FINTON and KIMBLE

[2020] FCWA 7

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FINTON and KIMBLE [2020] FCWA 7

CORAM: SUTHERLAND CJ

HEARD: 28 OCTOBER 2019

DELIVERED : 10 JANUARY 2020

FILE NO/S: PTW 2493 of 2014

BETWEEN: MR FINTON

Applicant

AND

MS KIMBLE

Respondent

Catchwords:

CHILDREN - Application to spend time with children - Rice and Asplund - Change of circumstance not established - Application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

Carriel & Lendrum (2015) FLC 93-640

Finton & Kimble [2017] FCWA 106

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251

Marsden v Winch (2009) 42 Fam LR 1

Miller & Harrington (2008) FLC 93-383

Pelerman v Pelerman (2000) FLC 93-037

Rice & Asplund (1979) FLC 90-725

Searson & Searson (2017) FLC 93-788

SPS and PLS (2008) FLC 93-363

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finton & Kimble has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Introduction

1The respondent mother seeks that the applicant father’s most recent application for parenting orders in relation to their two young daughters be dismissed without the need to proceed to a final hearing.

Background facts

2The parties formed a relationship in 2009 and were married [in] 2011. Their first child was born in 2012, followed by their second child in 2013. The parties separated in December 2013. At the date of separation, the oldest child was only 14 months old and the youngest child was only three months old. After separation the children remained in the mother’s primary care and had limited opportunities to develop any relationship with the father.

3The father commenced parenting proceedings in May 2014. In June 2014 the court made orders for the father to spend very limited supervised time with the children. An independent children’s lawyer ("ICL") and a single expert witness were appointed in the case.

4The matter proceeded to a defended trial over seven days in June 2016. In short, the orders sought by the father at trial were that the parties have equal shared parental responsibility for the children, the children live with the mother and spend defined regular time with the father. On the other hand, the mother and the ICL both sought orders that the mother have sole parental responsibility for the children, they live with the mother and have no time with the father. The trial judge published his reasons for decision and made final orders on 24 August 2017.

2017 reasons for decision

5The salient findings in the reasons for decision[1] were as follows:

[1] Finton & Kimble [2017] FCWA 106.

6The relationship between the parties was described as being one of significant conflict and domestic upheaval. After separation the mother became concerned about the father’s conduct and considered that she and the children could be at some risk from him. Nevertheless, in the early months after separation, she did facilitate the children spending some limited time with the father.[2]

[2] Finton & Kimble [2017] FCWA 106, [6].

7In the period following separation, the father’s life descended into turmoil and conflict. There was evidence of significant hostility, anger and threatening behaviour directed by the father towards a wide range of people and institutions. He targeted the mother and anyone he thought was either supporting her or opposing him, including the maternal grandparents, his own father, the mother’s lawyer, the ICL, Legal Aid Western Australia, the single expert witness, the court and some of its judicial officers and non-judicial staff. The level of conflict the father generated in his own workplace also led to him being temporarily stood down from his employment and referred for therapy.[3]

[3] Finton & Kimble [2017] FCWA 106, [9].

8The ICL became so concerned about the father’s behaviour that, in August 2015, he made an application to suspend the father’s supervised contact with the children. On 27 August 2015, the court made an order suspending the father’s time with the children. The father has not seen the children since approximately August 2015.[4]

[4] Finton & Kimble [2017] FCWA 106, [12]

9The trial judge found that the mother was a very capable parent, who had provided good care of the children, often in most trying circumstances. The mother was a credible and reliable witness and her evidence should be given very significant weight.[5]

[5] Finton & Kimble [2017] FCWA 106, [62] – [63].

10The trial judge found that the mother had been greatly damaged by the relationship she had endured with the father, by the events surrounding separation and by the father’s conduct in the three years between separation and the conclusion of the trial. From time to time, the mother presented as extremely fragile and anxious, particularly when she was confronted by the need to deal with the father and his behaviour. She had become hypervigilant, and deeply concerned about the ongoing involvement of the father in her life and the lives of her children. The trial judge was satisfied that the mother’s fears were genuine, and born of legitimate concerns for the children – and were neither feigned nor exaggerated.[6]

[6] Finton & Kimble [2017] FCWA 106: [64].

11The father’s psychiatrist, [Dr R], treated the father between September 2015 and the date of the trial. At the time of the trial, Dr R’s diagnosis of the father remained incomplete and uncertain. In his first report dated November 2015, he identified a number of possible psychiatric conditions, including adjustment disorder with depressed and anxious mood, major depressive disorder, and bipolar affective disorder. He observed that the father had poor impulse and anger control. In his second report dated June 2016, Dr R recommended the father continue with his treatment and also undergo regular drug testing.[7] During his oral evidence Dr R initially considered that there were signs the father had made some positive progress. However, Dr R changed his view when presented with evidence of some of the father’s behaviours of which Dr R was, until then, unaware. Subsequently, Dr R was recalled to give evidence on further matters, particularly some emails sent by the father to the ICL during the trial. Dr R was very troubled by the emails and considered that they were indicative of the father suffering episodes of psychosis. He speculated that such psychosis could be organic, or marijuana-induced or of some other form. Dr R also raised the possibility of the father having some form of delusional disorder.[8]

[7] Finton & Kimble [2017] FCWA 106: [83] – [86].

[8] Finton & Kimble [2017] FCWA 106: [88] – [90].

12The father admitted that he had deliberately misled a wide range of professionals involved in assessments for the case or his own treatment. The father’s testimony included admissions that he had lied to, or misled by omission, Dr R, his treating doctor, his treating clinical psychologist and the single expert witness.[9]

[9] Finton & Kimble [2017] FCWA 106, [77].

13The trial judge found that the most charitable description of the father’s presentation, testimony and conduct during the trial was that it was “confused and troubling”. Put less charitably, the father’s presentation radiated unreliability, attempted manipulation and almost pathological dishonesty. Either way, the trial judge was unable to give weight to anything the father said, including the father’s expressions of contrition and reassurance.[10]

[10] Finton & Kimble [2017] FCWA 106, [75].

14The trial judge found that the single expert witness’s report was comprehensive, considered and persuasive. This included the expert’s opinions that: (1) the mother’s extreme fears and anxiety were justified and that the father’s behaviours stemming from his personality disturbance, mental health and/or brain dysfunction has and will continue to impact his parenting capacity; and (2) the mother and the children were at very high risk of psychological abuse, ongoing harassment and potential serious violence from the father.[11]

[11] Finton & Kimble [2017] FCWA 106, [98] – [103].

15The trial judge made a number of specific findings about the father including that:[12]

a)The father’s conduct and presentation over a number of years disclosed an “entrenched pattern of abusive behaviour over a significant period of time”.

b)Aside from the conflict associated with the parties’ relationship, there was evidence of the father being involved in many conflicts over the years, including in his workplace dating back many years.

c)Much of the conflict in the parties’ relationship was due to the father’s belittling, controlling and bullying behaviour towards the mother. Particularly at the time of separation, the father also behaved in a violent, threatening and verbally abusive manner to the mother.

d)It seems very likely that the father suffers from some form of mental health issue, which may be compounded by a personality disorder or disorders. The nature and extent of these problems remained unclear. In the absence of a clear and confident diagnosis, satisfactory treatment and management processes cannot be identified. Accordingly, the prognosis for the father is uncertain.

e)Given the history of the father’s conflictual behaviours and the fact that the medical, psychiatric or psychological causes for such behaviours remain unclear and untreated (and effectively untreatable), the most likely scenario is that the father will continue to behave in a similar manner for the foreseeable future.

[12] Finton & Kimble [2017] FCWA 106, [109].

16The trial judge was satisfied that the mother had a genuine (and understandable) belief that exposing the children to the father would be of no benefit to them. Similarly, the mother genuinely believed that contact between the father and the children would amount to an unacceptable risk to their psychological and emotional wellbeing.[13] In particular, the trial judge:

a)Was satisfied that any order which required the mother to place the children in the care of the father, or required the children to spend time or communicate with the father, is likely to cause the mother significant psychological detriment – and, in turn, psychological harm to the children.[14]

b)Was not comfortably satisfied that there was an unacceptable risk of psychological or emotional harm to the children if they have contact with the father. However, the trial judge was certainly satisfied that the mother genuinely believed that such a risk exists and that should contact be ordered, this belief will have a significant and detrimental impact on the mother’s capacity to effectively parent the children. Any form of contact would be inimical to the children’s best interests.[15]

[13] Finton & Kimble [2017] FCWA 106, [119].

[14] Finton & Kimble [2017] FCWA 106, [120].

[15] Finton & Kimble [2017] FCWA 106, [144].

17The trial judge accepted the evidence of the mother’s clinical psychologist, [Dr S], and the single expert witness in relation to the mother’s anxiety and hypervigilance regarding the father. In particular, the single expert witness opined that the mother simply could not cope with the thought of having the father in her life, her fears in this regard were genuine and her wishes understandable. The trial judge considered that having regard to the totality of the evidence, the mother’s views in this regard were understandable.[16]

[16] Finton & Kimble [2017] FCWA 106, 146] – [151].

18The trial judge considered that if the father had the capacity to modify his conduct and regain the trust of the mother and if he had the capacity to focus positively and constructively on his relationship with his daughters, then the children may well cope with a resumption of time with the father. However, neither the court nor the mother could have any confidence that the father will obtain or maintain those capacities in the foreseeable future. To override the mother’s concerns and impose a contact arrangement against her wishes would be likely to heighten her stress, anxiety and hypervigilance and undermine her capacity to function and parent effectively. Such an outcome would not be in the children’s best interests.[17]

[17] Finton & Kimble [2017] FCWA 106, [168].

19The trial judge concluded that it would not be in the children’s best interests to spend any time with the father. This would enable the mother to continue to provide quality care of the children without risk of psychological or emotional distress.[18]

[18] Finton & Kimble [2017] FCWA 106, [193].

20However, the trial judge was not satisfied that it was in the children’s best interests to shut the door completely on the father having some ongoing relationship with them. In particular, the trial judge accepted that as the children grew older and with the passage of time, one or both of the children may seek out the father to explore the possibility of a relationship at some level. To that end, the trial judge considered it in the children’s best interests that the father be kept informed of the children’s progress and any important developments in relation to their health, education and welfare.[19]

[19] Finton & Kimble [2017] FCWA 106, [194].

21The trial judge also acknowledged that if the father was able to recognise, confront and deal with his problems, then it was at least possible that the court may be prepared to revisit the subject of his contact with the children at some point in the future. However, it was likely to be a slow and arduous process and require the rebuilding of trust, “in the sense that the [father] will be obliged to demonstrate to the Court (and to the [mother]) that he can be trusted as a mature, reliable, honest and responsible parent: one who is prepared to shield the children from family violence and inappropriate behaviour, and allow the children to love and respect their mother and other significant adults in their lives (and have a full – and meaningful – relationship with them)...”[20]

2017 final orders

[20] Finton & Kimble [2017] FCWA 106, [198].

22On 24 August 2017, the court made final orders pursuant to judgment, including that:

a)The mother have sole parental responsibility for the children;

b)The children live with the mother;

c)The father neither spend time with nor communicate with the children, save as may be subsequently ordered by the court or agreed to in writing by the mother; and

d)The father be restrained by injunction from approaching within 100 metres of the children, contacting or communicating with the children in any manner whatsoever, attending at the children’s schools and/or any other venue regularly attended by the children, approaching within 100 metres of the mother and attending at the mother’s home and/or place of employment and/or any other venue regularly attended by the mother.

The 2018 proceedings

23The applicant re-instituted parenting proceedings in February 2018. He sought a final parenting order that he spend unsupervised time with the children each week from 5pm Fridays until 6pm Sundays (with the mother to deliver the children to, and collect the children from, his home); and interim orders that he spend unsupervised time with the children for four hours on each of Saturdays and Sundays each week, (again with the mother to deliver the children to, and collect the children from, his home).

24In summary, in his Case Information Affidavit filed in support of his application, the father deposed that since the trial, he had “found Jesus” and now attends church regularly, he has ceased abusing cannabis, he has forgiven those whom he had previously sought “revenge against”, and he is remorseful for the pain and hurt he caused the mother and wishes to rebuild a mutually respectful and trusting relationship with her.

25At the first return date on 16 April 2018, the father appeared in person and the mother appeared by telephone. I made orders: (1) granting the father liberty to file and serve a neurological report, a psychiatric report and a hair strand drug analysis test report for the detection of cannabinoids for a testing period of 3 to 6 months; (2) granting the father liberty to provide copies of the 2017 reasons for decision and final orders to his psychiatrist; and (3) making a standard finalisation order for 31 December 2018.

26In August 2018, the father filed a number of documents with the court, including:

a)A letter from a drug testing agency dated 23 April 2018 stating that the father did not have any hair on his head, the agency was unwilling to test any other body hair, and recommending that the father consider a program of urinalysis testing;

b)Five drug urinalysis drug test reports for tests done by the father in April, May, June and July 2018; and

c)A report from Dr R dated 17 July 2018.

27The report from Dr R revealed that the father attended upon him from September 2015 until January 2017. The father then re‑engaged with Dr R in 2018. As at the date of the report, the father had attended on Dr R for appointments in April, May, June, July and August 2018.[21] Dr R stated that the father’s reported mental health “was stable with no features suggestive of any depressive psychopathy, psychosis or mania. He was said to be clean of any illicit substances… His mood was assessed to be normal…”

[21] The attendance in August 2018 appears to post-date the report itself, which is dated 17 July 2018.

28At the next hearing date on 12 October 2018, the father again appeared in person and the mother by telephone. I made an order dismissing the proceedings and on the basis that in the event the father sought to file a further parenting application, then he provide a psychiatric report and hair strand drug analysis tests for the detection of cocaine and cannabinoids for a testing period of 6 months.

The current proceedings

29On 6 May 2019, the father commenced the current proceedings. The father sought final orders that he spend time with the children from Fridays to Sundays each week; and an interim order that he have supervised visits with the children for four hours every Saturday. In accordance with my orders made in October 2018, the father also provided an updated report from Dr R dated 17 April 2019, two hair strand drug tests covering the period from approximately September 2018 to April 2019, and a number of references, including from his employer, his current partner and his church pastor.

30The mother filed her responding documents in June 2019, seeking that the father’s application be dismissed “as a preliminary issue”. The mother annexed to her affidavit a report from her psychologist Dr S dated 24 May 2019 confirming that: (1) she had been treating the mother since December 2012; (2) the father’s recommencement of the parenting proceedings had been very distressing and anxiety provoking for the mother, including the mother reporting difficulties with sleep, feeling physically unwell, low mood and symptoms of anxiety and stress. The mother reported increased concerns regarding her safety and the children’s safety.[22]

[22] Mother’s affidavit filed 5 June 2019, page 6.

31At the first return date on 19 June 2019, I made various procedural orders, including: for each party to file affidavits and for the issuing of subpoenas to produce documents. In August 2019, the mother issued subpoenas to produce documents to Dr R and to the drug testing agency that conducted the hair strand tests.

32The father filed a number of affidavits on 30 July 2019. Firstly, the father filed an affidavit of himself, the salient parts of which were as follows:

a)The father was a drug addict from 2014 until 2017. He ceased using cannabis in December 2017.

b)The father starting attending his local church in September 2017 and now has an ongoing significant involvement in the church.

c)The father is now in full-time employment, having commenced with his employer in January 2018.

d)The father recommenced attending on Dr R in February 2018 and continues to attend upon him regularly.[23]

e)The father has been in a steady relationship with his girlfriend [Ms A] since May 2018.

[23] I observe that the father’s evidence in this regard is contradicted by Dr R’s report, which indicated that the father resumed treatment in April 2018.

33Secondly, the father filed an affidavit of Dr R. In addition to annexing copies of his July 2018 and April 2019 reports, Dr R also annexed an updated report dated 5 July 2019, in which he opined that the father has: “a history of possible drug induced psychosis in the past few years ago. I have not elicited any signs or symptoms of depression/mania or psychosis during the last 16 – 18 months.”

34Thirdly, the father filed an affidavit of his brother, who resides [in the Eastern States], attesting to his understanding of the positive changes the father had made to his life since joining his local church in late 2017.

35Finally, the father also filed affidavits of his employer, former church pastor, and current church pastor. Each of the witnesses deposed to having known the father since late 2017 or early 2018 and attested to his good character.

36On 5 September 2019, the mother filed a number of affidavits. Firstly, the mother filed an affidavit of herself, the salient parts of which were as follows:

a)The ongoing court proceedings have caused the mother deep distress and anxiety. She feels “panicky” at the prospect of the father coming anywhere near the children and is fearful that the applicant may harm the children as further retaliation against her.

b)The mother’s distress and anxiety have detrimentally impacted on her mental and physical health and also had a detrimental impact on her capacity to care for the children. This has included the mother: (1) suffering from stress related eczema in 2019; (2) becoming so anxious and distressed after attending court by telephone in June 2019, that she had to leave her workplace and get family assistance to care for the children; and (3) having to attend the emergency department of a hospital in August 2019 for stress‑related chest pain and breathing difficulties.

c)At times, the children have become distressed and upset when they observed the mother to be distressed and upset.

d)The mother continues to strongly believe that the children would be at risk if exposed to the father, due to his abusive nature and propensity to lie and manipulate others.

37Secondly, the mother filed an affidavit of Dr S. The salient parts of her affidavit were as follows:

a)After the court proceedings were concluded in 2017, the mother reported feeling safe, did not have any significant issues with anxiety and Dr S had no further contact with the mother until May 2018. The re-institution of the proceedings around that time triggered significant anxiety in the mother. The mother reported being highly stressed, anxious and fearful for her and the children’s safety. The mother reported panic attacks, crying “all the time” and grinding her teeth in her sleep, amongst other symptoms.

b)At paragraph 5, Dr S concluded that:

The prospect of having to deal with her ex-husband again in any form is highly distressing and anxiety provoking for [the mother] and has a significant impact on her functioning. The previous court case was very stressful, anxiety provoking and distressing for [the mother] and it negatively impacted on her mental health for many months (which would have also impacted the children). Her mental health improved very significantly when legal action ceased and in the period in which there was not any legal proceedings. Similarly, the prospect of her ex-husband having any contact with the children generates significant anxiety, [the mother] genuinely believes that this poses an unacceptable risk to the children. If [the mother] ever needed to have contact with her ex‑husband in relation to the children this is likely to be highly detrimental to her wellbeing and would negatively impact on her ability to parent.

38Thirdly, the mother filed an affidavit by the paternal grandfather, which was strongly supportive of the mother’s position that the father should have no time and communications with the children.

39Finally, the mother filed affidavits by her [yoga] teacher and former work colleague, both attesting to the mother’s positive qualities and the detrimental impact on her mental and physical wellbeing as a result of the father reinstituting proceedings.

40The father also filed a brief updating affidavit on 8 October 2019. In effect, the affidavit contained little or no new factual material, but rather summarised the father’s “case theory” as follows (from [3]):

[3] My focus is being a good father, following orders to the letter, and respecting the courts [sic] position. My objective is to build a relationship with my children, and instil confidence in [the mother] and the court through demonstration of changed behaviour, following orders, and I am grateful for the opportunity to do so.

[4] I want to leave any previous grievances prior to this period, in the past, it is time to move on for [the children’s] sake.

[5] I have missed [the children], and the pain has been significant at times, however, the confidence and promise of hope that Justice Walters left me with to turn this around, has kept me focussed and encouraged me, and the changes are evidenced by the depth of evidence supplied.

[6] My conduct in the last 18 months has been disciplined, with no erratic signs, indicators or inbalance [sic] and the evidence supports this. I am committed to continue showing the court and [the mother] I can follow orders, and I am very aware this is an area I need to always work on, and put all my effort in.

[7] I would like the court and [the mother] to consider the amount of work I have done, the effort it has taken, and the level of discipline and commitment I have exercised, resulting in significant change witnessed and evidenced by many. The same discipline I am going to exercise in achieving the objectives set out above.

[8] In 2014-17, I went to places in my mind that no person should ever have to visit. However, through Jesus, I have pulled myself out and built a new life, very much using the hope of seeing my children as a motivator. I have called on all my strength and determination to get to this point of potentially seeing my children, and I implore the court to see the evidence and therefore believe miracles do happen.

[9] My witnesses have demonstrated significant change, love for my children, and a genuine desire to behave with solid Christian values that have been demonstrated through evidence. I have completed 18 months of drug testing, spent significant time and money on psychiatry and subsequent reports, forgiven those who have done no harm, and learned to turn the other cheek in heated attacks. The evidence shows that in spite of these challenges, I am high achieving in my profession, my community and my personal life which is in evidence. There is nothing more I believe I could do or provide to the court that would demonstrate to the court the definition of significant change, and absolute love for my children. I miss my girls and I want them to have a father.

Applicable law

41These proceedings are determined in accordance with Part VII of the Family Law Act 1975 (Cth). The court has power to discharge, vary, suspend or revive some or all of an earlier parenting order.[24]

[24] Family Law Act 1975 (Cth), s 65D.

42In the mother’s Form 1A Response filed on 5 June 2019, she sought a final order in the following terms: “Dismissal of the application as a preliminary issue and uphold 24 August 2017 Orders of Justice Walters”. The mother did not particularise the legal basis on which she sought dismissal of the father’s application as a preliminary issue – which is unsurprising given the mother is a self‑represented litigant.

43At the directions hearing on 28 October 2019, I informed the parties that there were essentially two legal bases upon which the mother could seek the father’s application be dismissed: Firstly, by way of a summary dismissal application, and secondly consequent upon a finding that there has been no significant change in circumstances since final parenting orders were last made which would justify the re‑opening of the proceedings – known in shorthand as the rule in Rice & Asplund. I provided that information prior to inviting the parties to advise whether they wished to make further submissions to the Court in support of their respective positions. Neither party took up that opportunity.

44The power of the court to summarily dismiss a party’s case (in the usual sense in which that term is used) arises from any of the following:

a)section 45A of the Family Law Act 1975 (Cth), titled “summary decrees”;

b)rule 10.12 of the Family Law Rules 2004 (Cth), titled “application for summary orders”; and

c)the common law – where the court finds that a party’s case is “doomed to fail” because there is no reasonable cause of action or the claim is clearly frivolous or vexatious.[25]

[25] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; Pelerman v Pelerman (2000) FLC 93-037.

45However, as the Full Court observed in Miller & Harrington,[26] where a parenting application is sought to be dismissed on a summary or preliminary basis, the proper approach is to determine the matter by applying the rule in Rice & Asplund,[27] arising from the need to have regard to the child’s best interests as the paramount consideration. As the Full Court (Warnick, Boland and Murphy JJ) said (from [69]):

[26] Miller & Harrington (2008) FLC 93-383.

[27] Rice & Asplund (1979) FLC 90-725.

[69] This court has used, and continues to use, expressions such as “striking out” and “summarily dismissed” where financial issues are in dispute. (See, eg: Bigg v Suzi (1998) FLC 92-799; Bain Pacific Associations and Ors and Kelly & Ors (2006) FLC 93-270 per Bryant CJ, Warnick and May JJ). In those types of case, principles familiar to the common law are applicable. In particular, the usual approach has been to determine the application by reference to material in the case for the respondent together with any non-contentious facts. (See, eg, Bain Pacific at para 21).

[70] In parenting applications, when a party submits an application should not proceed to a full hearing a common approach is exemplified by the discussion in this case in the passages of transcript already set out; in particular references to “dismiss the mother’s application for final parenting orders on a summary basis”, after a hearing “on the papers”.

[71] The use of this terminology is readily understandable, both in the light of usage in authorities and usage in the Act, e.g. s 69ZQ(1)(a), which obliges the court hearing an application for parenting orders to “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily”.

[72] 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. (emphasis added)

[73] The application of the rule occurs within proceedings to which the provisions of Division VII of the Act apply. More specifically, the application of the rule occurs as part of “child-related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.

[74] Included among the mandatory requirements upon a court are: the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ(1)(a)) and to “deal with as many aspects of the matter as it can on a single occasion” (s 69ZQ(1)(g)).

[75] The provisions of s 69ZR(1), empower the court to “make a finding of fact in relation to the proceedings”, to “determine a matter arising out of the proceedings” and to “make an order in relation to an issue arising out of the proceedings” if the court considers that “it may assist in the determination of the proceedings”. The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “… at the same time as making final orders”.

[76] The terms of s 69ZN of the Act, which set out the “principles for conducting child-related proceedings” also apply to a hearing in which the rule in Rice and Asplund is applied at a preliminary stage. In particular, s 69ZN(3) and (5) provide:

(3) The first principle is that 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 the proceedings.

…

(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:

(a) the child concerned against family violence, child abuse and child neglect; and

(b) the parties to the proceedings against family violence.

46The rule in Rice & Asplund was stated by Evatt CJ in the following terms: [28]

The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier Order and to the reasons for and the material on which that Order was based. It should not lightly entertain an application to reverse an earlier custody Order. To do so would be to invite endless litigation, for change is an ever present factor in human affairs. Therefore the Court would need to be satisfied by the Applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that a Judge should consider in his Reasons for Decision. It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served. These principles apply whether the original Order is made by consent or after a contested hearing. The way they apply and the factors which will justify the Court in reviewing a custody Order will vary from case to case.

[28] Rice & Asplund (1979) FLC 90-725, page 78,905: citations omitted.

47In the 2009 decision of Marsden v Winch,[29] the Full Court observed (at [50]) that:

Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. …The court must look at:

(1)The past circumstances, including the reasons for decision and the evidence upon which it was based.

(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment of the children caused by the litigation itself. Thus small changes may not have sufficient benefit to compensate for the disruption caused by significant litigation.

[29] Marsden v Winch (2009) 42 Fam LR 1.

48The Full Court then at [58] formulated the inquiry in the following terms:

a)for a prima facie case of changed circumstances to have been established; and

b)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.

49Of particular importance in this case is their Honours’ discussion at [59]:

It is also important to highlight a certain class of case, of which this is one, where the court has made findings which have led it to conclude that there should be no face-to-face contact between parent and child. These cases can provide different challenges, both for the applicant and the court. Usually the reason for such a draconian order has been a finding about particular behaviour of a party, by reason of which it would be contrary to the child’s interest to allow face-to-face contact. Once made, those findings will stand and the changes asserted will usually be the passage of time and/or some amelioration in the underlying causes of the behaviour, such that it is unlikely to occur in the future. The passage of time is not of itself a factor but might become relevant where the risk to the child by certain behaviour is reduced or removed by the increasing age and maturity of the child…

50The rule in Rice & Asplund may be applied either at a preliminary stage in the proceedings (that is, before trial), or at trial. In Searson & Searson,[30] the Full Court summarised the law with respect to the application of the rule at a preliminary stage. I emphasise the following points made by the Full Court in that decision:

a)At whatever stage the rule is applied, its application should remain merely a manifestation of the “best interests principle”;

b)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order;

c)Even if the rule is applied at a preliminary stage, it remains a determination “on the merits”;

d)The rule is to be applied on the assumption that the evidence of the applicant is accepted by the court;

e)If an application is dismissed at a preliminary stage, it is because there is an insufficient change of circumstances shown to justify embarking on a final hearing;

f)The underlying conclusion (whilst not always stated) will or ought to be that the interests of the child in not being subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.

[30] Searson & Searson (2017) FLC 93-788: [8] – [16]. I also acknowledge the extensive citation of Warnick J’s reasons in SPS and PLS (2008) FLC 93-363 in the summary provided by Murphy J.

51I also note the Full Court’s guidance in Carriel & Lendrum[31] (at [56] - [58]) that:

[W]here the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interest of the child might lie.

In a case where the principle in Rice & Asplund 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/ren 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/ren 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/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.

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.

Discussion and conclusions

[31] Carriel & Lendrum (2015) FLC 93-640.

52The hearing on 28 October 2019 proceeded on the basis that: (1) both parties confirmed that they did not seek to rely upon any further evidence, for example, affidavits of any other persons or further reports by a single expert witness or family consultant; (2) the parties did not seek to cross-examine each other or their respective witnesses; and (3) the parties did not seek to make any further oral submissions.

53In effect, the father’s position was that he had established a prima facie case that his circumstances had changed, and those changes were sufficient to warrant the court considering varying the 2017 final orders. I do not agree.

54Even assuming that the father’s and his witnesses’ evidence is accepted: that “miracles do happen” and that the father has achieved significant positive changes in his behaviours and beliefs, nevertheless in the short time since the 2017 final orders were made, there was no evidence, and the father did not suggest, that the parties have been able to rebuild a mutually respectful and trusting relationship with each other. In particular, there was no evidence, and the father did not suggest, that the mother had recovered from the damage suffered by her as a result of her relationship with the father and his behaviour after their separation. On the contrary, the mother’s evidence was that she remains greatly damaged by her relationship with the father; and continues to be hypervigilant and deeply concerned about the ongoing involvement of the father in her life and the lives of her children. The evidence of the mother and her psychologist was that the re‑institution of the proceedings by the father in 2018, and again in 2019, have re-ignited the mother’s distress and anxiety, have significantly detrimentally impacted on her mental and physical health and also had a significant detrimental impact on her functioning, including her capacity to care for the children.

55The trial judge’s concerns about imposing a contact arrangement on the mother, against her wishes, remain. Such orders would still be likely to heighten the mother’s stress, anxiety and hypervigilance and undermine her capacity to function and parent effectively. Such an outcome would still not be in the children’s best interests.

56In conclusion, I am not satisfied that the father has established a prima facie case of changed circumstances sufficient to justify embarking on a final hearing. I am also not satisfied that if the matter proceeded to a final hearing, there is a likelihood of the orders being varied in a significant way or of there being a sufficient benefit to compensate for the disruption caused by re-litigating the matter. I intend to dismiss the father’s application.

Note: This judgment was republished on 24 June 2020 to correct a grammatical error.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV
Associate

10 JANUARY 2020