Eddy and Weaver
[2009] FMCAfam 188
•19 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EDDY & WEAVER | [2009] FMCAfam 188 |
| FAMILY LAW – Parenting proceedings – children aged 11 and 10 – final orders made in November 2005 – orders varied in the period since – mother seeks to change orders on the basis older child stressed by current regime – parents’ relationship characterised by mutual mistrust and poor communication – parties’ poor relationship long standing in nature– application of rule in Rice & Asplund – father opposes any further proceedings and seeks dismissal of mother’s application on basis that any further examination of parenting arrangements will unnecessarily stress the children – mother seeks family assessment to canvas views of children – father opposes such an invention asserting no proper basis for it – whether change of circumstances – whether issue should be determined as a preliminary issue – best interests. |
| Family Law Act 1975, ss.69ZN, 69ZQ, 69ZR |
| Rice & Asplund (1979) FLC 90-725 SPS & PLS [2008] FamCAFC 16 Eddy & Weaver [2008] FMCAfam 1444 CDJ v VAJ (1998) FLC 92-828 In the Marriage of McEnearney (1980) FLC 90-866 Bennett & Bennett (1991) FLC 92-191 King & Finneran (2001) FLC 93-079 Luadaka v Luadaka (1998) FLC 92-830 |
| Applicant: | MS EDDY |
| Respondent: | MR WEAVER |
| File Number: | ADC 959 of 2008 |
| Judgment of: | Brown FM |
| Hearing date: | 16 February 2009 |
| Date of Last Submission: | 16 February 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 19 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lewis |
| Solicitors for the Applicant: | Lynch Meyer |
| Counsel for the Respondent: | Mr Britton |
| Solicitors for the Respondent: | Jane Ekin-Smyth |
ORDERS
The parties jointly commission Ms Roxanne Hewett to prepare a family assessment report to address the best interests of the children [X] born in 1997 and [Y] born in 1998.
The costs of the provision of the report be borne by the applicant mother.
The matter be listed for further directions on 30 June 2009 at 9.30am.
IT IS NOTED that publication of this judgment under the pseudonym Eddy & Weaver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 959 of 2008
| MS EDDY |
Applicant
And
| MR WEAVER |
Respondent
REASONS FOR JUDGMENT
Introduction
In all proceedings concerning a child, the best interests of the child is the paramount or most important consideration. In some circumstances, the court must consider whether further litigation about arrangements for the care of a child poses, of itself, a threat to the child’s welfare and so should not be countenanced by the court.
This is one such case. Ms Eddy “the mother” and Mr Weaver “the father” are the parents of [X], who was born in 1997 and [Y], who was born in 1998. The parties have been separated for many years. Notwithstanding the length of this separation, the parties’ antipathy towards one another remains unabated and likely to remain so.
The parties separated in early 2003. In November of 2005, I made final orders relating to arrangements for the parenting of the two children.[1] Pursuant to my orders, the children were to live predominantly with the mother, but were to see their father regularly during weekends; school holidays; and on one school night per fortnight.
[1] See Eddy & Weaver [2005] FMCAfam 596
The orders of 2005 were made after a bitterly fought hearing taking four days. Part of the evidence occupying this hearing period was provided by a psychologist, Ms Hewett, who had prepared a family assessment report. Ms Hewett regarded the parties as being “high conflict parents”. It is clear to me that, both from the earlier proceedings and given the nature of the current applications, this remains the case.
Ms Hewett also described [X] as an anxious child, who had a propensity to worry. In the past, Ms Hewett was concerned that [X] had been placed “in the centre of the dispute” between his parents. In 2005, she recommended that [X] undergo some form of therapeutic counselling.
In 2005, I found that the children had a significant relationship with the father but their mother provided more of their emotional security. I also found that the parties’ parenting relationship was too fraught with difficulties and their hostility for one another to be so extreme that their circumstances would not sustain a shared or equal time parenting regime. This was essentially the rationale for the orders, which I made in November of 2005.
Since November of 2005, there have been other proceedings between the parties in this court. In October of 2006, a consent order was made for an extension of the time which the father spent with the children. In February 2007, other orders were made, again with the mother’s apparent consent, which permitted the father to take the children to karate lessons and other extra curricular activities arising, when the children would otherwise be in the mother’s care.
The mother complains that she was legally unrepresented when these orders were made and so did not fully understand their implications. It is her case that both children, but particularly [X], are stressed by the current regime for their care, particularly the significant emphasis the father places on the children’s sporting obligations.
The mother commenced the current round of proceedings on 28 November 2008. On a final basis, she seeks that all previous orders be discharged. More importantly, in the context of these proceedings, she seeks an order that would see the children living with her and spending time with their father at such times and upon such conditions as this court may subsequently order.
In the interim, she seeks the suspension of the various current orders which regulate the time which the children spend with their father. In lieu thereof, she proposes that the children spend any periods of time with their father which they may request.
Upon the making of these interim orders, it would be the mother’s position that the circumstances of the children, particularly [X], dictate that there should be an urgent psychological assessment of the needs of the two children. It would be her position that both parties should pay the costs which will be necessarily incurred in the provision of such a report.
The father responded to this application on 19 December 2008. It is his position that both the interim and final aspects of the mother’s application should be dismissed forthwith. He is opposed to there being any psychological investigation of either child. If the matter proceeds any further, it is his position that the mother should provide security for costs in the sum of $30,000.00. He would also seek orders that would injunct the mother from having either of the children medically or psychologically examined, without his consent or permitting her to make any further application to the court without its specific leave.
Essentially, it is the father’s case that the mother’s application is misconceived and, if the court permitted it to proceed further, it would be derelict in its duty to promote the best interests of [X] and [Y], particularly in protecting them from the consequences of unnecessary litigation. In this regard, he relies on the “rule” provided by the well known case of In the Marriage of Rice & Asplund.[2]
[2] Rice & Asplund (1979) FLC 90-725
In its simplest formulations, the rule indicates that where there has already been a final order in respect of parenting issues, before the court should embark on a rehearing of those issues, the applicant concerned must establish a significant change of circumstances.[3]
[3] See SPS & PLS [2008] FamCAFC 16 at paragraph 1 per Warnick J
Documents relied upon
The mother’s application to suspend the father’s time with the children, on an interim basis, came before the court on 17 December 2008. For reasons already provided,[4] I was not prepared to suspend ongoing arrangements for the father to spend time with [X] and [Y]. However, I also considered it appropriate that the mother be given an opportunity to respond to the father’s application for security of costs and that her application be dismissed on the basis of the rule in Rice & Asplund.
[4] See Eddy & Weaver [2008] FMCAfam 1444
Since November of 2008, each of the parties has taken the opportunity to file numerous affidavits. At the interim stage, in the absence of cross examination, I am not in a position to make any concluded findings of fact, where there is a conflict in the evidence of the various witnesses concerned.
However, the extent of the affidavit material and its general tone is indicative of the extreme level of conflict between the parties concerned and provides eloquent testimony of the polarisation between the maternal and paternal aspects of the children’s family.
In the mother’s case, she relies on the following affidavits:
i)an affidavit of herself filed 28 November 2008;
ii)a further affidavit of herself filed 30 January 2009; and
iii)an affidavit of Ms D filed 12 February 2009.
The father relies on the following documents:
i)an affidavit of himself filed 19 December 2008;
ii)an affidavit of Ms C, a psychologist filed 3 February 2009;
iii)an affidavit of his solicitor Jane Ekin-Smyth filed 9 September 2008;
iv)an affidavit of his brother-in-law Mr P filed 9 February 2009;
v)a further affidavit of himself filed 10 February 2009;
vi)a further affidavit of Jane Ekin-Smyth filed 9 February 2009; and
vii)a further affidavit of himself filed 16 February 2009.
The mother’s position
The mother asserts that the father is a violent and domineering person. This has long been her position. The father was charged with raping the mother in May 2003 but was acquitted of this charge by a jury in the District Court. He pleaded guilty to a charge of assault on the mother, arising out of the same incident and was sentenced to six months imprisonment, which was totally suspended. The good behaviour bond relating to this suspended gaol sentence has long since expired.
In conjunction with her current proceedings, the mother has filed a Notice of Child Abuse and/or Family Violence. She relies on her allegations in respect of the May 2003 matter. In addition, she asserts that the father has in the past subjected both her and the children to verbal and emotional abuse. In particular, she asserts that [X] has been subjected to emotional abuse, if his sporting achievements have not met the standard required of him by the father.
As a result of the amendments to the parenting orders, the children have sporting commitments on several occasions each week. They attend karate training twice per week; and football training, during the season, both at school and at their club, on four occasions each week. In addition, in the summer months, they attend a running club; agility training; and [X] plays cricket. It is the mother’s position that this is too onerous a schedule for the children and they are suffering from it.
Against this background, the mother consulted her general practitioner, in July 2008, in respect of [X] only. She reported that [X] was distressed prior to and after seeing his father. On this basis, she requested a referral for [X] to a paediatric psychologist.
As a result, Ms Eddy and [X] were referred to Dr B, a psychologist, in mid August 2008. Ms Eddy provided Dr B with a history of how she perceived [X] was dealing with spending time with his father. This history included that [X] had developed a series of “nervous tics” associated with the time he spent with his father. From the history provided to him, Dr B would have been under no misapprehension that the relationship between the parties was a strained and difficult one.
In the course of the same consultation, Dr B interviewed [X], who reported that he enjoyed school and had a special interest in sport, especially football. In respect of his relationship with his father, [X] reported that he “loved” his father but was apprehensive about some aspect of his father’s behaviour, particularly occasions when his father lost his temper or got angry with him, if he did not perform as well as possible at football.
Dr B did not observe [X] displaying any “tics” but found him a serious, intense and apprehensive child, who reported being frightened of his father becoming aware of any suggestion that he ([X]) wished to spend less time with his father in future.
Dr B summarised [X]’s views as follows:
·He would like to spend less time with his father than was available under the current arrangements;
·He would like to discuss his issues about his father’s behaviour towards him, with his father, under the supervision of a counsellor.
Dr B reached the opinion that [X] was bearing an excessive emotional load at the time of the assessment with him. He further opined that it was possible that this strain was exacerbating a mild form of Tourette’s syndrome, which [X] had been earlier diagnosed as suffering. These various factors caused Dr B to provide the following assessment:
“It is not possible to say with certainty at this time what is the source of this tic disorder. Further psychological assessment, including direct input from the father, would be needed in order to provide a more accurate and definitive opinion. Nonetheless, on the balance of probabilities, it is highly likely that the emotional stress [X] is experiencing in relation to current living arrangements and the relationship he has with his father are directly contributing towards his tic disorder and general psychological wellbeing.
In my opinion, the overall situation (embracing living arrangements, the relationship between [X] and his father and other matters) need to be explored in much more detail, as a matter of urgency.”
In reaching this opinion, Dr B conceded that he had no interaction whatever with Mr Weaver and was wholly reliant on Ms Eddy and [X] for the history, which had been provided to him. Necessarily, Ms Eddy is not likely to be greatly sympathetic to Mr Weaver.
For reasons, which are not clear to me, Dr B’s report took some months to be prepared, after his consultation with Ms Eddy and [X]. The report is dated 21 November 2008. Its arrival seems to have been at least one of the precipitating factors in the mother commencing this current round of proceedings.
On the basis of Dr B’s report, the mother contends that there is an urgent need to revisit the care arrangements for both children, but particularly [X], an essential condition of which is that a more detailed family assessment be prepared, which would necessarily involve input from Mr Weaver. It would be the mother’s preference that Ms Hewitt prepare this assessment.
It was also the mother’s initial position that the concerns raised by
Dr B warranted the immediate cessation of the children spending any time with the father. For reasons already provided, I did not think that this would have been an appropriate outcome at the interim stage.
It is the mother’s case that she finds it practically impossible to deal with the father, in any meaningful way, regarding arrangements for the children and due to his unreasonable insistence that they attend numerous sporting commitments she now spends little time with them. It is her case that both children, but particularly [X], are coping poorly with the extreme level of conflict between their parents. In this regard, she arranged for the children to attend a form of counselling offered by Anglicare in October 2007.
It is the mother’s position that this action on her part precipitated further conflict between the parties and in particular the father sending her an abusive and domineering text message. It is Ms Eddy’s position that the father has, both in the fairly recent past and before, sent her highly abusive and insulting text messages.
It is also the mother’s position that her and the father’s parenting aspirations and ethos are wholly incongruent and the father will go to extraordinarily lengths to undermine her parenting of the children, which is highly distressing to them.
Essentially, it is the mother’s position that the current state of affairs is intolerable both to her and the children, particularly [X] and needs urgent modification. Her initial affidavit is a list of what she sees as an unending chain of unfortunate incidents between her and the father and the dates on which they occurred from September 2007 onwards.
Ms Eddy has consulted a neurologist, Dr H, in respect of [X]’s syndrome. There is no doubt that [X] suffers this syndrome, although the parties are in vehement dispute about its level of severity. In his report dated 11 November 2008, Dr H reported as follows:
“There is no evidence that Tourette’s syndrome is caused by stress or anxiety, however in my opinion it is highly likely that stress or anxiety can trigger or exacerbate an underlying tic disorder. I understand that in [X]’s case the tics were most evident when his parents separated at 6 years of age, and these have persisted since then. He currently has a moderate to severe tic disorder, with the intensity rated between 6 and 8 on a scale of 10 for severity.”
Ms D is a close friend of the mother. On 8 February 2009, the children attended a social occasion at her home. It is Ms D’s evidence that [X] confided in her in respect of the emotional pressure he was under as a consequence of the tension between his parents.
[X] allegedly referred to this tension as “Mum and Dad stuff”. Ms D asserts that [X] disclosed to her that his father was pressuring him to “lie” to a “lady from some sports thing” about his mother attempting to manipulate his views. [X] also allegedly expressed concerns that he would get into “huge trouble” with his father and paternal grandparents if he told this “lady” the truth about his feelings.
It is the mother’s understanding that this “lady” is a psychologist from an organisation known as Mental Edge Consulting, which specialises in sports psychology. It is the mother’s case that the father has been taking the children to this service, without prior reference to her and this is of itself evidence of the father’s unhealthy obsession with the children, particularly [X], being able to excel at sport.
It is the mother’s view that [X] is a sensitive child, who is not responding well to the father’s attempts to develop him into an “elite” athlete. She is concerned that both children will suffer some level of psychological damage and a loss of confidence if they are unable to fulfil their father’s unreasonable expectations.
It is also the mother’s case that, between late 2005 and now, it is the father who has been driving the conflict between the parties, particularly by his instigation of proceedings in this court to revisit the orders of November 2005. The mother contends that she has attempted to make the orders work but the father’s attitude towards her has caused them to break down, leaving her with no alternative but to return to court, if the interests of [X] and [Y] are to be safeguarded.
Ms Eddy resists any suggestion that she has manipulated Dr B in any way. Rather, it is her case that she was referred to him for therapeutic reasons, relating to [X]’s state of psychological health. Given the contents of the report, it is her case that she would be derelict in her duty as a parent if she did not pursue this matter with the Court. It is also her case that her experience with the father is such that she realises that it would be fruitless for her to attempt to discuss the issue raised by Dr B directly with Mr Weaver.
The father’s position
The father’s position is that the mother’s extreme antipathy towards him has caused her to engineer a situation whereby [X] in particular, has been placed under great emotional pressure. He asserts that it is likely that the mother has manipulated [X] to say what he apparently said to Dr B. In addition, he asserts that it would be imprudent of the court to place any emphasis upon Dr B’s opinion, given that he
(Mr Weaver) had no input into the report writing process and it occurred behind his back.
Overall, it is Mr Weaver’s position that the level of parental dysfunction between him and Ms Eddy is perennial and, as such, is a constant in the children’s lives. Accordingly, it alone cannot amount to a new fact and circumstance, which has arisen since the final orders were made in 2005. Rather, it is a state of affairs which informed the court’s decision in November in that year and has not changed significantly in the period since.
Mr Weaver asserts that he is greatly concerned for the potential for emotional harm to be occasioned to both [X] and [Y], if the current round of proceedings is allowed to progress further, particularly through the avenue of some form of family assessment, which will attempt to canvass the children’s views.
Given the parental dynamic in this case, he asserts that it would be an unconscionable burden to place on the children to ask them to express any preference, between their parents, in respect of future arrangements for their care, particularly in circumstances where he asserts the mother is capable of emotional manipulation. Rather, he asserts that the parties should now each attempt to resile themselves to the orders which have been earlier made and “get on with the rest of their lives” and the court should encourage such resolution by dismissing the current application.
It is the father’s position that both the children have a meaningful and close relationship with him – a state of affairs recognised by Ms Hewitt’s report of 2005, which significantly informed the court’s decision in November 2005. As such, he is suspicious of the amorphous nature of the mother’s application, which does not specify, with any precision, the orders which she seeks for the children.
The father’s position is that it is self apparent that it is in the children’s best interests to maintain a relationship with him, through spending regular periods of time with him and through the making of orders which will envisage him retaining parental responsibility for them.
As such, given the circumstances of this case, it is unwarranted for the court to embark upon an exercise of revisiting the earlier orders which, at best, will only amount to some re-jigging of the time the children spend with each of their parents. An exercise which cannot be justified because of the risk the court’s procedures, of themselves, will pose to the children’s best interests.
If the court does elect to allow the case to proceed further, it is his position that the court should require Ms Eddy to lodge security for costs in the sum of $30,000 as, in his submission, her application has no merit and is maliciously motivated and, as such, represents an abuse of process.
There is no doubt, from the tone of his various affidavits, that
Mr Weaver has a vitriolic dislike of Ms Eddy, to whom he refers as “Eddy” in the various documents concerned. He regards her as being manipulative and dishonest, particularly in her choice of timing of the current round of proceedings.
Mr Weaver also asserts that the mother is fixated with the past, particularly her claim of having been raped by him. A matter which has been litigated on several occasions, both in this court and the criminal court. In his submission, this is also a compelling reason why the court should not reopen the litigation between the parties, which has the potential to do much harm, but achieve little.
Mr Weaver asserts that there is no new evidence, available to the court, on the mother’s own case, of sufficient moment to justify a change in the current care regime. In particular, he points to the fact that the rape allegation arose in 2003 and an incident relating to the cutting of [X]’s hair, which previously occasioned considerable controversy between the parties, occurred around two years ago.
He is particularly scathing in respect of Dr B’s report, which he asserts was commissioned solely by the mother as a possible pre-text for further litigation. Otherwise, if its purpose had been largely therapeutic, he asserts he would have been included in the report compilation process.
In addition, Mr Weaver points to the fact that Ms Eddy has concentrated on [X] in her current application – [Y] not having been interviewed by Dr B. It is his position that, in these circumstances, the court should entirely disregard Dr B’s report, particularly given his concerns that Dr B has been given a biased account of the parties’ relationship by Ms Eddy and it is highly likely that [X] has been “parroting” what his mother has told him to say to Dr B.
The father’s position is that Ms Eddy has overstated the extent of [X]’s syndrome, which he describes as “moderate”. This was the view of a Dr P, a neurologist whom Mr Weaver consulted, with [X], in May of 2007. At the time, Dr P had reported that [X]’s syndrome waxed and waned and the occurrence of his tics had not interfered with his “learning, self esteem or friendships”. On this basis, Dr P described [X]’s symptoms as “relatively mild”.
In support of his position that [X]’s syndrome is mild and his symptoms are not as severe as Ms Eddy would have it, Mr Weaver relies on a letter which he has obtained from [X]’s 2008 class teacher, Mr S. Mr S reported that [X]’s condition was not noticeable.
The father disputes any suggestion that he has a pathological obsession in regards to the children’s sporting activities, or that he gains some unhealthy vicarious gratification from their sporting successes. To the contrary, he asserts that the mother is waging a vendetta against him because of her “pathological hatred” of him.
To this end, Mr Weaver has obtained letters from various of the children’s sporting coaches, particularly in karate, who speak of the children’s interest and talent in sport and the healthy support
Mr Weaver provides them. In addition, Mr Weaver points to the fact that there is nothing of concern noted in either of the children’s recent school reports.
Mr Weaver disputes any suggestion that [X], in particular, is reticent about seeing him. To the contrary, it is Mr Weaver’s position that the mother places [X] under extreme emotional pressure if he ([X]) descents from the mother’s own personal “take” on the parties’ parental arrangements.
He is critical of what he sees as the mother’s attempts to sabotage the healthy lifestyle he is inculcating into the children. He also asserts that the mother is intent on undermining [X]’s self confidence, particularly the self esteem he derives from being involved in football.
Mr Weaver has arranged for [X] to attend Ms C, a psychologist, between June 2007 and November 2008. She has seen [X] on eleven occasions and [Y] on one. The purpose of her consultation with [X] was:
“Mr Weaver believed that [X] often avoided contact situations when playing football due to a fear of being hurt. [X] was taught the basic mental skills of developing cue words and thought-replacement.”
Ms Eddy points to one session, between Ms C and [X], which occurred on 26 July 2007, when [X] reported not playing well on the previous weekend and as a consequence he and his father not having spoken to one another, as [X] was upset because he had “let dad down”. In the mother’s contention, this is a classic example of the pressure
Mr Weaver places [X] under in respect of sporting activities.
In a subsequent session, which occurred on 25 August 2007, [X] reported to Ms C being distressed because his mother had asked him to “upset dad”. In early February of 2008, [X] reported that his parents were angry and arguing with one another over some school related issue to do with [X]. [X] reported that he did not like being “in the middle” of such conflict. At this stage, [X]’s tic was readily apparent to Ms C.
In late August of 2008 [X] reported to Ms C that he had been asked “to lie to his father” by his mother. Again, Ms C noted [X]’s tic to become more pronounced and he became very distressed and was sobbing and crying, whilst explaining this occurrence to Ms C.
In her report, which Mr Weaver has obtained and which is dated 20 January 2009, Ms C indicates that her area of expertise is as a psychologist who specialises in sport and exercise. As such, she is not qualified to comment on [X]’s syndrome.
However, she observed both [X] and [Y] to be comfortable in their father’s presence and to enjoy his company. Ms C considered that
Mr Weaver expressed his love for both children openly and appropriately and his involvement in their sporting and school endeavours was not something which caused her concern. Both children had apparently indicated to Ms C, in the past, that they enjoyed living with their father.
Ms C described [X] as follows:
“… [X] is an empathetic child and wants to please both his mother and father. When asked to partake in something which he considers hurtful to a parent, [X] can worry about the outcome and as a result experience symptoms of stress.”
Mr Weaver is sceptical and suspicious about the contents of Ms D’s affidavit, which he believes is essentially orchestrated by the mother. He believes that Ms D is essentially doing the mother’s bidding and has no qualms about placing [X] under intense psychological pressure, so he will, in effect mouth the mother’s line in this case. In such circumstances, he asserts that Ms D’s evidence is biased and lacks any probity whatsoever.
It is Mr Weaver’s case that [X] was rendered emotionally distraught by his conversation with Ms D, particularly the suggestion that he would be required to tell some new court appointed expert that he wished to spend less time with his father in future. It is Mr Weaver’s case that Ms Eddy and Ms D have been hectoring [X] in regards to this issue, a state of affairs which [X] has reported to him and which is in direct contravention of an order made by me that neither party was to discuss these proceedings directly with the children concerned. In these circumstances, he is indignant that Ms D took it upon herself to discuss any aspects of his parenting directly with [X].
In support of his position that he is a committed and competent parent, Mr Weaver has obtained a number of testimonials. These include a letter from his brother-in-law, Mr P who deposes as to Mr Weaver’s positive relationship with [X] and [Y] and the enthusiasm the children have for the sporting activities in which they engage with their father. As previously indicated, Mr Weaver has also obtained similar letters from a number of children’s sporting coaches.
Mr Weaver’s position can be summarised as follows. The conflict between the parties is endemic and longstanding. Certainly it pre-dates the orders of 2005. He asserts that the conflict is largely being driven by the mother as he is now resiled to the current care arrangements for [X] and [Y].
In such circumstances, he asserts no new circumstances have arisen, of such moment, which can justify the court’s reopening of any parenting issues to do with the care of [X] and [Y]. In particular, he is resolutely opposed to their being any fresh family assessment in this matter, as he asserts it will be nigh on impossible for any independent expert, no matter how diligent and skilled, to obtain any impartial and accurate expression from the children as to their true views.
Rather, such a process will unnecessarily prolong the current level of emotional pressure on the children, particularly [X], who will have been placed in the invidious position of having to play favourites with their parents, as the mother will be unable to restrain herself from exerting some form of influence on the children, who do not wish to express any particular form of preference between their parents knowing the storm such an expression will precipitate.
In his most recent affidavit, Mr Weaver deposes as follows:
“…. one of the reasons I don’t want this litigation to continue as I believe that the boys will be dragged into emotional distress by any further litigation.
If there is any more litigation in court the children will go on a downward spiral emotionally which will negatively affect their sport and schooling. They don’t need it and they need to get on with their lives as young children. The mother will harass and punish the children. She will tell them what to say to Health Professionals ” [5]
[5] See father’s affidavit filed 16 February 2009
The legal principles applicable
In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration. As the circumstances of both parents change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.
However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited. Otherwise to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.
The primary purpose of the rule is to prevent “endless litigation”[6] and is based on three main pillars. Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”[7].
[6] See Rice & Asplund (supra) per Evatt CJ at 78,905
[7] See SPS & PLS (supra) at paragraph 56
Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer, on the basis of the same factual circumstances.[8]
[8] Ibid at paragraph 58
Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led. The rule negates this potential outcome.
Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. Litigation is not helpful to children. It is desirable that arrangements for their care be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[9]
[9] See CDJ v VAJ (1998) FLC 92-828 at 85,449
In addition, if the court allows parents to have frequent recourse to litigation to settle disputes between them regarding parental arrangements, it is likely to have significantly harmful psychological consequences not only for the parents themselves, but especially their children. It has been said that the court should not condone a “perennial football match between parents, who … seek to canvass again and again the question of custody of a child …”.[10]
[10] See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS (supra) per Warnick J at paragraph 57
It is clear from authority that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances, to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either as a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[11]
[11] See Bennett & Bennett (1991) FLC 92-191 at 78,262
However, as Warnick J pointed out in SPS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage. If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.[12]
[12] See SPS & PLS (supra) at paragraph 59-60
Given that the court will often be called upon to apply the principal expressed in Rice & Asplund at a preliminary stage, without any full exploration of the parties’ concerned evidence, care must be taken with its application at such a stage. It is not a rule which is to be applied formulaically. Rather, the court must examine the evidence available and determine whether, at its highest and without determining is veracity, such evidence demonstrates a sufficient change of circumstance to justify the court embarking upon a full and exhaustive hearing.
Warnick J put it as follows:
“…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”[13]
[13] Ibid at paragraph 81
Accordingly, at the initial stage, the application of the rule will inevitably involve the balance of competing considerations. One parent will assert that any proper consideration of the best interests of the child concerned demand some further form of inquiry from the court. The other parent will assert that such a further inquiry will, of itself, inevitably have deleterious consequences for the child concerned. The difficulty being for the court that, in the absence of any concluded examination of the evidence likely to be available to it, the court will be unable to determine, except perhaps by conjecture, where the balance falls. Essentially, it may not be an issue which can be determined “on the papers” alone.
It will frequently be the case that there is much controversy between the parents concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings. This issue must be determined within the matrix of Part VII of the Family Law Act 1975. The question essentially being whether it is likely to be in the children’s best interests to allow further litigation. In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation between their parents.
In arriving at its decision, the court must look to the following matters:
·The importance or seriousness of the issues raised, both individually and where necessary collectively;
·The impact that the issues are likely to have on the best interests of the children concerned;
·Whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.
The test is a strong one. The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties. That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made. That would be putting the test too strongly. Rather, the change of circumstances must be such that there is a “real likelihood” of a change. [14]
[14] See King & Finneran (2001) FLC 93-079 at 88,367
In SPS it was said that the “essential question” for the court to pose itself concerned the “sufficiency” of the new events, which were said to precipitate the need for a new inquiry. In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps, which might follow from them.[15]
[15] Ibid at paragraph 84
The Family Law Act has been significantly amended since the final orders were made in this case in November of 2005 by the Family Law Amendment (Shared Parental Responsibility) Act2006, which came into force on 1 July 2006. The rule in Rice & Asplund remains applicable post the amending Act but the inauguration of the Act of itself is specifically directed not to constitute a “change of circumstance”.
However, along with significant changes to the objects and principles of the Family Law Act, pertaining to children, through the amending Act, the legislature has also made significant directions as to how courts, such as this one, are to conduct “child-related proceedings”. These amendments are contained in Division 12A of Part VII of the Act.
Pursuant to section 69ZN the court is required to give effect to a number of principles, whilst exercising jurisdiction in proceedings concerning children. These principles are as follows:
a)The court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings.
b)The court is to actively direct, control and manage the conduct of proceedings.
c)Proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect.
d)Proceedings are to be conducted in a way the will promote cooperative and child-focused parenting.
e)Proceedings are to be conducted without undue delay, formality and legalism.
Pursuant to section 69ZQ, the court is provided with a number of duties in order to enable it to give effect to these principles. It may:
a)decide which issues require full hearing and which may be dismissed summarily;
b)decide the order in which issues are determined or what steps should be taken to determine issues;
c)in deciding whether or not a particular step is taken, consider the cost implications of such a step;
d)use appropriate technology;
e)use family dispute resolution or family counselling where appropriate;
f)deal with as many aspects of the case as possible on a single occasion and if appropriate without the physical attendance of the parties.
As a corollary to these duties, the court is provided with a number of powers pursuant to the provisions of section 69ZR. At any time in child related proceedings, it may:
a)make a finding of fact;
b)determine a matter arising out of proceedings;
c)make an order in relation to an issue arising out of proceedings.
These various principles and duties have been collectively described as being procedures designed to make proceedings in regards to children “less adversarial”. Again, like the rule in Rice & Asplund, they are directed to enhancing the best interests of children.
In enunciating the principles, the legislature recognises that unduly protracted litigation regarding children is usually not helpful to the children, who are the subject of such litigation and certainly does not encourage those who are involved in their care to have a cooperative or collaborative approach towards their parenting.
Litigation regarding the parenting of children is liable to be expensive, in both financial and emotional terms and, at its end, the parties to it are likely to remain in a close familial relationship, unlike the parties to other litigation, such as an action about a contract or a tort. In the former case the parties must patch up their relationship, if they can, at the end of the proceedings and attempt to parent their children in a constructive manner. In the latter case the parties may choose never to see one another again and so the quality of any future relationship between them is of no moment.
The principles outlined in Division 12A recognise that it is in the best interests of children that those involved in their care avoid, as far as possible, the deleterious consequences of litigation, which is rarely a constructive process, as it is often focussed on finding fault and emphasising the failings of the other party concerned and so does little to foster constructive parent relationships.
The principles seem to have the following objects: courts are directed to discourage unnecessary litigation; closely manage that litigation which cannot be avoided; focus the minds of the parties concerned on the potential harm, which may be occasioned to children by such litigation through the perpetuation of parental conflict; and consider the fiscal implications, both private and public, in the conduct of such litigation.
This list is not intended to be an exhaustive one. At the same time, the court is cautioned against overlooking the need to conduct proceedings in a way which will maximise the protection of children from harm to them arising from neglect, abuse and family violence.
The principles seem to be directed to allow the court to fetter, to some degree, the freedom provided by a classic adversarial system of parties being able to investigate every issue which may possibly be of some interest to them. In the vernacular, the abrogation of the freedom “to chase every rabbit down every hole”, in the hope, often vain, that something which may advances a party’s cause will turn up through such an exercise. At the same time, the court is reminded that its essential raison d’etre is the welfare of children and such considerations should not be sacrificed on the altars of pragmatism.
In some cases, these ends may come into conflict. This may be particularly so in cases where one party has a particular difficulty in accepting the validity of a long existing state of affairs or has a propensity “to cry wolf” on the slightest of pretexts.
Conclusions
[X] and [Y]’s best interests are the paramount consideration in this matter. As has already been indicated, the rule in Rice & Asplund is a reflection of the paramountcy principle. It is not likely to be in the best interests of children that the litigation surrounding arrangements for their care should be unnecessarily prolonged or that issues, once determined, should be easily revisited or subject to potentially endless challenge, in subsequent proceedings.
The principal set out in division 12A of the Family Law Act 1975 direct the court to ensure that any of its proceedings, concerning children, are conducted in as non-adversarial manner as possible. Rather, the court is to ensure that its proceedings are “child focussed”. This means that parents do not have an unfettered right to pursue issues in respect of their children, which are of interest to them alone but potentially corrosive to the best interests of the children affected.
As a result, there must be a fundamental nexus between the issue raised and the best interests of the child concerned. Unlike other civil proceedings in this country, proceedings between parents are not strictly adversarial. This is because the outcomes of such proceedings affect the interests of third parties, who are not, strictly speaking, actual parties to the proceedings themselves. These persons are, of course, the child or children of the parents, who bring the proceedings.
Accordingly, the court has a discretion to determine whether an application should be dismissed, pursuant to the rule, as a discrete issue, prior to the detailed gathering of any evidence or after a full hearing of all the relevant issues. The circumstances of each particular case must determine in what way the discretion is to be exercised. Again fundamentally, the court’s consideration of how the child concerneds interests will be best served, must inform how the discretion is ultimately discharged.
In addition, to apply the rule too late may result in the respective parenting positions of the parties being subjected to the greatest degree of polarisation, which of itself may be detrimental to the children concerned. Certainly such polarisation would not be an outcome conducive to the parties having a consensual basis for parenting their children in future.
How the balance is struck depends on the circumstances of each individual case. Most fundamentally, hinging on the gravity or weight of the issue raised in the fresh proceedings. Collier J in King & Finneran[16] characterised the quality of such an issue in terms of it being one which, once raised, the court had no option but to embark on a re-litigation of arrangements for the care of the child or children concerned. Given that formulation, it is clearly a strong test.
[16] King & Finneran (2001) FLC 93-079
Accordingly, it may be open to the court to dismiss the mother’s application, on the basis of the application of the rule in Rice & Asplund, not only at a preliminary stage but also after it has heard all the evidence, which is likely to be available in the case. Essentially, the application of the rule, particularly at which stage it is to be applied, is a balancing exercise.
In this case, the central evidentiary controversy between the parties concerns [X]’s views regarding the current arrangements for his care. Is he emotionally stressed by these arrangements and desirous of a change or, to the contrary, is he sanguine about these arrangements and being pressured by his mother to say otherwise because of some ulterior motive on her part.
In my view, the essential complexity of this issue does not make it one amenable to being determined simpliciter on the basis of the court’s consideration of “the papers” alone. In addition, given the structure of the Family Law Act, the nature of the issue is likely to be central to any proper consideration of [X]’s best interests.
The best interests of any child are the paramount consideration in the court making any parenting order [see Family Law Act 1975 at section 60CA]. How a court determines what is in a child’s best interests is through a consideration of the various matters set out in section 60CC. The individual circumstances of each case will dictate which particular considerations are to be given pre-eminence.
Pursuant to section 60CC(3)(a) the court is directed to consider:
“Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;”
The mother has squarely raised this particular criterion as being central to the advancement of [X]’s best interests at this stage and has asserted that the current regime does not fall into line with [X]’s strongly held views. [X] is approaching his twelfth birthday. By necessary implication, it is the mother’s contention that he is a mature and insightful child, particularly in terms of his preferences so far as the time he spends with his father is concerned.
It is the father’s position that the mother is a disingenuous and manipulative person, who has pressured [X] as to what he should say to Dr B in particular. This may ultimately prove to be the case but I cannot determine the issue on the basis of a consideration of the parties’ competing applications alone. Essentially accepting the father’s assertions at face value and dismissing those of the mother.
However, notwithstanding the father’s criticisms of Dr B’s report and the process through which he came to interview [X], it cannot be said that there is no basis whatsoever for the mother’s contention that [X] is expressing a significant level of discomfort with the current care regime.
Dr B is a child psychologist. He spoke to [X]. Although it would have been better that Mr Weaver be involved in this process, the reality of the parties’ parenting relationship is such that it is unlikely that they would have been unable to agree on such an intervention or more pertinently whether such an intervention was justifiable.
In addition, given the unacceptably high level of conflict between the parties and the sensitivity and vulnerability of [X] himself, the issue, of itself, is one of some subtlety and complexity. As such, in my view, it is not one which is amenable to what is in effect an application for summary dismissal.
It is true that the parties’ poor and conflicted relationship with one another is not a fresh circumstance. It was obvious to me in 2005 and, as I hypothesised at the time, the parties’ relationship with one another is unlikely to ever resolve satisfactorily. However, the new fact or circumstance, on which the mother seeks to rely, is not the parties’ poor relationship with one another alone, rather it is the signs of stress, which [X] is said to be currently exhibiting as a result of it.
In my view, this is an issue which is likely to be central to the service of [X]’s best interests. It goes to his level of psychological functioning. It is not an issue which can be determined by a consideration of affidavit material alone, particularly what different psychologists have opined and what opposing allies of each of the parties have asserted.
In my view, it cannot be said to be a far fetched proposition or one which is inherently unlikely that [X] is, as the mother contends, unacceptably stressed at present by the ongoing arrangements for his care.
At this stage, I do not have to either accept or reject the mother’s case in total or in part. Rather, I must consider whether, at its highest, her position justifies the court taking further steps, one of which may ultimately prove to be a full merits hearing between the parties.
The mother’s case involves the following propositions:
·The parties parenting relationship is poor;
·[X] is not currently responding well emotionally to this situation;
·A suitably qualified expert has opined that the child’s apparent emotional distress warrants some revisitation of his care arrangements.
I acknowledge that each of these assertions cannot be definitively established, at this stage, to the pre-requisite standard of proof required in these proceedings. However, it is not possible for me to reject any of these propositions, notwithstanding the father’s forceful contentions to the contrary.
As Warnick J put it, the issue for the court in determining whether to dismiss an application relating to a child at a preliminary stage is whether to permit the litigation to proceed further is likely to be a more powerful issue so far as the child’s best interests are concerned than the issue raised in the new litigation itself.
This is not always an easy issue to determine, particularly at a preliminary stage, which necessary precludes a full consideration of all possible evidence. Necessarily, it must also hinge on the essential moment of the particular issue raised.
In this case, I am satisfied that the issue which the mother raises is one of some moment, so far as [X]’s best interests are concerned. I do not think that either his emotional wellbeing or his views, given his current age, can be said to be issues of no consequence so far as the court is concerned.
What are [X]’s precise views, about his future care arrangement, is not known to me. Indeed he may not have any concluded view, for all I know. What I do know is that the issue is surrounded in controversy, so far as the parties are concerned. A controversy which I cannot resolve in the context of the truncated hearing which took place on 16 February 2009.
However the issue of his emotional functioning, within the context of his parents’ difficult relationship, is, in my view, of such moment that the court would be derelict in its duty if it summarily dismissed the mother’s contention that [X] is an unhappy and stressed child without some further form of inquiry.
The court must always consider the possible deleterious consequences, for a child, of him or her being exposed to unnecessary litigation. This, of course, is the import of both the rule in Rice & Asplund and the provisions of Division 12A of the Family Law Act. The father’s contention is that the further prolongation of the litigation between the parties can only have deleterious consequences for the children.
In this regard, he has two major contentions. Firstly, the mother has focussed primarily on [X]. As a consequence he contends the potentially deleterious consequences of more litigation may be exacerbated for [Y], who will be inevitably drawn into the process, perhaps unnecessarily.
Secondly, given the dynamics of the parties’ relationship and the number of experts who have already been involved, it may be impossible for any expert to ascertain [X]’s views and what is affecting them with any degree of intellectual rigour. As such, it may be better “to let sleeping dogs lie” in this regard.
Again, at this juncture, I am not in a position to ascertain the probability of either of these predictions coming to pass. Again, they must be balanced against the gravity of the issues raised by the mother.
Essentially, the father contends that the issues are of no great moment because the parties’ poor relationship will remain and both children are likely to continue to spend extensive periods of time with both their parents, regardless of whatever any family report has to say.
As such, he contends that the mother’s application is merely an invitation to the court to “tinker” with how time is allocated between the parties and not to make any changes of substance so far as care arrangements for the children are concerned. As such, the continuation of the litigation cannot be sanctioned.
I do not necessarily agree. The level of conflict in the parties’ relationship is both obvious and unacceptably high. There may ultimately prove to be no solution to this conflict. However, it is likely to remain a significant issue for both children, particularly [X]. In my view, it is not open to the court to abrogate its responsibility to inquire into the implications of this issue, once it has been raised, merely because the issue is complex and provides no ready or obvious solution at the outset.
The court, at this stage, need not be persuaded that automatically there must be a change to the pre-existing arrangements, as a result of any new circumstance raised but it must be satisfied that there is “a real likelihood that [such] a change may follow”.[17] I think there is such a likelihood of change in this case. What that change will be is unclear. Certainly the mother is unable to delineate it with any degree of precision at this stage.
[17] See King & Finneran (2001) FLC 93-079 at 88,368
I cannot fail to be impressed with what Ms Hewett said in 2005 regarding [X]’s perception that he was in the centre of the dispute between his parents. This was an issue which was taken up, to some extent, in the report prepared by Ms C, who summarised conversations with [X] in which he stated he felt emotionally torn.
Obviously, in this context, there is some risks inherent in allowing any further litigation. However, in my view, there is also a risk in the court not attempting some further investigation of these issues, particularly given that the mother has enjoined the jurisdiction of the court. Essentially, I am concerned that it may be an abrogation of the court’s responsibility to promote [X]’s best interests if it meekly accepts that the conflict between his parents is endemic and there is little, if anything, which can be done about it.
At this juncture, it is difficult to gauge, with any degree of certainty the likely impact of the further litigation on either [X] or [Y]. Similarly, it is impossible to ascertain what will be the possible emotional consequences for [X] if Dr B is correct and he is currently suffering emotional stress, as a result of his current living arrangements and nothing is done about them.
In my view, the most practicable way to reduce the potential deleterious consequences of further litigation on the children is to adapt the mother’s proposal that a family assessment report be prepared. Certainly this was Dr B’s expert opinion. Such an assessment could include input from Mr Weaver.
The preparation of such a report will strike a balance between the competing positions of the parties. The children can be interviewed by an impartial expert with input from both parties. Most importantly the court will be provided with more evidence, independent of each of the parties, on which it will be more able to determine whether the service of the children’s best interests dictate that there should be further litigation regarding arrangements for their care.
In all the circumstances of this case, at this juncture, as she is the instigator of such an assessment, I consider that Ms Eddy should bear the cost of the provision of the report, particularly given Mr Weaver is so vehemently opposed to it. At this stage, I consider this to be a just and appropriate outcome.
Pending the provision of the report, I do not propose to revisit the current living arrangements for the children, for the reasons I have earlier provided. Given this state of affairs, I believe it is premature to deal with the father’s application for security for costs.
Neither party is a person of extensive financial means. As such the prolongation of these proceedings represents a significant impost for them both. Up to this stage, neither the mother nor the father can be said to have been wholly successful in respect of the position which each has advocated. The mother has not had the existing orders modified. The father has not been successful in having the mother’s application dismissed.
Rather, as a prelude to a possible deeper inquiry, I have elected to gather further evidence regarding the emotional wellbeing of the two children. At this stage, I have insufficient information to enable me to conclude, one way or the other, whether the mother’s application is made bona fide or indeed whether the father’s application for security of costs is an attempt to stifle otherwise important litigation so far as the best interests of [Y] and [X] are concerned.[18] The family assessment may shed light on both issues.
[18] See Luadaka v Luadaka (1998) FLC 92-830
I anticipate it will take around twelve to fourteen weeks for the family assessment to be prepared. Ms Hewett, given her previous involvement with the family, is the appropriate expert to prepare the report. Accordingly the matter will be listed for further directions on 30 June 2009 at 9.30am.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 19 March 2009
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