EASTMAN & TANDY (No.2)

[2020] FCCA 3594

FEDERAL CIRCUIT COURT OF AUSTRALIA

EASTMAN & TANDY (No.2) [2020] FCCA 3594

Catchwords:
FAMILY LAW – Parenting – initiating application filed by the mother to vary final orders – where the father proposes to travel interstate for a holiday with the child – Rice & Asplund assessment – whether there is an unacceptable risk of emotional harm to the child – not satisfied there is evidence of an unacceptable risk of emotional harm to the child.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund (1979) FLC 90-725

Applicant: MS EASTMAN

Respondent: MR TANDY

File Number: DNC 82 of 2020

Judgment of: Judge Young

Hearing date: 22 December 2020

Date of Last Submission: 22 December 2020

Delivered at: Darwin

Delivered on: 22 December 2020

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Ms Farmer

Solicitors for the Respondent: Withnalls Lawyers

ORDERS

1. That the interim application filed by the mother on 15 December 2020 to vary the orders for the child X born in 2018 to spend time with the father for three weeks in City B be dismissed.

2. That all outstanding applications be adjourned to 12 February 2021 at 2.15pm in relation to the father’s application for contravention and Rice and Asplund issues.

IT IS NOTED that publication of this judgment under the pseudonym Eastman & Tandy (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 82 of 2020

MS EASTMAN

Applicant

And

MR TANDY

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an initiating application filed by the mother on 15 December seeking to vary final orders that were made by consent on 24 June 2020.

3. The parties are in a bitter dispute about their two-and-a-half-year-old child, X.  The mother's application is essentially on the grounds of urgency and I have listed the matter for mention in an otherwise busy list on the last hearing day of the year that I have available.  I was told by the solicitor for the mother that there were grounds of urgency because the father was proposing to travel to City B in January for a holiday with the child and he is proposing to have the child spend three weeks with him, as is permitted under the consent orders made in June on giving notice.  It is not suggested the order has not been complied with in that sense.

4. However, the mother's application is that that order made on 24 June by consent be varied, so that the child can spend no longer than seven days with the father in City B.  The counsel for the mother said that the right approach to this question was, first of all, to take into account the Rice & Asplund (1979) FLC 90-725 principles. That is, is there material before the Court that, having regard to the overriding obligation of the Court, which is to make orders that are in the best interests of the child; that it was appropriate or on the cards that there would be orders varying order 5(c), which permits, as I say, the child to spend time with the father interstate for up to three weeks. Further, Mr Barry submitted that there is an unacceptable risk of emotional harm to the child should the order be given effect.

5. In addressing the Rice & Asplund principles, Mr Barry submitted there had been a significant change in circumstances.  He said there had been a breakdown in communication and the co-parenting relationship between the parties.  It appears to me that the co-parenting relationship between the parties is terrible.  That appeared to be the case when they first came into my court in January/February of this year. 

6. I do not know whether that is a particular change in circumstances but there is some indication that certainly at the time the parties spoke to the family consultant for the purposes of the preparation of a child-inclusive conference memorandum on 16 April 2020 that they were both working in a way that meant that the effective shared-care arrangement was working.  As far as I can, I am not being asked to vary that at this stage.

7. Another factor that I was told about was that the mother obtained a restraining order against the father in the Local Court recently.  I am told that the order was made without admissions but it is a restraining order. The terms are not before me in an affidavit but, according to counsel for the mother, the terms of the final order are, in substance, similar as to the terms of an interim order made previously.

8. I was told the order that was confirmed recently without admissions was in the same terms as the interim order made on 29 September 2020, which has the mother as the protected person and the person restrained being the father.  The order is in relevant conventional terms and it prohibits communication between the parties, other than by solicitor or family dispute resolution practitioner in relation to children's matters, or the restrained person approaching and entering or remaining at any workplace of the protected person or intimidating, harassing or verbally abusing the protected person or exposing the protected person to family violence.

9. I was also told, without objection, by Ms Farmer from the bar table, who is for the father, that he has sought a restraining order against the mother, and that was heard recently and the Local Court judge hearing the matter has reserved his decision.

10. The other factor that is said to be relevant to the question of a Rice & Asplund assessment is matters that are outlined in the mother's affidavit, which relate to what are alleged to be changes in the child’s behaviour since around September.  It is said in the mother's affidavit that the child wakes at night with night terrors and has said:

    I'm not seeing you tomorrow, Mummy.

    Mummy, where are you going?

    Mummy, I was looking for you.

11. It is said that the child did not engage in that behaviour prior to September.  It is also said that in around June or July of this year, which would have been before or soon after the time the consent orders were made, that the child had bitten other children at her day-care centre and staff had said to the mother in relation to the biting that:

    …  the child seems to be quite tired during the day …

    and:

    Some kids do bite, X is biting quite a lot though, and often the same child more than once in a day.

    She seems to be frustrated and is perhaps biting out of frustration.

12. The affidavit goes on to say that the child is tired and not coping with the regime of two households.  That is largely the evidence about the child's changed behaviour.  Even accepting that that is true, it is in my view reasonably speculative to suggest, as Mr Barry does, that this is a sufficient basis for me to conclude that there is an unacceptable risk of emotional harm to the child should she spend three weeks with her father, as per the current orders.

13. One would expect a two-and-a-half-year-old child, who is caught between parents who are engaged in a bitter and protracted dispute to possibly be showing signs of that dispute.  It is very difficult for parents to entirely protect children from their own conflict.  However, it seems to me that really the application at this stage is nothing more than speculative and there is no material before me which persuades me that there is an unacceptable risk of emotional harm to this child, should the present orders be complied with.

14. I decline to make any order varying the current orders.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 21 January 2021