Fullager and Barberry
[2016] FCCA 1117
•1 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FULLAGER & BARBERRY | [2016] FCCA 1117 |
| Catchwords: FAMILY LAW – Rice v Asplund threshold hearing – previous consent final parenting orders – relevant change in circumstances established. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Rice v Asplund (1979) FLC 90-725 Sampson v Hartnett [2015] FamCA 64 Morton & Berry [2014] FamCAFC 208 Poisat & Poisat [2014] FamCAFC 128 Goode & Goode (2006) FLC 93-286 MRR v GRR (2010) 240 CLR 461 |
| Applicant: | MS FULLAGER |
| Respondent: | MR BARBERRY |
| File Number: | CAC 462 of 2012 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 3 September 2015 |
| Date of Last Submission: | 3 September 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 1 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Druitt |
| Solicitors for the Applicant: | Matthews Folbigg Pty Ltd |
| Solicitors for the Respondent: | Ms Smith |
ORDERS
The Father’s application in his Response to Initiating Application filed 9 September 2014, seeking to dismiss the mother’s Initiating Application filed 11 August 2014 and application seeking to dismiss the mother’s Further Amended Initiating Application filed 20 August 2015, are dismissed.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship, X born (omitted) 2011 (“the child”), attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 30 January 2017.
The Family Report is to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the nature of the relationship between the child with each of the child’s parents and with significant other persons;
(c)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents; or
(ii)any other child, or significant person, with whom the child has been living.
(d)the practical difficulty and expense of the child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(e)the capacity of each parent or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f)the child’s maturity, sex and cultural background and any other characteristics of the child that the reporter thinks are relevant to the child’s welfare;
(g)any physical or psychological abuse that the child has been or is likely to be subjected to;
(h)any ill-treatment, family violence or other abusive behaviour that is directed toward a member of the child’s family, extended family or significant person and the likely impact of this on the child;
(i)each parent’s attitude to the child, and to the responsibilities of parenthood;
(j)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(k)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
The proceedings be adjourned for mention following the release of the Family Report at a date to be advised by the Court in due course.
The Court appoints an interim hearing for 22 November 2016 at 10:00am, in relation to the issues of the time to be spent by the child with the father and the mother’s proposals to travel overseas to (country omitted) with the child to visit extended family.
The parties shall, no later than 7 days prior to the interim hearing, file a short Case Outline setting out submissions under section 60CC of the Family Law Act 1975 (Cth), material relied upon and orders sought.
The proceedings are placed in the call over list on 16 September 2016 at 10:00am for matters awaiting a final hearing in 2017.
IT IS NOTED that publication of this judgment under the pseudonym Fullager & Barberry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
CAC 462 of 2012
| MS FULLAGER |
Applicant
And
| MR BARBERRY |
Respondent
REASONS FOR JUDGMENT
These are reasons for decision in the matter of Barberry and Fullager. Final parenting orders by consent were made between the parties on 2 July 2012 in the Federal Magistrate’s Court at Canberra in relation to the subject child, X, born (omitted) 2011.
At this interim hearing the Applicant mother sought to establish that the threshold principles in the decision in Rice v Asplund (1979) FLC 90-725 had been overcome such that she should be able to proceed with her Further Amended Initiating Application filed 20 August 2015, in which she seeks fresh parenting orders. The Respondent father contended that the mother had not overcome such thresholds and she should not be permitted to re-litigate parenting proceedings. The father contends that he should spend time with the child in accordance with the past final consent parenting orders made 2 July 2012.
The material relied upon by each party is set out in their respective case outlines. The mother relied upon her affidavits filed 2 March 2015 and 20 August 2015. The father relied upon his affidavits filed 6 March 2015 and 20 August 2015. There were documentary exhibits. For example, there was a Child Dispute Conference Memorandum to the Court dated 8 October 2014 that was in evidence before the Court. The Court has considered all the evidence before the Court, including the submissions of the parties.
Final consent parenting orders of 2 July 2012
The above orders provided, inter alia, that the parties have equal shared parental responsibility; the child live with the mother; the mother be permitted to relocate the child’s residence to Sydney; and that the child spend time with the father as set out in paragraph 8 of those orders. The Court notes, in particular, order 8.7 of the above orders stating:
Commencing from 19 August 2015 until 18 August 2017, (the child shall spend time with the father) from 10am Saturday to 2pm Sunday on each alternate weekend with the collection and return of X to occur at McDonald's (omitted).
The Applicant mother’s Further Amended Initiating Application filed 20 August 2015 seeks, inter alia, interim orders that the child spend time with the father (paragraph 3.1):
Commencing 22 August 2015 and until 18 August 2017 each third weekend as follows:
3.1.1: from 11am on 22 August until 2pm on 23 August 2015 and every six weeks thereafter in Canberra; and
3.1.2: from 11am on 12 September 2015 until 2pm on 13 September 2015, and every six weeks thereafter in Sydney.
The Court notes that the mother in that Application seeks final orders in paragraphs 3.1 (3.1.1 and 3.1.2) on the same basis as above.
Accordingly, it can be seen that under the existing order 8.7 of the past consent parenting orders of 2 July 2012, at least for the period from 19 August 2015 until 18 August 2017, on every alternate weekend, on both the Saturday and Sunday, each parent would be travelling with the child to and from (omitted), whether from the Sydney end or the Canberra end. Moreover, the child would be spending a significant part of that Saturday and Sunday travelling as a car passenger whether from Sydney to Canberra or from Canberra to Sydney, noting the changeover at (omitted).
Rice v Asplund Legal Principles
The Court refers to the helpful exposition of relevant legal principles in relation to the decision of Rice v Asplund (1979) FLC 90-725 in the decision of Foster J in Sampson v Hartnett [2015] FamCA 64:
21.In Morton and Berry [2014] FamCAFC 208 (18 September 2014) the Full Court succinctly reiterated the development of the “rule” as follows:
18. The “rule” in Rice & Asplund refers to remarks made by Evatt CJ in that case at [78,905-06]:
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 … 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. …
19. Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the 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.
20. The “rule” is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).
21. It is to be recalled however, as was said in Perrott & Perrot [2014] FamCAFC 128, referring to the decision of the High Court in Norbis v Norbis (1986) 161 CLR 513 where Brennan J said (at 537):
It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that principles may harden into legal rules which would confine the discretion more narrowly than the parliament intended.
22. It is not relevant to the determination of this case to consider whether the cases concerned with Rice & Asplund have “hardened” into binding principles. However, there is no doubt that the concepts to which Rice & Asplund and the cases which follow it refer are entrenched in the Family Law jurisprudence.
23. As to the application of the principles, the Full Court in Marsden v Winch (2009) 42 Fam LR 1 said:
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. 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. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the 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 to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
24. Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which govern determination of the applications before his Honour, have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.
The Court will now examine the evidence before the Court by reference to the mother’s contention that there have been numerous significant changes of circumstances since the final consent parenting orders of 2 July 2012 such that there is a likelihood of those parenting orders being varied in a significant way as a result of a new hearing.
Background
The parties are now aged 35 years. They lived in a de facto relationship from July 2011 to early January 2012. At the time of the separation the parties were living in Canberra. After the final consent parenting orders were made in early July 2012, the mother moved to Sydney.
After the final consent parenting orders of July 2012, the mother maintains that a number of difficulties have been experienced in relation to the child’s time with the father and she has been very concerned about the child’s health and safety with frequent trips to Canberra and also during the time spent with the father.
In April 2014, the mother proposed to the father an alternate contact regime in relation to the child.
On 26 May 2014, the parties, with the assistance of their solicitors, entered into Heads of Agreement – Interim providing, inter alia, for a variation of the regime under the 2 July 2012 orders. (In the father’s Affidavit filed 6 March 2015 he states, inter alia, that he does not believe the Heads of Agreement – Interim are in the child’s best interests or necessary and he does not wish to abide by them).
The Heads of Agreement – Interim, in terms of the child’s time with the father, set out her time with the father during the day on each of Saturday and Sunday in the relevant weekend with no overnight time, with such time to continue each fortnight until the release of a report from an agreed psychologist. Clause 2 of the Heads of Agreement – Interim provided that the parties:
“…will instruct an agreed psychologist to do a report which considers:
(a) whether or not overnight time for the child with the father should commence; and
(b) if not, at what age it should commence”.
The Court interpolates here that no agreement between the parties was able to be reached regarding the Psychologist referred to above in clause 2 of the Heads of Agreement – Interim; the mother proposing Dr V and the father proposing Dr R.
It is noted that the past consent parenting orders of 2 July 2012 provided that overnight time by the child with the father was due to commence on 19 August 2014.
It is further noted that the Child Dispute Conference Memorandum dated 8 October 2014 stated, inter alia, that one of the issues remaining in dispute between the parties was when the child would commence spending overnight time with the father.
The mother has not yet been provided with the report from the father’s treating psychologist pursuant to clause 1 of the Heads of Agreement – Interim made in May 2014. Clause 1 of the Heads of Agreement – Interim provided that the father:
“…will within 28 days provide to the mother a report from his treating psychologist which sets out:
(a) how long she has been treating the father and at what frequency;
(b) any diagnosis made; and
(c) whether or not the father has complied with treatment recommendations”.
On 10 July 2014, the father filed a Contravention Application. On 11 August 2014, the mother filed her first Application to change the 2 July 2012 consent parenting orders.
Changes in circumstances since orders of 2 July 2012
Logistical difficulties in relation to the arrangements and the impact of same on the child and on the mother
Pursuant to the 2 July 2012 orders, the mother took the child to Canberra each month and the father came to Sydney each month, such that the child saw the father once a fortnight on a weekend.
Between July 2012 and about December 2012, the child would be returned to the mother’s care, having spent time with the father and was variously tired and unsettled, subdued, fever, had sleeping problems and was dehydrated.
By early March 2013, the mother observed that the child did not appear to be settled, having been subject to the parenting regime for some eight months. The mother reduced her work hours each week from 36 hours to 27 hours.
In early April 2013, the mother told the father that she was very concerned about the child’s welfare. In late April 2013, the mother told the father that she was “really exhausted”, that the travelling to Canberra was just too much once a month and that the child was unsettled and was having nightmares and was sick.
The father’s Affidavit filed 6 March 2015 states, inter alia, that in about early-March 2014 the mother said to him, “these Canberra visits are not working; you need to come to Sydney more.”
The Court interpolates here that the mother told the Family Consultant at the Child Dispute Conference on 8 October 2014 that she found driving to Canberra exhausting and difficult to continue.
On each evening of the Canberra contacts in May 2013, the child was agitated and wakeful upon her return from time spent with the father. She was clingy and unwell and unable to attend child care for three days of the next week.
The mother and the child were unwell at the end of May 2013.
At a changeover on 15 June 2013 in Sydney there was conflict involving the parents and the father’s mother. According to the mother, the father’s mother acted aggressively at the changeover. (The Court notes that the father asserts that the paternal grandmother did not shout and scream at the mother nor take the child from the mother’s arms). After the changeover, the mother had sent the father a text message stating, inter alia: “I will take out an AVO against your mother if she interferes in handover ever again.”
In this context, the father expressly states in his affidavit that there are no orders prohibiting his mother from attending a changeover. (The Court notes also in this context that the 2 July 2012 orders do not provide for changeovers and the Heads of Agreement – Interim whilst they include a changeover clause, do not state anything in relation to the maternal or paternal grandparents).
On 16 June 2013, when the child was returned to the mother’s care she tried to hit the mother. She was alternatively aggressive and clingy for the next two days.
Following a trip to Canberra in late-June 2013, the child was unsettled.
During the remainder of 2013, the child continued to react aggressively upon her return from the father’s care. During late-September/early-October 2013 the child started to wake at night and take her nappy off and wet the bed.
During the time in Canberra in October 2013, the child would not settle on the Saturday night and woke up very early.
From about November 2013 to about May 2014, noting that under the July 2012 orders the child was taken to Canberra monthly by the mother to spend time with the father, the child would return to the mother’s care after spending time with the father variously acting aggressively, tired, hungry and unsettled, clingy, unwell, distressed, tantrums and defiant.
On 24 March 2014, the mother told the father, inter alia (see the mother’s email of 24 March 2014 to the father – Annexure F to the father’s affidavit filed 20 August 2015), that the regime under the July 2012 orders was not working; the mother and the child were both tired and they were getting sick, the child took significant time to recover and travelling to Canberra so frequently was not good for the child. The mother requested to change the regime but the father refused.
The Court notes the letter from the father’s former solicitors dated 24 April 2014 to the mother’s solicitors (Annexure J to the mother’s affidavit filed 27 February 2015) stated, inter alia:
“We are instructed … that the travel from Sydney to Canberra may be an issue for your client. Our client seeks to address and resolve this issue amicably and without the need for Court intervention. Accordingly, we request your client’s agreement for order 8.7 to be varied and to read:
“Commencing 16 April 2014 until 18 August 2017, from 10 am Saturday to 2 pm Sunday on each alternate weekend with the collection and return of X to occur at McDonald’s, (omitted). This essentially brings forward the anticipated overnight stays with our client.”
Pursuant to the contact regime under the Heads of Agreement – Interim dated 26 May 2014 (and as varied on occasion by agreement), the child spent time with the father in Canberra up to about February 2015 (see the mother’s first Affidavit) about every five to six weeks and being daytime only.
The child appeared to cope with this regime, save that she was very tired after the Canberra weekend and the journey. The mother states that the weekdays following their return from Canberra can be stressful; the mother and the child are tired, the child’s sleep is affected, the child is clingy and seeks reassurance from the mother. The mother states that the Sydney weekends are less demanding physically for the child. The child sees the father during the morning period and has a sleep on her return to the mother.
The mother told a Family Consultant at the Child Dispute Conference on 8 October 2014 that the child’s behaviour post-time with her father in Canberra as opposed to Sydney was significantly worse. She said that after the Canberra visits but not the Sydney visits, the child would insist on sleeping in her bed. Furthermore, the mother asserted that when the father had spent time with the child in Sydney with his former partner, that the child would return to her care a normal and happy child.
The mother further told the Family Consultant that she had interpreted the child’s behaviour to mean that she was not ready for overnight time with the father and that the Canberra visits should be cut back.
Since about February 2015 until about mid-August 2015, the child has spent time with the father as set out in the Heads of Agreement – Interim and the child’s daytime time with the father has been generally uneventful, although the evidence indicates that during this period on occasions, the child’s behaviour deteriorated at changeover times – including opposition at returning to the other parent and rude behaviour to the father and the paternal grandmother.
The Court notes that the Heads of Agreement – Interim provide in clauses 3(b) to 3(d), a pattern of the child spending time with the father every four weeks in Sydney and every four weeks in Canberra. This pattern can be contrasted with order 8.7 of the 2 July 2012 orders providing, presently and until 18 August 2017, the child spending overnight time with the father from 10 am Saturday to 2 pm Sunday on each alternate weekend, with the collection and return of the child to occur at McDonald's (omitted).
The mother is a (occupation omitted) and does shift work on a rotating roster. It is a difficult roster to predict, highly dependent on the workload and needs of the team. She does not have a lot of flexibility in that regard. She states that part of the difficulty with the Canberra visits is that she may have come off nights or evenings and she can be very tired doing the travel. She can have up to three long cases (involving (employment omitted)) in a week and that it is exhausting.
In this context, the Court notes the mother told the Family Consultant at the Child Dispute Conference on 8 October 2014 that she works shift work on a rotating roster and raised concerns that if she applied not to work on the weekends that she needed to facilitate for the child to go to Canberra, it meant that she had no flexibility to request any other deviations to her roster.
In the view of the Court, the above evidence indicates that the mother and the child were probably not coping with the July 2012 orders regime of monthly travel to Canberra from Sydney. The amended regime under the Heads of Agreement – Interim as implemented by the parties between early August 2014 and February 2015, and which resulted in the child spending time with the father in Canberra about every five to six weeks, led to the child being very tired after the Canberra weekend (and the journey in relation thereto). Further, following this weekend both the child and the mother were particularly tired and the mother needs to take measures in relation to the child, including giving the child reassurance when she is wakeful during the night and often has the child sleeping with her in the week following the return from Canberra. The mother notes that the child sleeps a bit longer on the following weekend and recuperates during that period. The mother observes that the child is clingy and likes to stay near her during this period.
The Court notes, in this context, the existing 2 July 2012 orders, specifically order 8.7 (and order 8.8, beginning from 19 August 2017) providing that the child will spend time with the father from 19 August 2015 until 18 August 2017, from 10 am Saturday to 2 pm Sunday, on each alternate weekend, with the collection and return of X to occur at McDonald's (omitted). Accordingly, order 8.7 (and prospectively order 8.8) will require the child effectively travelling from Sydney to Canberra and return on a fortnightly basis. It is likely by reference to the above evidence, that the child will have serious difficulties coping with implementation of order 8.7 (and prospectively order 8.8). And further, implementation of order 8.7 (and prospectively order 8.8) will likely lead to the mother experiencing work roster difficulties, with consequential tiredness issues which may well impact upon her parenting capacity for the child.
Accordingly, in the view of the Court, the above evidence indicates the difficulties being experienced by the mother and, in particular the child, in relation to travelling to Canberra and return on a monthly to five to six week basis constitutes a significant change in circumstances.
Breakdown of the July 2012 consent parenting orders – changeovers and conflict since the July 2012 orders
At changeovers on 9 March 2013 in Canberra, 20 April 2013 in Sydney and on 15 June 2013 in Sydney, there was conflict involving the parents and also involving the father’s mother in the latter two changeovers.
It would appear that the child is probably perceiving conflict at changeovers, including conflict not only between the parents but also involving the father’s mother. The child did not want to return to the mother at the conclusion of the time spent with the father on 21 February 2015. Further, and inter alia, on 22 February 2015 the child misbehaved towards the conclusion of time spent with the father; on 21 March 2015 the child made a negative remark to the father’s mother; on 2 May 2015 the child again acted out negative behaviour to the father’s mother at the conclusion of time spent with the father; on 13 June 2015 the child further misbehaved at a changeover; on 25 July 2015 the child was irritable at changeover time; on 8 August 2015 and 9 August 2015, the child’s statements to the father indicated by inference that she was aware of the parental conflict.
The father’s Affidavit filed 6 March 2015 states, inter alia, that recently the child has become clingy and distraught when leaving him.
In the July 2012 consent orders, there are no specific orders relating to how the parties are to act towards the other at changeover. There is no non-denigration order. There is no order providing that the paternal or maternal grandparents do not attend changeovers.
In the mother’s proposed parenting orders, she seeks orders, inter alia, that the parties be restrained from denigrating the other party in the presence of or hearing of the child and that they use their best endeavours to ensure that the changeovers take place quickly and courteously. The Court also notes that the May 2014 Heads of Agreement – Interim provide for specific changeover orders including non-denigration orders, however the Court notes that the father has not complied with specific terms specified in the Heads of Agreement – Interim.
In the view of the Court, the above evidence indicates since the July 2012 orders, that the parties are in conflict in particular at changeovers; such conflict also involving the father’s mother and these matters are probably having an adverse effect upon the child and this represents a significant change in circumstances.
In relation to the difficulties being experienced between the parties, the Court notes that the father proposed mediation in about the middle of 2013, and in August 2013 the parties had an intake assessment for a planned mediation with the Family Relationships Centre in (omitted). The family dispute resolution practitioner was of the view that mediation was not appropriate and issued a Section 60I Certificate (see Exhibit C).
Accordingly, the parties were denied the opportunity to attend mediation in August 2013; they were effectively denied alternative dispute resolution. The Court notes in this context, that the consent orders of July 2012 do not provide for mediation in the event of any difficulties being experienced by the parties in relation to the parenting orders.
In the view of the Court, this lack of availability of mediation is a further significant change in circumstances.
Father’s Health
The Court refers to the mother’s evidence as to the father’s tearfulness and anxiety prior to the July 2012 orders. Between early 2001 and the child’s birth, the mother had observed the father to become tearful and anxious on no less than a weekly basis.
During the mother’s pregnancy the father started to cry when the mother came home from work and she did not agree with him straightaway. The father insisted that the parties always hugged each other for a certain amount of time and declare their love before doing anything else; if there was any deviation from that occurring the father would cry.
After the baby was born the father would cry in front of the mother in certain situations.
At the July 2012 hearing of the proceedings, the father had a letter from his psychologist stating that he had symptoms consistent with depression.
The Heads of Agreement – Interim, in May 2014, provided inter alia, that the father provide within 28 days to the mother a report from his treating psychologist setting out how long the psychologist had been treating the father and at what frequency any diagnosis made and whether or not the father had complied with treatment recommendations. The father has failed to provide such treating psychologist report pursuant to the Heads of Agreement – Interim.
Further, the Heads of Agreement – Interim provided that the parents would instruct an agreed psychologist to prepare a report considering whether or not overnight time for the child with the father should commence and, if not, at what age it should commence. The evidence before the Court indicates that the parties have been unable to reach agreement on the choice of an expert psychologist.
In evidence is Exhibit A, representing clinical notes and other documents from Ms S, the father’s treating psychologist. That exhibit records the father’s attendances upon his treating Psychologist from 13 January 2012 to 13 June 2012, 29 April 2013 to 6 November 2013, and 26 May 2014 to 17 February 2015, a total of 11 consultations.
The clinical notes of 13 June 2012, shortly before the July 2012 consent parenting orders state, inter alia, that the husband is less teary, functional, gaining resilience and confidence. The psychologist report of 27 June 2012, inter alia, confirms those clinical notes of 13 June 2012, including stating that the father was less distressed about his relationship breakdown and was functioning at work and socially. Whilst the clinical notes leading up to and including 13 June 2012 report the father as occasionally being teary, they do not record any history from the father that he was crying in front of the child.
The records of the psychologist in Exhibit A, after the July 2012 consent parenting orders, variously record a GP Mental Health Care Plan dated 6 September 2013, referring to “depression, anxiety as a result of major problems with ex-partner….very upset, teary”. Under the heading, “Patient needs/main issues” it is stated, “Being able to deal with anxiety, depression and continue to function” and refers to counselling with the psychologist with a review date in three months.
The psychologist’s report of 25 September 2013 refers to the father presenting on that day for an initial assessment and noted that he presented as anxious with low mood. It referred to the father’s self-reported anxiety score on the depression anxiety stress scale falling in the extremely severe range and his stress depression score fell in the moderate range. The psychologist referred to her adopting a cognitive behaviour therapy approach to treatment focusing on anxiety management, relationship issues and problem solving as required. (The DASS 21 outcome tool recorded the father’s results as 39/50 with admissions by him of, inter alia, experiencing trembling (for example, in the hands) as applying to the father very much or most of the time and feeling downhearted and blue to a considerable degree, or a good part time).
On 13 December 2014, the child told the mother that the father cries because he wants to see her. On 2 April 2015 the child again told the mother that the father cries. The Court interpolates here that such behaviour by the father is, prima facie, not helpful for the child’s emotional wellbeing.
On or about 2 April 2015 the child told the mother that the father cries at “(omitted)’s place”. Nowhere in the clinical notes or other documents produced by the psychologist in Exhibit A, both before and after July 2012, is there a history taken from the father that he is crying in front of the child, although it is noted that the father misses seeing the child regularly.
In the view of the Court, the apparent exacerbation of the father’s mental health condition after the July 2012 consent parenting orders by reference to the above evidence, including crying in front of the child which was not reported by the father to the treating psychologist, represents a significant change in circumstances.
The Court refers to the Heads of Agreement – Interim, relating to the father providing a report from his treating psychologist. The Court notes that the father stated in his last affidavit that he is no longer willing to attend upon a psychologist so as to provide a report from his treating psychologist in compliance with the Heads of Agreement – Interim, “as I do not believe that there is any need to do so and my GP has confirmed that it is his view that it is not required”.
The failure of the father to comply with that part of the Heads of Agreement – Interim providing for him to provide a report from his treating psychologist also represents, in the view of the Court, a significant change in circumstances.
The Court notes that the Heads of Agreement – Interim provides for the parties to instruct an agreed psychologist to provide a report considering whether overnight time by the child with the father should commence and if not, then at what age it should commence.
In this context, the Heads of Agreement – Interim by its terms effectively sought to displace the consent parenting orders of 2 July 2012. The terms of the Heads of Agreement – Interim effectively provided that overnight time by the child with the father was not to occur until an expert psychologist report was provided commenting upon the appropriateness or otherwise of such overnight time, yet under the July 2012 orders, overnight time was to commence from 19 August 2014. In this context, the Court notes that such overnight time has not yet occurred.
On 27 May 2014 the mother’s solicitors wrote to the father’s solicitor’s enclosing Dr V’s email of 27 May 2014 indicating her willingness to do a report with interviews in early July 2014 and a report by mid-July 2014. The father’s former solicitors responded by stating that they will contact the father in relation to that Doctor’s preparedness to prepare a report.
The father’s solicitors suggested Dr R as an expert report writer and provided his CV on 21 July 2014 to the mother’s solicitors. They asserted, inter alia, in that letter that because the father had filed a Contravention Application with the Court, a report was no longer appropriate but stated that in the event that a further report does become necessary, it is anticipated that the father would seek to appoint Dr R as the expert report writer.
On 12 August 2014 the mother’s solicitors suggested to the father’s solicitors that they consider again retaining Dr V to do the expert report and noted that Dr R's CV had still not been provided.
On 22 August 2014 the father’s solicitors wrote to the mother’s solicitors stating, “Noting that the parties have been unable to reach an agreement (and appear unlikely to do so) with respect to Dr R and Dr V, to progress the matter the writer proposes that the parties make inquiries with another psychologist.”
In the view of the court, the failure of the parties to reach agreement pursuant to the Heads of Agreement – Interim as to the selection of an expert psychologist to prepare an expert report (considering whether or not overnight time for the child with the father should commence and if not, at what age it should commence), constitutes a significant change in circumstances. Moreover, the proposed appointment of an expert psychologist to consider the issue of overnight time by the child with the father runs contrary to the specific overnight time orders set out in the 2 July 2012 consent parenting orders and also represents a significant change in circumstances.
The Court notes that it would appear that the report from the proposed expert psychologist, referred to in the Heads of Agreement – Interim relating to whether or not overnight time for the child with the father should commence, and if not, at what age it should commence, would have assisted the parties in their management of the child.
In the view of the Court, the above significant changes in circumstances since the orders of 2 July 2012, whether considered individually or cumulatively, represent a relevant change in circumstances pursuant to the principles in Rice v Asplund (1979) FLC 90-725, as explained by later decisions of the Family Court of Australia and Full Court of the Family Court of Australia. Viewed either individually or cumulatively, they justify the serious step of considering whether the orders made on 2 July 2012 continue to remain in the child’s best interests.
The Court will now consider, pursuant to section 60CC of the Family Law Act 1975 (Cth) (the “Act”), the likelihood that fresh parenting orders will be made by reference to the changed circumstances.
In this context, the Court refers again to the decision of Foster J in Sampson & Hartnett (supra):
56.In the context of the “rule” in Rice and Asplund the disposition of the mother’s application is determined by having regard to the best interests of the children (Poisat [2014] FamCAFC 128).
57.These are proceedings that fall to be determined pursuant to Part VII of the Family Law Act 1975(“the Act”).
58.The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode (2006) FLC 93-286. The Full Court in Goode & Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR(2010) 240 CLR 461 affirmed the legislative pathway.
59.Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
60.Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
61.Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
62.Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility save for exceptions set out therein.
63.If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
64.Whilst the discussion above sets out the legislative pathway in relation to most parenting matters, in this matter there are already in place existing final orders after a protracted final hearing. (The Court notes that in these proceedings the prior final parenting orders were by consent).
65.The Court is required to determine whether the issue as to appropriate parenting orders in relation to the subject children should be reopened and the parties be permitted as they have done in the past, to engage in what would be most likely be protracted litigation. (Again the Court notes the prior final parenting orders were by consent).
66.The Court is required to focus on the best interests of the children in considering whether the mother’s application should proceed or not.
67.The primary considerations are:
a. The benefit to the children of having a meaningful relationship with both of the children's parents; and
b. The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2) and the primary considerations
The primary considerations are:
a.the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b.the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents;
Both children would appear to have a meaningful relationship with each parent and would benefit from a continuation of those meaningful relationships.
The negative effect on both the mother and the child of compliance with the 2 July 2012 orders and later terms of the Heads of Agreement – Interim which the Court notes are less onerous than the current order 8.7 (and prospectively order 8.8) of the 2 July 2012 orders, carries the real risk that the child’s meaningful relationship with both parents will be detrimentally affected if the said current order 8.7 (and prospectively 8.8 of those orders) is implemented. On the evidence before the Court, it is likely that implementation of such orders will lead to a significant negative impact on the mother and the child. Further, the mother’s parenting capacity for the child could well be detrimentally affected, noting also inter alia, the mother’s evidence regarding her onerous work roster. Further, the conflict between the parties also including the paternal grandmother at changeovers and the impact on the child may well detrimentally affect the child’s relationships with one or both parents. The Court would likely give significant weight to this meaningful relationship primary consideration.
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The continuing conflict between the parties, including conflict involving the paternal grandmother, in particular at changeovers, appears to be negatively impacting the child.
The apparent deterioration in the father’s mental health may well have an adverse impact upon the child, in particular if the father’s parenting capacity is confirmed to be compromised by the deterioration in his mental health.
The Court notes that the parties themselves in the Heads of Agreement – Interim paragraph 2, despite the 2 July 2012 orders providing for overnight time by the child with the father, effectively moved away from that order by agreeing to appoint a psychologist to consider whether overnight time should commence and if not at what age it should commence.
It is likely that the Court would give significant weight to this need to protect primary consideration.
Best Interests of the Child: The Additional Considerations: s 60CC(3)
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
Although the Court notes the tender age of this child, the evidence does indicate that the child is reacting adversely to conflict between the parties, including the paternal grandmother; for example, the child’s behaviour at changeover is oppositional and unsatisfactory.
The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child);
The Court refers to the meaningful relationship primary consideration above. The child has been having contact with her grandparents.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child;
The parties have not been able to mediate in relation to their differences in respect of parenting arrangements. Both parents sought to so participate, in particular, in relation to the Heads of Agreement – Interim but the father ultimately declined to abide by its full terms, including the provision of a detailed treating psychologist report. The parties were unable to reach agreement on the choice of a suitable expert psychologist to provide a report in relation to the issue of the child spending overnight time with the father.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Both parents appear to have fulfilled such obligations.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child has been spending time with the father pursuant to both the 2 July 2012 orders and the Heads of Agreement – Interim providing for monthly visits to Canberra but which has been occasionally varied by the parties noting, inter alia, that the child between August 2014 and February 2015, went to Canberra about every five to six weeks. The Court has discussed the negative effects upon the mother and child of these visits.
The father seeks to enforce, inter alia, order 8.7 of the July 2012 orders, providing for fortnightly time with the father effectively involving the child travelling to and from Canberra each fortnight. Such an arrangement is likely to have deleterious effects upon the child as well as the mother with the latter experiencing a reduction in her parenting capacity of the child.
The Court notes that the mother’s proposed interim orders in her fresh parenting Application provide, from 22 August 2015 until 18 August 2017, for the child to spend time with the father each third weekend with visits to Canberra every six weeks. The child’s meaningful relationship with the father should not be detrimentally affected by not spending time with him each fortnight pursuant to the 2 July 2012 orders, noting the mother’s proposals provide, inter alia, for the child to spend time with the father each third weekend.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There are such practical difficulties in these proceedings by reason of the mother’s residence in Sydney and the father’s residence in (omitted) Canberra.
The evidence before the Court, at least at this interim stage, indicates that there have been negative effects experienced by the child and the mother spending time with the father pursuant to the terms of the July 2012 parenting orders and even pursuant to the later Heads of Agreement – Interim terms. The prospect of the child and the mother being able to cope with fortnightly travel to and from Canberra (at least in respect of child), pursuant to order 8.7 (and prospectively order 8.8) of the July 2012 orders, is unlikely.
The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The father’s mental health issues, including crying in front of the child demonstrates in this respect at least on a prima facie basis, an incapacity on the father’s part to provide for the emotional needs of the child.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant;
The child is only four and a half years of age. The Court refers to its discussion above in relation to the practical difficulty of the child travelling to and from Canberra on a monthly basis and prospectively on a fortnightly basis under the July 2012 orders.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The Court refers to its discussion above in relation to the father’s mental health issues including his crying in front of the child. The Court notes the father’s unwillingness to comply with the agreed terms of the Heads of Agreement – Interim including his unwillingness to provide a report from his treating psychologist.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
On the evidence before the Court to date, the proposed interim and final orders of the mother (apart from other fresh parenting orders which the Court prospectively might make), would be less likely to lead to the institution of further proceedings in relation to the child.
Inter alia, the continuation of the July 2012 orders, for example order 8.7, providing for the child travelling to and from Canberra on a fortnightly basis would on the evidence before the Court at this interim stage, likely result in the child and mother experiencing deleterious effects and result in further proceedings in relation to the child.
Any other fact or circumstance that the Court thinks is relevant;
The past lack of availability of mediation to the parties (and also noting the breakdown of the parties’ Heads of Agreement – Interim terms) in the context of their past disputation, will likely lead the Court to making fresh parenting orders enabling the parties to attend mediation, or other alternative dispute resolution, in the event of difficulties arising relating to the implementation of fresh parenting orders.
On the evidence before the Court, the consent July 2012 parenting orders led to the child and the mother experiencing deleterious effects both physically and emotionally. The parties entered into a Heads of Agreement – Interim which, inter alia, was not complied with by the father and did not alleviate the problems experienced under the July 2012 consent parenting orders and the father now seeks to revert to the July 2012 orders. There continues to be significant conflict between the parties in relation to what they each regard is the optimum parenting arrangements for the child and the child is exposed to this conflict to her detriment. The re-opening of parenting proceedings between the parties is justified so as to enable fresh parenting orders to be made; the benefit to the child of fresh parenting orders which can effectively operate, outweighs any detriment to the child of further parenting proceedings.
For the purpose of this Rice v Asplund interim hearing, prospectively evaluating the above discussed primary and additional considerations under section 60CC of the Act, it is likely that it will be in the best interests of the child to make fresh parenting orders which are significantly at variance with the 2 July 2012 consent parenting orders; in particular, there is a likelihood that:
(1)The Court would vary existing orders 8.7 and 8.8 of the 2 July 2012 parenting orders, in relation to the child’s time with the father.
(2)The Court would make fresh parenting orders with a view to alleviating conflict issues especially in relation to changeovers.
(3)The Court would make parenting orders regarding mediation or alternative dispute resolution, to enable the parties to resolve any difficulties with the implementation of fresh parenting orders.
Again, the Court is of the view that the significant changes in circumstances previously discussed in these reasons, whether considered individually or cumulatively, make it necessary or proper in the best interests of the child to allow further parenting proceedings.
The Court is of the view that the Applicant mother has discharged the onus upon her pursuant to the principles in Rice v Asplund and she should be permitted to now seek fresh parenting orders and proceed with her Further Amended Initiating Application filed 20 August 2015.
The father’s application in his Response filed 9 September 2014 seeking to dismiss the mother’s Initiating Application filed 11 August 2014 and application seeking to dismiss the mother’s Further Amended Initiating Application filed 20 August 2015 will be dismissed.
I certify that the preceding one-hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Newbrun.
Date: 11 May 2016
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