father was confident that X would settle well into the school. Indeed, at par.28(ii) – (iv) of his affidavit, the Father recounts a series of favourable comments about X from his class teacher.
The Father accepted that on a number of occasions recently he did not act appropriately towards X, which he said was directly related to him being mentally unwell. He said, at par.34(ii) that he had taken himself back to see his general practitioner so that he could immediately be referred to a psychiatrist.
The Father rejected the Mother to act as a supervisor of his time with X when he was unwell. He said that his partner, Ms S, was an appropriate supervisor at such times. He also pointed out (par.45(ii)) that there was some irony in the Mother proposing that she be the supervisor given her allegations of domestic violence against the Father.
The Father also noted that both his Mother, and a nominated neighbour, have offered to be supervisors as required.
More generally, the Father summarily noted (par.70) that he became mentally unwell around Christmas 2014, which (he said) was the first time since 2007. Upon recognising his situation he returned to his general practitioner for referral to a psychiatrist. The Father also recorded his regular appointment with his psychiatrist, pursuant to existing orders, was scheduled for August 2015.
The Father also confirmed that, following him being punched by his son at Woolworths, he had a “brain snap” and his actions led to him being charged with common assault X. He said that he had no intention to hurt X. The Father confirmed that at the time he had been mentally unwell, and that he was (at the time of filing this affidavit – August 2015) approaching 100% [mental] health. He said that because he had become unwell, he accepted the need for a stricter regime for monitoring his mental health. He said that he had incorporated into his Minutes of Orders Sought those which had been sought by the Mother.
Following the incident at Woolworths, the Father confirmed (par.72) that he had had only supervised time with X, with that supervision by the Mother. On a number of occasions, the Father deposed that the Mother had left him “unsupervised” with X, as well as sometimes with X and the Mother’s foster children. There have been, the Father says, no relevant incidents on those occasions.[9]
[9] At pars.73 and 80, the Father (like the Mother) inaccurately referred to “Family Court Orders” or the Application in “the Family Court.”
At par.75 and following, the Father set out the more recent occasions when he has sought mental health assessments.
At par.76, the Father refers to the Mother’s foster children, one of whom has a number of disabilities. The Father reports that X finds living with the two young foster children stressful, including the limited space at the Mother’s 2 bed-room home unit. This aspect of the Mother’s and X’s lives was also the subject of comment in the final judgment in September 2014.
At par.77(i) – (xiv), the Father recounts various parenting decisions by the Mother which he says have adversely impacted upon X.
The Father’s partner, Ms S, filed an affidavit on 10th July, and a formal undertaking, on 5th August 2015, in which she confirmed her understanding of the need properly to supervise the Father’s time with X and that she understood the Father’s mental health issues.
Finally, the Father filed a further affidavit on 14th September 2015. Among other things, he recorded that the parties had agreed upon the terms of reference for the preparation of a report from Dr A (to which I have earlier referred). The Father then recounts, in some detail, his concerns about the Mother’s actions and the adverse impact they are having, and continue to have, on X’s behaviour and more particularly on the Father – son relationship. In short, the Father says that whenever X is with him, X is fine, and is a typical 8 year old boy, but that he is emotionally vulnerable when the child is with his Mother.
The Father also deposed (par.11) to what he described as the Mother’s derogatory and undermining behaviour towards him. I need not detail these matters. Likewise, I need not record the Father’s complaint about the high financial cost of [again] being taken to Court by the Mother and how his financial plight is not assisting in providing for various things for X now and in the future.
The Mother’s Submissions
The Mother’s brief submissions (filed 17th September 2015) contended that:
(a)X was exhibiting certain [anti-social] behaviours (e.g. acting aggressively, angry, withdrawing from activities, mood changes, poor self -image, self-harm;
(b)In the light of such changes, the Mother proposed that X attend upon a clinical psychologist to assess, among other things, the child’s emotional and psychological state, and the other matters just noted;
(c)Pending the provision of the expert report sought by the Mother, the Father’s time with the child should be attenuated from that set out in the final orders, and instead for that time to be each alternate weekend from after school Friday until before school on Monday, and other times as agreed in writing between the parties.[10]
[10] I simply note that the orders sought in the Mother’s Initiating Application filed in May 2015, sought a much more detailed and prescriptive regime, with the Mother to have sole parental responsibility for the child.
The Father’s Submissions
The Father’s brief submissions provided for the Mother’s Application be finalised in terms of the final orders made on 26th September 2014. He also relevantly submitted that:
(a)There was no new evidence to overcome the Rice & Asplund issue;
(b)The parties (especially the Father) were financially and emotionally exhausted by the litigation;
(c)The child’s negative behaviours were likely to be attributed to the Mother’s [anxious] care of the child, the limited time he had been spending with the Father and the lack of the Mother’s support for that relationship;
(d)There was no likely unacceptable risk for the September 2014 orders to be reinstated [in the light of the evidence from Dr A, and Ms S’s undertaking];
(e)There has been no material change to the findings and the analysis of s.60CC [of the Family Law Act] factors that were discussed in the reasons for final orders in September 2014;
(f)It is in X’s best interests that finality be achieved “to the extent that this is possible as continuing litigation poses the greatest threat to X’s future welfare.”
Consideration & Disposition
The issues on display and determined during the trial and set out in the extensive reasons (delivered on 26th September 2014) included the following: the Father’s mental health and the impact this may have on his parenting of X; the fractious, distrustful parental relationship; and the impact of that poor parenting, in particular, and the parental conflict, on X; completely different parenting styles, and the Mother, who is a very anxious parent, while the child is by all accounts robust and busy, indeed, very lively who wants to spend more time with his Father and in many respect revels in the significantly active and more adventuresome life of the Father.
At trial, the Independent Children’s Lawyer supported the Father’s orders to increase his time with the child. Just as it was then, so since there have been some poor decisions by the Father, and it would seem, especially on the Mother’s evidence, that the parties still come into contact, despite warning them to avoid doing so.
I note the following paragraphs from the judgment of last September which record the same issues about which the Mother complains now in the light of recent events: 85, 87, 89, 92, 96, 99, 105 to 106 and 108.
In addition, I note the following from the final judgment:
(a)The lack of trust between the parents (at [26]);
(b)An incident between the parents in February 2013, which involved physical struggle and contest, and which also involved the child. The Father acknowledged that his actions on that occasion amounted to the use of disproportionate force. The Father also admitted that earlier in the relationship he had had physical contests with the Mother, while the Mother admitted that she had hit the Father in the head (at [45] – [58]);
(c)Both parties felt stressed, pressured and almost paranoid about what the other party is going to next level against them (at [63]);
(d)The Mother is constantly vigilant and concerned about the child’s safety (at [72], [86], [87], [93], [96]);
(e)The parties have very poor communication (at [73]);
(f)The Mother is highly critical of the Father and highly protective of the child (at [81]) almost micro-management in parenting (at [89]);
(g)The Mother involved the police in the child’s life arising out of a physical game where the child suffered slight bruising (at [98] – [99]);
(h)The Mother was found not to be “flexible and amicable” (as she asserted) in her dealings with the Father (at [107] ff);
(i)There was a contest between the parties over X’s schooling (at [111]);
(j)The Father’s mental issues featured prominently throughout his evidence (at [18] – [69])
In addition to all of the matters just noted, I am particularly concerned, amongst other things, to go back and read the evidence of the family consultant (clinical psychologist) Ms F given in her Reports (Exhibits Z1 & 2) and at trial.
Among other things, I note Ms F’s evidence, at [141], about it being possible for parents to be psychologically unwell without having a clinical condition. I suggest very strongly that both parents need to go back and re-read both Ms F’s report and the final judgment to re-consider both the issues that were canvassed at trial, and the comments and recommendations of the family consultant.
In her final Report, at paragraph 14 (and in the reasons of the Court at [116]), Ms F’s evidence was that while ever there was parental conflict it was likely to lead to an increased risk in the behavioural problems with X. Such has obviously proven to be exactly the case here. Indeed, in circumstances where behavioural problems were foreshadowed by the Family Consultant at the trial, it is difficult to see how the “Woolworths incident” can be isolated as the causal link to such behaviour. Put another way, aberrant behaviour of the child was highlighted by the Family Consultant at the trial as a significant risk in the light of ongoing parental conflict. In the light of such expert advice, it is difficult to see how one particular incident can properly be isolated from the ongoing, indeed apparently, relentless parental contest.
I note too the comments in the final Report at paragraph 74 (which are set out at [124] of the reasons). Most unfortunately, it would seem that everything that Ms F indicated, if not prophesied, has come true, particularly if one accepts, at its highest, the Mother’s evidence. Lest it be thought otherwise, for the purposes of these reasons, I should be taken to accept the Mother’s evidence at its highest.
The issues that I have summarised, and many others otherwise detailed in the reasons of last September, remain in play today. I stress again the clear evidence of the family consultant during the trial regarding the adverse impact on the child of the ongoing parental conflict. That evidence unfortunately remains apposite and poignant just as much today as it was last year.
In my view, in the light of
(a)the detailed evidence before the Court at trial and the issues then considered and determined;
(b)the same if not identical issues having been raised by the Mother in support of her Initiating Application (filed May 2015) (with perhaps some slight differences only in terms of weight and or degree – including certain similarities between the “Woolworths incident” and the matters canvassed at [80(b)] of the current reasons); and
(c)the instruction from the Full Court in Rice & Asplund, and in the other more recent cases to which I have referred (notably in Carriel v Lendrum),
the Mother’s Initiating Application has not shown a sufficient or sufficiently material change in circumstances as to warrant the matter being re-litigated. Further, and no less relevantly in the light of the Family Consultant’s clear evidence at trial, the longer the parents continue to contest matters and to embroil X in their parental conflict, the greater the likelihood of greater dysfunctional parenting, and the greater the likelihood of X’s exhibiting anti-social behaviour.
And further still, to put it in slightly different terms: it is patently not in X’s best interests to remain embroiled in and be the subject of ongoing litigation between his parents. The legislative considerations that were addressed in the final reasons in September 2014 remain apposite today.
The only or ultimate, and necessarily blunt, question is: ‘when will the parents act like parents and put X’s best interests above their own?’ They risk not only ongoing litigation with all of its attendant costs - financial, emotional, time and the like - but even more so the ever-growing risk of adverse consequences for X. Both parents are intransigent in their views as to what is in X’s best interests and how the actions of the other parent are harmful to him.
Such polarised and oppositional parenting, which was plainly on display during the final hearing, remains the only constant in this poor child’s life. There is no doubt that he has parents who love him immensely but that love seems invariably to take second place behind conflict that seems otherwise unable to be avoided.
Sacrifice, not opposition and intransigence, is a key feature of good, sound, child-focused parenting. Alas, there is precious little of that virtue on display in this matter. In my view, there is, nonetheless, some very brief or practical amendments that are apposite to be made to the final orders which would be, in my view, in X’s best interests. Such amendments must include further refined orders in relation to the Father’s mental health assessments, and also with respect to changeovers. And such amendments would readily come within what Warnick J contemplated at [83] in SPS v PLS.
Subject to those matters that are spelt out in the orders, and which are taken from the submissions of both parties, in my view, the principles of Rice & Asplund must apply and the Initiating Application must otherwise be dismissed.
Again, I stress my surprise and regret that the Mother’s submissions made no mention of or reference to those principles. Indeed, because there was no mention of or reference to principle, the Mother’s affidavits, and her written submissions, simply presented another montage of disparate events which confirmed that the parties still have the greatest difficulty in dealing with each other, and being able to quarantine their parental disputes from X. The Mother has not shown in any relevant respect, and certainly not by reference to any legal principle, how the events narrated are materially different from the events that were the subject of examination during the course of the trial. Nor has she shown how a change to the 2014 orders will improve the parenting arrangement, or lead to more practical or workable orders that will be in X’s best interests, more so than pursuant to the 2014 orders.
As it was in 2013 and 2014 (and earlier), so it is in 2015: the parents have very different parenting styles; they have very different personalities; the Mother appears to remain highly sensitive and hyper-vigilant in her care of X and is extremely anxious about X while he is with his Father. The Father remains quite strong headed, and almost wilful at times in his own indestructibility which clouds his judgment at times about his mental health. The Court can only again plead with the parents to have as their prime focus the best interests of X – but not in a smothering way. How they do this was explored at trial. Their inability to learn lessons from the past will continue to haunt and cost them – in every respect. And the greater cost will ultimately be borne by X.
I formally make the orders indicated, which will result in the orders of 2014 remaining in place but with the few amendments I have noted.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 21 January 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Remedies
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Procedural Fairness
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