Fisher and Fisher - [2008] FMCAfam 1162

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FISHER & FISHER

[2008] FMCAfam 1162

FAMILY LAW – Parenting orders – application to suspend father’s time soon after orders were made – whether Rice & Asplund applies.

Family Law Act1975 (Cth)

Rice & Asplund (1979) FLC 97-725
SPS v PLS (2008) FamCAFC 16
B v C (2007) FMCAfam 666
D and Y (1995) FLC 92-581

Applicant:

MS FISHER

Respondent:

MR FISHER

File Number:

DGC 3677 of 2007

Judgment of:

Phipps FM

Hearing date:

22 September 2008

Date of Last Submission:

22 September 2008

Delivered at:

Dandenong

Delivered on:

22 September 2008

REPRESENTATION

Counsel for the Applicant:

Ms J.S. Elleray

Solicitors for the Applicant:

Lewenberg & Lewenberg

Counsel for the Respondent:

Mr G.A. Devries

Solicitors for the Respondent:

David Stagg Tonkin & Co.

ORDERS

THAT the father’s time with the children [X] born 14 May 1995 and [Y] born 15 September 1998 recommence on Sunday 28 September 2008 and that time be deemed to be the first of the 8 scheduled occasions under part 4(b) of the order made 23 April 2008.
THAT otherwise the application and response are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Fisher & Fisher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGC 3677 of 2007

MS FISHER

Applicant

And

MR FISHER

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The application concerns the parties' two children, [X] born in 1995, and [Y] born in 1998. They are aged 13 and 10. Final orders were made by consent in this court on 23 April 2008.
Under those orders, the two boys live with their mother. The parties have equal shared parental responsibility. The children are to spend time with their father from 4.00pm to 7.00pm or such other time as agreed each alternate Sunday, supervised by Ms H at the cost of the husband commencing on 4 May 2008. Then each alternate weekend from 10.00am to 5.00pm Sunday, commencing at the completion of the parenting program which is referred to later in the orders. Then after eight scheduled occasions, from 5.00pm Saturday to 5.00pm Sunday each alternate weekend. After another eight scheduled occasions, from 5.00pm Friday to 5.00pm Sunday. There is provision for holidays and special occasions.
Paragraph 5 requires the husband to attend and complete a POP program, which is a parenting program, at Gordon Care, [omitted], addressing his relationship with the children and his attitude to the wife.
The children's mother, Ms Fisher, has now brought an application to suspend the orders. The application was filed on 13 August 2008. Final orders sought are to discharge the orders made on 23 April 2008, and the interim orders are to suspend the orders of 23 April 2008.
As formulated today by Ms Elleray who appears for the wife, the interim application is to suspend the orders, to make an order for the parties or at least for the husband and his current wife and the children to attend family therapy and for there to be an Independent Children's Lawyer appointed, there to be another family report, and then to be fixed for final hearing.
The response by the husband is that the mother's application should be dismissed finally today on applying the principles of Rice & Asplund (1979) FLC 97-725.
The material is the mother's application, her affidavit filed on 13 August 2008, another affidavit by the mother filed on 18 September 2008, and an affidavit of Ms H filed on 5 September 2008. The father's material is his response and affidavit filed on 19 September 2008.
As well as those affidavits, I was referred by Ms Elleray for the wife to two reports by Ms Jay Manya. One of them is annexed to an affidavit sworn on 26 November 2007 and filed on 1 February 2008. That is dated 22 September 2007, and the second is a further report which is dated 7 March 2008.
I have been referred to a report by Dr Paul Kornan which is annexed to an affidavit he swore on 7 April 2008 filed on 10 April 2008, and in particular his report on Ms Fisher, the children's mother. He did a report on both parents and the father's current wife.
The background to the orders being made in March 2008 is this. The parties separated quite some time ago. Consent orders were made in August 2003 which provided for the children to live with their mother and to spend time with their father on alternate weeks, as well as half school holidays. Ms Manya says in her first report that:
The parties state that since May this year, there has been disagreement between the parents about the children's, particularly [X]'s, living arrangements. The father and stepmother express a view that after [X] turned 12 years old, he has been expressing a strong wish to live in their care, and is distressed about not being able to do so.
That is a matter of dispute or was a matter of dispute at that time.
The children were at their fathers on the Father's Day weekend on 1 September 2007. The father then withheld the children. It was alleged that the children on that date reported that their mother had scratched [X] and kicked [Y] on the thigh, bruising him, for expressing a wish to live with their father. Police and the Department of Human Services became involved.
It is alleged on the mother's side that it was all a fabrication. I have seen some material which says that [X] has withdrawn the allegations to the police, saying that his father and stepmother had persuaded him to say those things. Those allegations have not been tested in court as I understand it. Ms Manya's report of 22 September 2007 made a strong recommendation that the children should be returned to the primary care of their mother, and that there be some counselling for the children.
For the second report Ms Manya saw the mother and the father and the children and made observations on 7 February 2008. Under Evaluation and Recommendation, she says this in paragraph [40]:
During the latest report interviews, both children reported that the father and stepmother had pressured them to hurt each other purposely and make a false report that their mother had abused them so that the children could be removed from their mother's care. If this version of events is factual, it is very concerning that the other party had gone to the extent of making hazardous and reckless suggestions to the children. It is understandable that the mother is highly concerned about the physical safety of the children, the emotional pressure that the children will be under at the father's home.
Ms Manya says:
It is reported by both parties that the mother had offered supervised visits to the father, which was refused by the father as unnecessary or inappropriate.
She then says at paragraph [43]:
The father, the mother and the children recognise that the children miss spending time with their father and are keen to spend time with him. They had not been for some time up until that time.
She goes on:
The father and the stepmother are clearly unhappy about not spending time with the children. There are also other siblings and the paternal grandmother who are keen to resume regular time regime with the children. The writer believes that if the children do not resume spending time and communication with their father, it will have a negative impact on the children's general welfare.
She says at paragraph [46] after further discussion:
If the father and the stepmother continue to confuse and disrupt the children with ongoing discussion about living with them, it is appropriate that the children only spend supervised time with the father for the next six months at a professionally run supervised centre on a fortnightly basis.
I need to go back to paragraph [44] to explain the next part of her recommendation. Ms Manya says at paragraph [44]:
After the updated report interviews, the solicitor for the mother telephoned the writer to state that the father had decided to seek the primary care of the children. The writer was unable to ascertain if it was factual information from the father before the release of the report. If this information is correct, it once again raises other concerns about the father such as his capacity to understand and provide for the needs of the children, and total lack of insight, apart from the fact that the father and stepmother have not learnt much from their previous experiences.
Ms Manya's opinion in her report is the children need to be in the primary care of their mother. That leads on to paragraph [46] which is where she says that:
If the father and the stepmother continue to confuse and disrupt the children with ongoing discussion about living with them supervised time only was appropriate.
Then at paragraph [48] she says:
Nonetheless, if the information received from the mother's solicitor is not factual and is as stated by the father and his partner during the report interviews, their main concern is to maintain a meaningful relationship with the children by way of regular time regime with them, a gradually increasing time regime needs to be agreed between the parents with a strict stipulation that the father or stepmother will not make further court applications in relation to the children's living arrangements without valid reasons in the future.
She then recommends, based on that discussion, that the children spend 10.00am to 5.00pm on the fortnightly Saturday at their father's home for the first four months. If those visits proceed well, that be increased to Friday 5.00pm to Saturday 5.00pm on a fortnightly basis the next four months, and then after that, extended from Friday 5.00pm to Sunday 5.00pm.
The orders which were agreed to on 23 April 2008, after the period of time supervised by Ms H, put into effect Ms Manya's recommendation for the gradual increase in supervised time.
What has brought about the mother's application is a report she received from Ms H. There were three supervised visits or time with the children, one of which was of very short duration; five to 15 minutes. There is something of a dispute as to how long it was, and a dispute as to why it happened in those circumstances. Then two three-hour periods supervised by Ms H after that time. By then, Mr Fisher had completed the parenting program at Gordon Care and the first of the 10.00am to 5.00pm Sunday periods took place. The mother,

Ms Fisher, then received the report of Ms H and stopped the children's time, and made this application.
Part of the material the parties had available when the orders were made on 23 April 2008 was a report from Ms H about two supervised times the children had spent with their father. Supervised by Ms H, she reports them as being successful.
Ms H says of the first of the visits after the orders were made, which was to be Saturday 3 May 2008, that the husband telephoned asking if his wife could attend. I do not need to set out the detail of what Ms H says, but she said his wife could not.
Ms H says the husband rang back about 20 minutes later and wanted to see the boys for only two hours instead of the allocated three hours. It was too late for her to contact the mother. The two hours was a problem for the mother because she lived some time away. So it would mean she would need to stay. In the end, it meant that there was only a brief meeting between the children and their father.
The father in his affidavit disputes Ms H's version of what occurred. He said he has some children of his current marriage, and they had been left with the grandmother. She was rather upset because a close family friend had died the week before, so they were concerned about leaving the children with her for too long. There were other reasons why he could not stay. He said he explained it all to Ms H, and in the end he was unable to do more than spend about 15 minutes with the two boys. So there is a dispute about what happened. Ms H said the boys did not seem to be upset that their father did not stay for long.
The next two visits were rearranged to be from Fridays 6.30pm to 9.30pm, Ms H says, because the shops will be open, and there were several shopping centres close by her home. Ms H is a professional supervisor with a significant background in child protection and child psychology. The basis on which she was supervising was that the children were brought to her home. Either the visits took place there or they travelled elsewhere, supervised by Ms H. She says in her report that the father agreed to the change. She says although he agreed to it, he felt he did not have any choice.
Ms H said the next two visits went reasonably well, but she says that the father always turned up about 15 minutes before time and parked in front of her house. Ms H says that originally it was agreed that he would turn up on time and the mother about 10 minutes earlier to prevent unpleasantness between the parties.
On that first visit, she said:
The father came in with his sons saying how good the stepmother was, and that she got the birthday card, and she said the boys looked a bit uncomfortable.
She says:
The father kept on talking about his wife and how she loved and missed the boys, as did her children from a previous marriage, but soon they would be coming to visit at the father's home.
She says:
The last visit was again reasonable, but the father spoke a lot about the wife and stepchildren and how they missed the boys, but were looking forward to the next visit.
Ms H says that after the father left, she informed the boys that this was the last supervised visit. She said:
They went very quiet and said they would like to keep coming here rather than go to the father's house.
When she asked why, they said:
Well, here dad actually spends time with us and plays games with us. When we go to his house, we have to clean up all the dog's poo around the house, do all sorts of jobs and look after the younger children while dad and his wife watch TV, often lying on their bed.
She said they appeared upset that the visits at her home had to stop. If I go back to Ms H's affidavit, because she has some comments in her affidavit which expand on some of the things in the report. She says in her affidavit:
I want to reiterate for emphasis that it has been clear from my observations that the father is more concerned about himself than the children. He talked about himself, his bad back and his personal situation rather than inquiring after the boys. Especially with respect to his bad back, he appears to be emotionally manipulating the children.
She makes a comment about the father's mobility. Then she said:
I insisted to the father that he only arrive at the commencement of contact. Despite this, the father and stepmother consistently arrived 20 minutes early, and parked right out the front of my home or in my driveway. They ensure that they are standing at the front of my house when the mother arrives, and it appears they are doing this for no other reason than to intimidate the mother.
A number of those matters are disputed by the father in his affidavit.
That is what is in Ms H's affidavit. Going back to her report, she says at the end of that report what is repeated in her affidavit, that the father and his wife's attitude to the children's mother has been intimidating. She said:
The father appeared more concerned about his wife than about his sons.
She then says:
It appears that he has not learned much from his parenting program, and both the father's and stepmother's attitude could be detrimental for the boys' emotional development and create more friction between the three parties.
She makes a comment about the husband telling lies to his solicitor, and she says:
The stepmother needs to accept that the boys have their own mother and that she is not to take over the role.
Then she says:
The father also plays on his sons' emotion by always talking about his sore back, and wearing a back brace on top of his clothes rather than under them as is the norm.
She says:
Some intensive counselling of both the father and stepmother would have been very beneficial for these two boys.
The mother's position is, from what appears in Ms H's report, that the father's attitude to the children and their relationship with their mother has not changed, and that the position is the one which had

Ms Manya saying that there should be supervised time for the next six months; that is:
The father and the stepmother continue to confuse and disrupt the children with ongoing discussion about living with them. So if that is the case, there should only be supervised time.
The husband's application through Mr Devries is that the application should be dismissed on the Rice & Asplund principle. That was discussed in some detail by Warnick J in SPS v PLS (2008) FamCAFC 16, a decision on 28 February 2008. That was on an appeal from a Federal Magistrate. In particular His Honour discussed applying the rule as a threshold question. He says at paragraph [45] that:
The rule has not always used consistent terminology.
He says:
The term "threshold" has sometimes been used in a temporal sense, to indicate something done at the beginning of a hearing as opposed to at the end and, at other times, the term has been applied to consideration of the rule (irrespective of when in a trial that was given) ahead of consideration of (or as the initial application of) other relevant or potentially relevant principles.
At paragraph [48] he says, "In my view, reflection on the rule shows" a number of things, which includes:
What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
He says:
At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
That is a reference to s.60CA of the Family Law Act 1975 (Cth), the best interests of the children are the paramount consideration. He says:
Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
He says:
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
Then:
Any application of the rule must now measure the evidence against the principles set out in Part VII of the act, in particular the objects of the part, the presumption of equal shared parental responsibility and the steps required by the act consequent upon an order made or to be made in that regard.
He goes on to say in paragraph [49] that:
What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
Paragraph [56]:
The purpose of the rule was to discourage “endless litigation”.
His Honour says that:
The public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings.
He says at paragraph [59]:
If the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.
The basic principles behind the rule in Rice & Asplund is that firstly issues should not be re-agitated if there are no change in circumstances, and secondly children should not be exposed to endless litigation.
In a Federal Magistrates Court of Australia decision, by Altobelli FM, His Honour sets out a passage from B v C (2007) FMCAfam 666 a Full Court judgment in D and Y (1995) FLC 92-581, and a passage 81,764, paragraph 44 of that decision says:
To apply the test in Rice & Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.

Ms Elleray's submission is that this is not a Rice & Asplund type of case. This is not an issue about where the children should be living. The Rice & Asplund principle and the other decisions I have referred to were applications to change the primary residence of the children from one parent to another. This is an application to change the time-with arrangements with their father. She says this is not that situation. It is not one where changed circumstances are being looked at. It is merely an application of the "best interest’s principle".
I do see this as a Rice & Asplund case. While the cases that have been referred to are concerned with where the children will principally live, who they will live with, the principles are applicable to applications for basic and significant changes to the orders.
In this case, the real issue, by the 23 April 2008, was whether they were to be spending time with their father and the terms on which that was to occur. At that time a real issue was whether the children should be spending time with their father, certainly whether they should be spending unsupervised time with their father.
To apply that principle, I need to proceed on the basis that what is alleged by the mother is correct. What she relies on principally is

Ms H's report. She also refers in her affidavit to some other material and in particular an email exchange between her and the children's father. That culminated in an email from Mr Fisher on 19 June 2008.
Prior to that, an issue had arisen about the orders. The orders as engrossed and attached to the formal order of the court had the holiday time commencing in 2008, whereas it was meant to be 2009. That was amended under the slip rule. There was some correspondence between solicitors.
On 19 June 2008, the father sent an email to the mother:
There are things in the current Family Law orders that neither of us are happy with. We can mutually agree to changes as long as we write them down and both sign them. I understand that you need to change drop-off time to 7.30 pm, especially on Friday nights. Also I am willing to accept 4(1) to be changed to 2009. I am willing to make these changes if you are willing to agree to changes that I require as follows. Pick-up and drop-off to take place inside the Doncaster police station. This is due to the assault that took place outside your residence which was recorded on tape by the police. Saturday Greek school and sports to be dropped. Both boys would rather spend time with us on the weekend, and play sport on weeknight instead. [X] is doing Greek at school, and both boys have no wish to continue Greek school on the weekends.
Greek school was an issue of contention between the parties. Paragraph 10 of the order of 23 April 2008 provides:
The husband ensure the children attend their usual school or team sporting activities during the time they are to spend with him including Greek school.
The mother points to the email from the father as indicating his attitude to the orders and the agreement that was reached. He submits it shows him wanting to change what she understandably regards as a significant part of those orders.
The father in the email would seem to be proposing a compromise, that he will agree to 4(1) being changed to 2009 in return for other changes. It was not a matter of him agreeing to the 4(1) change. It was a clear slip rule application.
In his affidavit, the father says that he indicated to the mother that they could not take the children to their extracurricular activities because they were afraid of another assault, and he also said that [X] does not like going to the Greek school.
The changed circumstances that the mother points to are these. The most important one is that she says that what can be taken from Ms H's material is that the father's attitude towards the children has not changed. She says that is a change in the circumstances relevant to these orders, because these orders are based on a premise that the father and the stepmother, either at the time of making the orders or by the time the parenting program and supervised time has concluded, will not continue to confuse and disrupt the children with ongoing discussion about living with them.
There is no evidence that the father and stepmother have done that, but what I take to be the change that the mother says is that this is sufficient evidence that the father has not changed his attitude overall, and that there is sufficient evidence that he will go back or still has in his mind that he will try to persuade the children to live with him. That is alleged to be a different circumstance to the one on which the order was based.
I have not expressed that very elegantly. It is better expressed this way. That the basis of the orders is that the father is not attempting to and was unlikely to attempt to confuse and disrupt the children with ongoing discussion about living with him. The mother puts it that that premise no longer exists, even if it did exist at that time.
Warnick J says that the circumstances have to be weighed up against the type of change which is being sought, and overall the best interests of the children are the determining factor.
Ms Manya's reports show that the children have been confused and upset by what has happened. They have gone through two report‑writing processes, that is two sets of interviews with the report writer and two sets of observation sessions with their parents. That is in the context of first being withheld from their mother, their primary carer, by their father, then returned to their mother then having a period of not seeing their father as they had before. This is in circumstances where all agree that they do need to see their father.
I need to balance the material I have, assuming what Ms H says is correct, against the change which is sought in the context of the best interests of the children. A very strong consideration here is that as much stability as possible in the children's arrangements and how they spend time with their parents is essential for these two children.
In those circumstances, the question is whether there is sufficient evidence of the risk that Ms Manya referred; sufficient evidence that the father and stepmother will continue to confuse and disrupt the children with ongoing discussion about living with them. There is not any direct evidence that that has been happening. In one sense, given the history and background of what occurred, the father's behaviour described by Ms H is perhaps to be expected. There is significant distrust and conflict between the parties. Ms Manya said that the father and the stepmother withheld the children from their mother without any thought about the consequences of that for the children.
I do not consider there is sufficient evidence that there is continuing discussions with the children about living arrangements. The children had one unsupervised time with their father on the Sunday. The mother makes no complaint about that.
It is possible that the father and the stepmother's behaviour, if it is as Ms H describes, shows that they have not changed their thinking, and it may be a step on the way towards again attempting to have the children live with them. That is possible, but in the "best interests" consideration, I have to balance that against the need to have finality and the need not to have the children yet again subject to the whole litigation process.
As I understand the way Warnick J describes and explains the Rice & Asplund principle, that is the process I need to go through as I apply it to this case. In those circumstances, I am not satisfied that there is evidence of such changed circumstances that this case should reopen. I will dismiss the application based on the Rice & Asplund principle.
Application has been made for costs on the part of the husband. Costs are dealt with in s.117 of the Family Law Act 1975 (Cth). The matters the court is to take into account in determining whether to make an order for costs are set out in subsection (2). That is an order contrary to the usual order that each party should bear their own costs.
The father is legally aided and is on WorkCover at the moment. The mother's financial position is not strong. Mr Devries for the father submits that the father has been wholly successful, but in the context of what was in dispute, the father is not without some blame. I only need to refer to the email which I referred to in my reasons in which he said he was proposing changes in the orders, and was proposing a compromise where he had nothing to offer in terms of compromise.
There is also a significant matter of dispute about his behaviour. I might put it this way: I do not see the father as being blameless in what has happened. There will be no order for costs.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Jan Smith

Date: 27 October 2008