Galloway & Steele
[2021] FamCA 508
•21 July 2021
FAMILY COURT OF AUSTRALIA
Galloway & Steele [2021] FamCA 508
File number(s): SYC 6615 of 2007 Judgment of: HARPER J Date of judgment: 21 July 2021 Catchwords: FAMILY LAW – PARENTING – Whether the principles of Rice and Asplund apply at a preliminary stage – Where previous judgments given by the Court in 2012 and 2015 – Where the father has sole parental responsibility for the child, and the child lives with the father – Where existing orders provide for mother to spend time with the child as agreed with the father or as ordered by the Court – Where the father has consistently offered supervised time with the mother – Where the mother has consistently refused to engage with supervised time – Where the mother has had little contact with the child since December 2015 – Where the mother seeks overnight time and spend time with orders with the child – Whether sufficient changes demonstrated to provoke relitigation of parenting orders – No sufficient change of circumstances demonstrated – Substantive Application dismissed. Legislation: Evidence Act1995 (Cth)
Family Law Act 1975 (Cth) ss 45A, 60CA, 60CC, 64B(1)
65AA, 65D, 65DA, 68L, 69ZM, 69ZN, 69ZQ, 69ZT
Family Law Rules 2004 (Cth) r 10.12
Cases cited: Carriel & Lendrum (2015) FLC 93-640
CDJ v VAJ (1998) 197 CLR 172
Defrey & Radnor [2021] FamCAFC 67
DL & W (2012) FLC 93-496
Edwards & Edwards (2006) FLC 93-306
Freeman and Freeman (1987) FLC 91-857
Galloway & Steele [2011] FamCA 550
Galloway & Steele [2015] FamCA 1215
Gaul & Gaul [2000] FamCA 12
Gotch & Gotch [2009] FamCAFC 3
Jaynes & Rundle [2020] FamCAFC 292
Judd & Pryor (No. 2) [2020] FamCA 934
King v Finneran (2001) FLC 93-079
Langmeil & Grange [2013] FamCAFC 31
Marriage of Zabaneh (1986) FLC 91-766
Marsden & Winch (2009) 42 Fam LR 1
Miller v Harrington (2008) FLC 93-383
Poisat & Poisat (2014) FLC 93-597
Reid & Lynch (2010) FLC 93-448
Rice & Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570
SCVG & KLD [2014] FamCAFC 42
Searson & Searson [2017] FamCAFC 119
SPS & PLS (2008) FLC 93-363
Tabb & Tabb [2017] FamCAFC 169
Watson & Watson [2018] FCCA 1791
Number of paragraphs: 149 Date of hearing: 12 May 2021 Place: Sydney Counsel for the Applicant: Mr Page QC Solicitor for the Applicant: Michael Dwyer Solicitor Solicitor for the Respondent: Holmes Donelly & Co Solicitors Solicitor for the Independent Children's Lawyer: Reid Family Lawyers ORDERS
SYC 6615 of 2007 BETWEEN: MS STEELE
Applicant
AND: MR GALLOWAY
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
HARPER J
DATE OF ORDER:
21 JULY 2021
THE COURT ORDERS THAT:
1.The Initiating Application filed on 26 October 2020 by the Applicant Mother be dismissed, together with the Respondent’s Response thereto.
2.For the avoidance of doubt, the Application in a Case filed by Applicant Mother on 10 December 2020 be dismissed, together with the Respondent’s Response thereto.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Galloway & Steele has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These proceedings concern the child, J, born in 2007 and presently 14 years of age (“the child”).
By way of an Initiating Application filed on 26 October 2020, the Applicant Mother, Ms Steele (“the mother”), seeks both final and interim orders. The child’s father is the Respondent, Mr Galloway (“the father”). There is also an Independent Children’s Lawyer (“ICL”) in this matter.
On both an interim and final basis, the mother seeks that the current parenting orders, which were made by his Honour Justice Loughnan following an undefended hearing and on a final basis on 17 December 2015 (“the current orders”), be varied. The current orders relevantly provide:
(3) That the father have sole parental responsibility for the child, J born … 2007 (“J”).
(4) That J live with the father.
(5) That J spend time with the mother as agreed with the father or as ordered by the court.
(6) That notwithstanding any other order, J spend time with the father from 9.00 am to 5.00 pm on Father’s Day.
(7) That each parent is restrained from denigrating, or permitting another person to denigrate, the other parent in the presence or within the hearing of J.
(8) That J shall be known as “J Galloway-Steele” and each party shall be and is hereby restrained from registering or referring to the child’s family name as any name other than “Galloway-Steele”.
(9) …
(10) …
(11) That the father shall notify and keep notified the mother of the names and addresses and telephone contact numbers of each J’s medical practitioners.
(12) That in the event of any dispute between the parties with regard to the implementation of these Orders, the parties shall attend, in the first instance and prior to commencing court proceedings (except in the event of any urgent issue) a round table conference with the Independent Children’s Lawyer with a view to discussing and resolving the dispute.
In orders made on 25 November 2020, Registrar McGrath noted the following:
•The Rice & Asplund threshold question as to whether the proceedings should again be reopened will require judicial determination.
•The parties have confirmed that all material to be relied upon at the threshold hearing has already been filed.
By orders made on 16 February 2021, Registrar Bastiani ordered all applications be listed before Registrar McGrath for procedural hearing on 15 June 2021 via Microsoft Teams “on the assumption that the Rice and Asplund hearing will have taken place”.
It was thus the common expectation, at least up to 16 February 2021, that the mother’s application required, as a preliminary determination, consideration of the principles articulated in Rice & Asplund (1979) FLC 90-725; 6 Fam LR 570; [1978] FamCA 84 (“Rice & Asplund”). I will discuss these principles in more detail later in these reasons, however, it should be briefly noted here that these principles require consideration of changes in circumstances in the overarching context of a child’s best interests. Their application at a preliminary stage would require the mother’s application to be dismissed.
The Full Court in Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 (“Marsden & Winch”) at [44]-[47] emphasised that procedurally an important question is whether the principles are applied in a preliminary way. It is well established, in relation to discharge or variation of final orders, that it is a matter of discretion whether to approach the resolution of the Rice & Asplund issue by way of preliminary hearing or a full hearing.
The hearing on 12 May 2021 was conducted as a preliminary determination, as was intended at the time the hearing was set down. I agree with his Honour Judge Kelly in Watson & Watson [2018] FCCA 1791 at [376] where he said: “[t]he preliminary issue presented on a Rice and Asplund application is more properly seen as a threshold question which, if answered in the negative, will dispose of the need for any further hearing.”
By the time of the hearing on 12 May 2021, the mother’s position appeared to be that her application for fresh parenting orders should not be the subject of a preliminary determination, but should proceed further, at least as far as obtaining a family report and a full investigation of the views of the child. For the reasons which follow, I disagree. I am satisfied the mother’s application is appropriately dealt with as a preliminary or threshold question, should not proceed any further, and should be dismissed in the best interests of the child.
BACKGROUND
The father is presently 49 years of age and was born in 1971.
The mother is presently 47 years of age and was born in 1973.
The parties did not cohabitate. They started their relationship in September 2003 and ended it in May 2006.
The background of these proceedings is set out in detail in two earlier judgments: Galloway & Steele [2011] FamCA 550 at [7]-[74] (“the 2011 judgment”) and Galloway & Steele [2015] FamCA 1215 (“the 2015 judgment”). It is necessary to refer to these earlier judgments of Fowler and Loughnan JJ in some detail to properly contextualise the mother’s present application.
The 2011 Judgment
Fowler J did not find the mother to be a witness of credit:
287. The mother, in the giving of her oral evidence, was evasive. There were some long pauses in her responses. She failed to answer certain questions put to her and declined to answer at least one question. She answered other questions in a way inconsistent with her diary entries. She also changed her evidence on some matters as she went along.
288. In her affidavit material, the mother omitted facts of which she had a diary record which might be thought to assist the father.
289. The mother sought to explain those differences as being in part due to a lack of attention by reason of the need for haste in signing the document. However, in interim proceedings in this Court, she had signed affidavits with the same differences and allegations in them.
Fowler J concluded that where the mother’s evidence conflicted with that of the father, the father’s evidence should be preferred: at [295].
Fowler J was satisfied that the mother held an intractable and negative view of the father as an abuser and danger to the child. Fowler J rejected such contentions and made no findings of abuse by the father. In particular, his Honour said:
310. The Court also accepts the father’s denials of sexually inappropriate behaviour or violent behaviour with his son and it is noted that the expert evidence of the relationship between the child and his father betokens no fear or apprehension which would often attend such an abuse as is alleged.
…
320. The mother asserts that the father has also been guilty of physical abuse of the child. She refers to statements that she says that he has made as to being tied up in a dark room by his father. There is no physical evidence of abuse. The father denies it and he impresses as a witness of truth. The statements and conduct of the child in this regard also have to be put into the same context of manipulation of the mother by the child.
…
326. The Court finds that there is no evidence which would sustain the assertions of sexual or physical abuse and also finds that the evidence does not convince it that there is an unacceptable risk of harm in the care of the father.
When discussing the primary consideration under s 60CC(2)(b) and the risk of harm in the mother’s care, Fowler J said:
329. There is little doubt on the evidence that the mother has a continuing and abiding suspicion of the father. This is apparent since 2008. She believes that he “grooms” J. She does not believe that he loves J; an assertion which is belied by the father’s conduct and the observation of the father and the child.
330. The mother has no doubt that the child’s misbehaving conduct is the product of abuse by the father yet she refers to such conduct arising at about the same time as a friend Mr C came into her life. Notwithstanding this, it is the father alone who is the target of her convinced view that something untoward has happened.
331. The child’s statement said by the mother to be made, “Mummy I do it I do it I do it I tickled him I tickled the man”, was made after the child had been in the presence of Mr C and had put his hand up a shorts leg and touched Mr C’s genitals. Yet the mother refers to the child’s statement as evidence of sexual abuse by the father.
…
333. In addition it is clear that the mother has a continuing lack of trust in the father because she regards him as not only a liar but a manipulative person with an obsession for control.
334. The mother’s diaries were produced and the material contained in them was to some extent inconsistent with that contained in her affidavit which put the father in a light worse than her diary notes would suggest was warranted.
335. This seems to indicate the extent to which the mother would go to denigrate the father. The Court notes that the affidavit evidence of the father’s sexual practices did not contain any suggestion that the practices were consensual which the oral evidence established they were. It seems more probable than not that their recounting was intended to be simply prejudicial to the father.
…
338. The mother cannot accept it seems that it is her parenting style which is inappropriate for this child and the cause of his behaviour. She seems to continue to adhere to the view that his behaviour is solely the result of abuse by the father.
339. The mother’s faith in her view, found by the Court to be unsustainable that the child was in any danger from the father, is supported in her by her continuing relationship with and encouragement from the father’s brother and his brother’s wife who seem to have an idée fix in relation to the issue of child abuse.
340. The mother can only bring herself to say that the child’s ordered behaviour in the father’s care is occasioned by fear of the father, a view which is neither shared nor demonstrated by the supervised contact observations nor the observations of Dr W whose description of the relationship betokens no such fear.
On the question of protecting the child from harm, and s 60CC(2)(b), Fowler J concluded:
348. It seems probable that if the child is permitted to continue to live with the mother and spend most of his time with her, given her unyielding attitude to the father, that the child will continue to be barraged perhaps non-verbally with an attitude of fear emanating from the mother of the care of the father for him. Such an indoctrination of fear, perhaps unknowingly provided, has the propensity to destroy the child’s relationship with his father.
349. The Court concludes on the evidence that it is more probable than not that the mother cannot shift her attitude to the father.
350. In the circumstances referred to above the Court finds that there is a significant risk of harm to this child (increased by reason of him suffering from Oppositional Defiant Disorder) in the continuing care of the mother.
351. If there could be a change in the mother’s insight and ability to parent and ability to promote on a normal basis a relationship between the child and the father things might be different but the Court is left with concern that at least for the time being that is not possible.
In relation to the additional consideration set out in s 60CC(3)(b) at [359] - [366] Fowler J said:
359. There appears little evidence that the mother is anxious to facilitate a close relationship between the child and the father and, notwithstanding her protestations that subject to the child being safe she would, she has, it seems likely, little chance of accepting that the father is not a threat to the child.
360. Her attitude is unyielding and she firmly clings to the view that the child’s behaviour is a product of the father’s abuse and nothing to do with her parenting style.
361. In some of her beliefs she clung to visions of bad behaviour by the father in circumstances where he only saw the child under supervision. She sees herself, in the words of Dr W, the single arbiter of her son’s welfare.
362. The determination of the mother to restrict the relationship between the father and child has been evidenced in a number of ways including her disobedience of Orders. Although on one occasion the mother sought to say that the Department of Community Services (as it then was) advised her to breach the Orders she in cross-examination admitted that this was not so and that it was her own response.
363. Other reference is made above to some of the matters the Court has taken into account in coming to the finding that her willingness and ability to encourage such a relationship as is referred to is impaired and include her unyielding distrust of the father and her belief that he has “special powers” and that, for example, his taking of the child to his house during a supervised visit was “for J to get triggered and to send me the message that he is the God of Control”.
364. Dr W notes, “Her distrust of him is evident and if the range of her concerns is an indication, the matters of which she makes an issue may be rather indiscriminate”. This is a reference to the mother’s complaints about the child’s diet and the attendance of the father’s mother at the longer of the supervised visits.
365. Dr W said that the mother’s view of the father, which appeared to be supported by people who surrounded her, were views which would be difficult to shift.
366. There is no evidence that suggests that the father would not provide encouragement to the child to maintain a relationship with the mother and orders sought clearly indicate such an intention.
Under s 60CC(3)(l) Fowler J said:
383. It is always undesirable for children to be the subject of litigation between parents they love. However in this case one cannot escape the view that with the child in the mother’s care there would be a strong likelihood of litigation continuing. Her distrust of the father and her non-compliance with Orders suggest that this is a reasonable assumption at least on past history. She has pursued this litigation with a conviction as to the rightness of her cause and in following that path has resorted to disobedience of Orders, giving less than a frank account of events and placed at all times the pursuit of her view and its presentation above her obligations to make proper disclosure and give all relevant evidence it seems. Her views of the father are it seems entrenched. One could be reasonably assured that an Order directing that this child live with her given her views would indeed be likely to lead to further litigation. The Court therefore finds that the Orders that it proposes to make are less likely to lead to the institution of further proceedings in relation to the child.
It can be seen that about ten years ago the mother held an intractable and negative view of the father and alleged the child was at risk in his care. She held an apparently unshakeable belief that the father was dangerous, manipulative and controlling. Fowler J found her to be capable of evasion and failing to disclose relevant information. Fowler J was persuaded the mother was unlikely to change her views of the father. He formed the clear view, supported by expert evidence, that the child would be at risk in the mother’s care. Of particular importance to the present application is the finding of Fowler J that the mother was likely to engage in an indoctrination of fear designed to destroy the child’s relationship with the father, and her inability to perceive or accept that her own parenting style may have contributed to behavioural problems in the child evident at that time. Fowler J also held the view that the mother would be unable to promote the child’s relationship with the father.
The 2015 Judgment
After the judgment of Fowler J, the proceedings came before Loughnan J on 17 December 2015 for an undefended hearing because the mother failed to appear. The events between 2011 and 2015 were recorded by Loughnan J as follows:
7. There was a seven-day trial commencing on 1 February 2011 before Justice Fowler and on 8 July 2011, reasons for judgment were published and orders were made. They provided for the parents to have equal shared parental responsibility for the child, that the child live with the father, have no time with the mother for 12 months and that there be an updated report, presumably from Dr W, after about eight months. There was an appeal in relation to that decision, presumably by the mother, and that appeal was dismissed on 31 January 2012.
8. There was an agreement reached between the parties and orders were made in terms of their agreement on 18 May 2012 providing for a change in the mother’s time with the child. In June 2012 the mother first had some unsupervised time with J. On 26 November 2012 abuse allegations were again made against the father in relation to the child. There were reports made to the New South Wales Police in February 2013 and January 2014. That has only come to light since those things occurred. The father was not ever advised about those reports directly.
9. From 2014 to May 2015 the mother failed to exercise time with J in the midweek. There was a dispute between the parties about the mother taking the child to a wedding of a relative of hers in Queensland in about May 2015. On 13 May 2015 more allegations were made by the mother or through the mother to the New South Wales Police. The child was retained by the mother on 17 May 2015 and an apprehended domestic violence order was granted against the father ex parte. On 20 May 2015 a final domestic violence order was refused and the child was ultimately returned to the father by New South Wales Police.
10. 25 May 2015 saw two binders containing allegations against the father provided to the police. On 11 June 2015 the Department of Family and Community Services were involved, based on new notifications and on 17 June 2015 the father made an application for a suspension of the mother’s time with the child. There has been a review at the initiation of a senior officer of New South Wales Police into the allegations made against the father and in the course of that review there was a conclusion that, in the latter stages at least, although the mother was initiating allegations against the father, she was seeking to disguise or hide the fact of her involvement.
11. There is a very extensive review report by Detective Sergeant AB of V Local Area Command dated 19 June 2015. It has been redacted to some extent. It recommends that apprehended violence order applications that were to be put to the V Local Court on 24 June 2015 be withdrawn. It appears from the police records that her recommendations were accepted. In a summary which is exhibit 4 of the report the police record shows there was evidence in the responses made by the child of coaching. He mixed up with allegations of physical violence, issues about the father being greedy or selfish and later unfaithful, to various people. The suggestion is that those complaints were given equal weight by the child but they are not of equal seriousness.
12. That behaviour shown by the child was consistent with behaviour that led to the earlier report of Dr W which in turn led to very significant orders for the reversal of the child’s living arrangements with his primary caregiver. The fact that the child was unable to give details of any of the allegations of assault and the story in relation to particular things did not ring true. A journal said to have been maintained by the child contained expressions the child did not understand, words correctly spelt that, in the opinion of police, the child probably would not be able to spell. There was an assertion in the child’s writing to the effect that the journal was in his writing. It is difficult if not impossible to imagine that unaided, the child would have had the concept of trying to defend the proposition that his words were not his own. The journal said:
“This is not my mum’s writing.”
13. The police have recommended that the issues concerning the child were not really matters for the police, the Local Court or apprehended violence proceedings, but something about custody. It was noted that the mother had made no further urgent interim applications and it was noted that the mother had expressed a lack of confidence in the court. It was noted that the AVO conditions sought at the insistence of the mother or her connections were in direct contradiction of the Family Court orders. The police noted an inconsistency in the mother’s narrative, failing to mention what were the current allegations of physical assault and referring to things that had been the subject of earlier and old allegations. There was something of a concern in the report about serving officers of the police or retired officers of the police giving assistance to the mother. A term of the proposed AVO related to an allegation that the child had been exposed, unprotected to a heavy hail storm. Police noted the physical location, that there was cover available, that the father gave an explanation that he had put the child’s hand out to feel the hail. That was seen to be a very different scenario than that painted in the documents supporting an AVO. The report noted that an allegation in relation to a particular assault, punching the child in the testicles, was not raised by the child with the police and was denied by the father. In any event it was thought by the police that there might have been some physical indication of such an assault.
14. The fact that the mother had not provided all the information she gave to one authority to another and the mother’s explanation for not doing so was not accepted and was clearly wrong according to the police. The mother denied speaking to the Department in relation to a matter but the department said there had been multiple notifications by the mother to them about those issues.
In relation to risk of harm in the mother’s care and the views of the child, Loughnan said:
20. Fowler J largely made findings in accordance with the report of Dr W, finding a significant risk of harm to the child in the continuing care of the mother. In effect his Honour found that there was a meaningful relationship with both parents but highlighted there had been difficulties and there would be difficulties in the future in relation to sustaining that relationship with the mother. His Honour optimistically opined about the mother perhaps gaining some insight into things.
21. As to the risks, his Honour rejected all of the allegations made against the father and talked about the risks presented by the mother’s behaviour. He concluded that it was more probable than not that the mother would not be able to change her attitude to the father and, as I say, found a significant risk of harm in the mother’s care. As to the wishes of the child, I do not know that there is a recent expression of the child’s wishes in the evidence before me. Fowler J found that the child was of an age where his views would carry small weight. That is still the case here.
22. In any event, the child is coming up for nine years of age. If the child was at risk in the mother’s care, his wish to be with the mother would not be given significant weight. If the child is not at risk in the father’s care then his wish not to be with his father would not be taken into significant account. The other problem is the subtext of the proceedings, whereby the child has had a very rough ride because of the campaign that has been maintained by the mother. That has put him in a position where he has had a narrative to report on but he cannot maintain it because it was inconsistent with his experience. His views are not important.
When Loughnan J turned to the considerations of change of circumstances and the capacity of the parents, he said:
26. The likely effect of change on the child, well, on the face of the evidence a change from the father’s care would be disastrous. No one is seeking such a change but it would put the child back in a situation that has been perilous for him. As to the effect on the child from separation from either of his parents, that is complicated. Accepting for the moment that the mother has a lot to offer the child, she needs to be well and the balance between the damage done and the benefits unfortunately seems to have been weighed in the negative. The other practical problem is that the mother does not seek any time with the child. It is less than ideal for a child not to have access to a parent but that access needs to be beneficial in itself. As to the practical difficulty and expense of a child spending time or communicating, there is no proposal for the child to spend time with the mother. It is not feasible.
27. As to the capacity of the parents, that was extensively reviewed in his Honour’s judgment. Nothing has happened since, other than to confirm the very issues that Fowler J raised in his decision, now some time ago. His Honour foreshadowed what the problems might be, and they came about, and there it is. Even though she tried to hide her involvement, the police have identified the mother as a major initiator of complaints against the father, none of which have been substantiated. An internal review by the police, conducted at a senior level, has found the allegations to be internally inconsistent. There is other evidence that the child is doing well. Certainly, better than he was. As to the maturity, sex, lifestyle, background of the child, there is nothing that particularly comes to attention there. He is a young boy, of stated age. I do not know that there are any particular cultural or other matters that are raised. As to the attitude to the child and responsibilities of parenthood demonstrated by each of the child’s parents. The father has stuck in for many years, in extreme circumstances. He has had to tell his story again and again. He has been vindicated and supported in a judgment of this Court, after a defended trial. Those matters were upheld on appeal. Then he has had to face that all over again on a number of occasions through the agency of the mother.
28. The mother, on the other hand, apparently supported by some people, has persisted in a ham-fisted campaign whereby her involvement has been apparent in her or someone on her behalf coaching the child, and she has not been able to adequately demonstrate any responsibilities of parenthood. As to family violence: there is no evidence of any. The child has been the subject of systems abuse. You can see that the authorities have avoided repeated interviews on occasions, but nevertheless the child has been the subject of welfare inspections, sometimes the boy was asleep, but there have been a number of interviews.
29. One can imagine that the child has been interrogated in the mother’s care. He has apparently been set quite a complicated task in writing out remembering things, the complaints he was to make about his father. That is abusive and violent behaviour, in my view. The definition of family violence was widened in the post-June 2012 amendments to the Act, covering that sort of overbearing, manipulative behaviour. There is no current family violence order that I am aware of.
It should also be noted that in relation to the current orders, Loughnan J said:
30. Whether it would be preferable to make a different order, less likely to lead to further litigation. I do not think one could be sanguine about that. There has been a hearing on an undefended basis. There is some protection in the case law in relation to repeated hearings. There is a sense in which parenting orders are never absolutely final. I would think the mother would have some considerable hurdles in instituting another review of the circumstances for this boy because of her approach to these proceedings in the past, her abandonment of the present proceedings and her conduct.
The judgment of Loughnan J demonstrates that after the 2011 orders, the mother engaged in a campaign of making specious allegations of abuse or violence and complaints against the father between 2012 and 2015, none of which were substantiated. The police formed the view that the mother was a major instigator of these complaints and tried to hide her involvement. Loughnan J accepted the mother coached the child to make allegations against the father. As a result, the child became the victim of system abuse, an outcome clearly brought about by the mother and her irrational campaign against the father. These findings show that between the judgment of Fowler J in 2011 and the judgment of Loughnan J in 2015 the mother continued to hold her intractably negative view of the father, engaged in conduct which was manipulative to create a false narrative about the father in the eyes of police, and likely coached the child to make allegations to achieve her aim of impugning the father generally and damaging the child’s relationship with the parent who was by then his primary carer.
The Current Orders – Order 5
Comment should be made here about Order 5, upon which the mother, in correspondence with the father, places great reliance. To recap, Order 5 is in the following terms:
That J spend time with the mother as agreed with the father or as ordered by the court.
The father has been allocated sole parental responsibility. The child was ordered to live with him. In my view, Order 5 clearly means that the father has been given the discretion as to how and when the child should spend time with the mother. In light of both Fowler and Loughnan JJ’s reasons for judgment, this is hardly surprising. This discretion may obviously include reasonable conditions the father wished to impose, as part of any agreement.
But, as the evidence discussed later in these reasons shows that the mother has been unable to accept that the father was given by the Court control over how any time with the child would be spent by her. To illustrate the point here, for example, in correspondence from the mother’s solicitor to the father’s solicitors dated 26 November 2020, it is asserted: “objectively the current Order that (sic) allows your client to determine [contact with the mother] is not in the child’s best interest”. In other correspondence, the mother’s solicitor seemed to interpret Order 5 as meaning the father was under an obligation to bring about time between her and the child in accordance with her wishes, without any condition such as supervision. Specifically, in correspondence from her solicitors to the father’s solicitors, it is asserted that the father “is required to allow the child…to spend time with our client.”
Neither asserted position is correct. Unless changed, the current orders are by definition in the child’s best interests. The father, as the sole parent to whom parental responsibility has been allocated, is given in the first instance the discretion to set the terms of an agreement about the child spending time with the mother. The mother can propose her own terms, but the father is under no obligation to agree.
If there is no agreement, Order 5 leaves open the possibility Order 5 to be varied by an application to the Court. It is clear, however, that Loughnan J, in making Order 5, did not invite litigation. He was simply acknowledging that there is always potential for fresh parenting proceedings after final orders are made, because circumstances change. This potential is recognised in a number of authorities discussed later in these reasons. Loughnan J anticipated that the principles in Rice & Asplund may play a role in any future application by the mother. This can be seen in his remarks set out at [25] above.
The point is that Order 5 does not give open ended licence for further applications to the Court for fresh parenting orders in respect of the child merely because the mother refuses to agree to the basis upon which the father offers time with the child. The principles in Rice & Asplund can apply to dispatch such an application as a preliminary matter.
FRESH PROCEEDINGS
The father filed a Response the mother’s Initiating Application on 23 November 2020.
On 25 November 2020, the matter was listed before Senior Registrar McGrath who made orders for the appointment of an ICL and placed the matter on the list of cases awaiting allocation of a first date before a Judge, with the notation concerning Rice & Asplund as set out above.
On 10 December 2020, the mother filed an Application in a Case seeking a range of patently extravagant interim orders. For example, the mother sought orders that the Application be heard ex parte, despite the fact the proceedings had been before the Court only three weeks earlier with all parties represented, and the notation of the Registrar that the Rice & Asplund issue would require determination first. The mother also sought orders for the child to spend time with her at Christmas as well as overnight pending the hearing of her application, despite the fact she had spent little time with the child for some five years. The filing was accompanied by a letter from her solicitors claiming the application was urgent. The letter said: “[w]e ask the Court to allow a [sic] list the matter before Christmas in the hope the father will comply with his duty to provide specific timing of (contact) time for the child to spend time with our client”. The mother filed an affidavit in support.
On 19 January 2021, the ICL wrote to both parties setting out J’s views. I will return to this correspondence later in these reasons.
On 12 February 2021, the father filed a Response to the mother’s Application in a Case.
On 16 February 2021, the matter came before Registrar Bastiani who, inter alia, made orders listing the mother’s Initiating Application for a procedural hearing on 15 June 2021 on the assumption that a preliminary hearing would have taken place regarding the rule in Rice & Asplund.
On 2 March 2021, the matter came before Registrar McGrath who made directions that the matter be listed before Justice Henderson for an interim hearing. The Registrar also made orders directing the parties to file and serve their material by no later than 4:00pm on 28 April 2021, specifying that neither party could rely on any documents filed after such dates without leave of the Court.
Due to changes in the judicial calendar, the matter came before me on 12 May 2021 for a hearing to determine the Rice & Asplund threshold issue.
PROPOSALS
The mother seeks final orders as set out in her Initiating Application. I will not set out all her proposed orders. The orders she seeks in her Application in a Case substantially repeat her proposed final orders.
In summary, she seeks that all prior parenting orders be vacated and that, in lieu thereof, the child spend time with the mother by way of variation as follows:
(1) (a) Week 1 from 3.00pm Wednesday to 8.20am Friday; and
(b) Week 2 from 3.00pm Wednesday to 8.20am Thursday and from 3pm on Friday to 8am on Monday.
(2) The Mother shall pick up and drop off the child from school for the start of each period when the child spends time with the Mother unless otherwise agreed.
(3)For any changeover occurring outside of school hours, unless otherwise agreed, the parent with the child will transport the child to the other parent's residence.
(4)During school holidays, normal arrangements will be suspended and unless otherwise agreed the child shall live with:
(a) the Mother from 3pm Friday on the last day of term for half holidays; and
(b) and the Father from 9am for the second half of the holidays until before school on the first day of term.
(5) Despite any other orders made, and unless otherwise agreed, the child shall spend time with each parent as follows: (a) with the Mother on Mother's Day and with the father on Father's Day each year from 6pm on the Saturday before Mother's Day or Father's Day until before school on the Monday (or 9am if not a school day).
(6) Unless otherwise agreed;
(a) In each even-numbered year over the Christmas holiday period, the child shall spend time with the Mother from 3pm Friday on the last day of term for half holidays and the Father from 9am for the second half of the holidays; and
(b) in each odd-numbered year over the Christmas holiday period, the child shall spend time with the Father from 3pm Friday on the last day of term for half holidays and the Mother from 9am for the second half of the holidays until before school on the first day of term.
(7)Unless otherwise agreed, on the child's birthday …, the child shall spend time with the parent they are not living with that day (a) from 10am to 4pm (or 3pm to 6pm if a school day).
(8)That the Father provide written authority to the child's school to provide the Mother with a copy of the child's report cards, photographs, newsletters, or any other written materials in respect to the child.
(9)That the Father provide written authority to the child's school that the Mother be notified of and be permitted to attend all events, parent teacher appointments, activities, or any other events in respect to the child or the school or the parents of the school.
(10)That the Father provide the Mother a copy of the written authority sent to the child's school In order (8) and (9).
(11)That the Mother be able to attend any additional extracurricular activities that the child is involved in outside of the normal school curriculum or school hours.
(12)That each parent is restrained from denigrating, or permitting another person to denigrate, the other parent in the presence or within the hearing of J.
(13)That in the event J is significantly ill and/or injured and requiring medical treatment, the party who has J's care at that time notify the other party as soon as reasonably practicable and provide the other party with notice as to the contact details as to where the child is being treated, Including an address, contact telephone number and name of the treating hospital, medical centre and/or treating practitioner.
(14)That the father shall notify and keep notified the mother of the names and addresses and telephone contact numbers of each J's medical practitioners.
The father seeks that the mother’s Initiating Application be dismissed, with costs.
The ICL submitted that the mother provides no evidence as to a sufficient change in circumstances which would warrant further litigation, and that her Initiating Application should therefore be dismissed. The ICL was, however, concerned that the terms of Order 5 in fact creates pressure for the child from the mother. The ICL submitted that, in the event that the mother’s fresh proceedings were permitted to progress, the Court would be assisted by a Child Inclusive Memorandum. The ICL further submitted that, if the current orders are to be revisited, the following orders would be in in the child’s best interests on an interim basis:
(1)That the father shall have sole parental responsibility for decisions concerning J’s long term care and welfare.
(2)That J shall live with the father.
(3)That there be no Order for J to spend time with the mother.
(4)That the father will do all things to facilitate telephone communication or face to face time with the mother at J’s request.
(5)That the Father shall ensure at all times that J has up to date details of the Mother’s postal address, email address and telephone number in the event J wishes to communicate with her.
(6)That the Mother be permitted to send to the father’s postal address, cards and gifts for J, at Easter, on J’s birthday and at Christmas and the father shall do all acts and things necessary to ensure that:
(a)J promptly receives all letters, cards and/or gifts sent to him by the Mother and the Father shall encourage J to open such letters and gifts and acknowledge receipt thereof to the mother.
(b)J has the opportunity to open the letters, cards and gifts from his Mother in privacy.
(7)Notwithstanding any other order, the Mother is authorised by these orders to obtain directly from S School copies of:
(a)J’s mid and end of year school reports at the Mother’s expense; and
(b)School photograph order forms, so that the Mother has the opportunity to order copies of J’s annual school photograph.
and the Mother is permitted to communicate with J’s school in order to facilitate this order and for no other purpose.
(8)The parties are each restrained from denigrating the other party, or any member of the other party’s families, in the presence or hearing of J.
(9)That pursuant to Section 11(1)(b) of the Passports Act 2005 (CTH), the Father be permitted to apply for and renew J’s Australian Passport without the Mother’s consent.
(10)That pursuant to Section 65Y(2) of the Family Law Act, the Father is permitted to remove J from the Commonwealth of Australia.
(11)That the Father be restrained from causing J to permanently reside outside the Commonwealth of Australia.
(12)That other than as is required to facilitate these Orders, and pursuant to section 68B of the Family Law Act, the Mother is restrained from attending at J’s school, extra-curricular activities in which J may be involved and the father’s residence at any time except as agreed in writing between the parties.
MATERIAL RELIED UPON
The mother relies upon the following documents:
(1)Affidavit of Ms Steele sworn 5 May 2021;
(2)Affidavit of Ms BB sworn 6 May 2021;
(3)Affidavit of Ms CC sworn 5 May 2021;
(4)Affidavit of Ms CC to be sworn 6 May 2021; and
(5)Affidavit of Ms Steele to be sworn 6 May 2021.
It appears the affidavits sworn on 5 May and those “to be sworn” on 6 May 2021 are the same, although the mother did not clarify this in submissions. In any event I have had regard to the material nominated by the mother.
The father relies upon the following documents:
(1)Notice of Child Abuse, Family Violence or Risk of the Respondent Father sworn and sealed on 23 November 2021;
(2)Affidavit of the Respondent Father sworn and sealed 28 April 2021, together with the Exhibits;
(3)Correspondence between solicitors and directly between the parties since the commencement of these proceedings (as collated into the “tender bundle”).
(4)Subpoena material produced from:
(a)S School (S School)
(b)NSW Police Force; and
(c)NSW Department of Communities and Justice
(5)Reasons for judgment of Fowler J of 8 July 2011.
The ICL relies upon the following documents:
(1)Reasons for judgment of Fowler J dated 8 July 2011;
(2)Reasons for judgment of Loughnan J dated 17 December 2015;
(3)Documents tendered from subpoena material; and
(4)Letter from ICL dated 19 January 2021 to the mother’s solicitor Mr Dwyer (cc Ms Donnelly).
The following documents were tendered in evidence
Exhibit No. Description of Exhibit Tendered by? A Bundle of Annexures to affidavits filed 10 May 2021 A/M B Subpoena documents from S School. This exhibit consists of the documents tabbed and marked “A”, “B” and “C” A/M 1 Document titled Index and Exhibits provided electronically R/F 2 Index & Tender Bundle provided electronically R/F 3 Subpoena documents – copy of document from CD City DD CSC. – Department of Communities and Justice – s 33. R/F 4 Subpoena documents from S School. This exhibit consists of the documents tabbed and marked “FA 1” and “FA 2” R/F ICL 1 Subpoena documents from S School. This exhibit consists of the documents tabbed and marked “ICL 6” and “ICL 7” ICL ICL 2 Letter from ICL to the parties dated 19 January 2021, which sets out the child’s views. ICL
Although the affidavits relied upon by the mother were filed late, the father did not object to the mother relying on them. The father did, however, submit that limited weight should be placed on the mother’s affidavit from paragraph 63 onwards, due to its late filing. I will refer to this part of the mother’s evidence only as necessary in the course of these reasons.
At the request of the Court, and during the hearing, the ICL also conveyed her understanding of the views of the child as at the date of hearing. In particular, the ICL told the Court that she had spoken to the child twice and that the child was very clear in his views. The mother objected to this evidence on the basis that the ICL was giving evidence from the bar table and that it was not possible to test this evidence. I rejected this argument, and give reasons below. I permitted the ICL to provide the information to the Court.
THE LAW
Final parenting orders can be varied pursuant to s 65DA of the Act. Section 65D(2) of the Act grants the Court the discretion to make a parenting order that: “discharges, varies, suspends or reviews some or all of an earlier parenting order”. In Reid & Lynch (2010) FLC 93-448; 44 Fam LR 141; [2010] FamCAFC 184; (“Reid & Lynch”) at [232]-[233], the Full Court (per O’Ryan J, Finn and Strickland JJ agreeing) held an order made in exercise of the power in s 65D(2) of the Act is a parenting order, as defined in s 64B(1) of the Act, and should be construed as subject to s 65AA of the Act, which confirms that, by s 60CA of the Act, the best interests of the child are the paramount consideration. While the Court also accepted that “there are no statutory conditions which must be satisfied before a court may vary a parenting order”, as O’Ryan J said at [234], “there are sound reasons why there should be some restraint on the exercise of the power”. O’Ryan J emphasised the need for finality of litigation involving children and said the principles espoused in Rice & Asplund articulate the restraint on relitigation: at [236]-[237], noting variation of final parenting orders is not something lightly undertaken: at [238].
In Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128 (“Poisat”) at [13], the Full Court said:
Whether or not the principles might be properly called a “binding rule”… for present purposes it can be said that the “rule in Rice & Asplund” is of long-standing, has been consistently recognised and applied both in this Court and at first instance, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.
In Rice & Asplund, Evatt CJ, with Pawley SJ and Forgarty J agreeing, at 905-906 stated the principles as follows:
The principles which, in my view, should apply in such a case 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 invite endless litigation for change is an ever present facto 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 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 be best served. These principles apply whether the original orders 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.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.
Later, Evatt CJ said In the Marriage of Zabaneh (1986) FLC 91-766; [1986] FamCA 18 at 75,587;
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.
Since Zabaneh, the Full Court has stressed many times that a child’s best interests are not served by repeated applications for custody: Searson & Searson [2017] FamCAFC 119 at [12] – [15]. In Gaul & Gaul (2000) FamCA 12 at [25]-[26], the Full Court referred to the decision in CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67, observing that the High Court of Australia stressed the extent to which the interests of children are ill-served by “frequent displacements” and “the uncertainty of prolonged and repetitive proceedings”. Further, at [30], the Full Court said that the rule in Rice & Asplund is:
No more than a recognition of the harm capable of being caused to the interests of children, by re-litigating essentially the same issue at the behest of disappointed parties, that results in this Court usually requiring that circumstances have significantly changed since the matter was last litigated or settled.
In Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43, the Full Court said at [57]:
57. 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 the 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 was first demonstrated that a sufficient change in circumstances had occurred since the parenting order was made.
The Full Court in Marsden & Winch reviewed the authorities at length, and at [48] – [50] said:
[48] In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising on when the child attains 18 years of age and the courts no longer have jurisdiction.
[49] However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
[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 t 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.
It should also be emphasised that it has long been recognised that ongoing, seemingly endless and inconclusive litigation has a debilitating effect on parents as well as children: Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23 at 76,470–71; DL & W (2012) FLC 93-496; [2012] FamCAFC 5 at [65].
In Judd & Pryor (No. 2) [2020] FamCA 934 at [16] and [17], Austin J set out the applicable approach as follows:
16. The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund; SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 at [1]; Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 (“Marsden v Winch”) at [48]; Langmeil & Grange [2013] FamCAFC 31 at [43]- [48]; Poisat & Poisat ([2014] FamCAFC 128; 2014) FLC 93-597 (“Poisat & Poisat”)).
17. The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383 (“Miller & Harrington”) at [80]-[83]) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
These proceedings are child related proceedings (s 69ZM), and there is no doubt that the mother seeks parenting orders. Part VII of the Act is applicable. The Court must give effect to the principles set out in s 69ZN(3) - (7) in performing duties and exercising powers in relation to such proceedings: s 69ZN(1). The first principle to which effect must be given 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”: s 69ZN(3). In giving effect to the principles in section 69ZN, the court must, inter alia, “decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily”: s 69ZQ(1)(a). These provisions together constitute a statutory imperative to consider the impact of further litigation, or of allowing the mother’s Application to proceed past a preliminary determination, on the welfare of the child.
Since the hearing was limited to the determination of the Rice & Asplund question as a preliminary issue, while the best interests of the child remain paramount, it is not necessary to take account of and weigh all of the primary and additional considerations prescribed by s 60CC of the Act. Such an exercise would defeat the purpose of the rule in shielding children from involvement in further unnecessary litigation: King v Finneran (2001) FLC 93-079 at [41]; Reid & Lynch at [252]-[259]. In Poisat at [34], the Full Court said: "[t]he nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings (see, for example, SCVG & KLD [2014] FamCAFC 42). Where, as here, there are long standing, existing arrangements, ss 60CC(3)(d) and (3)(l) need particular attention, since they "…relate to the effect of change in the children's lives and the benefit to the children of finality in litigation": Poisat at [32].
It is important to recognise that where an application for a variation to parenting orders is dismissed at a preliminary stage “the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”: SPS & PLS at [81]; Langmeil & Grange [2013] FamCAFC 31 at [46]; Poisat at [40].
Although generally an applicant does not bear a legal onus in a parenting application, he or she does bear the onus of satisfying the test of changed circumstances: Rice & Asplund at 78,907.
In Miller v Harrington (2008) FLC 93-383 (“Miller v Harrington”) at [81] the Full Court held that a preliminary hearing does not preclude "some resolution of factual disputes, for example, whether a change of circumstances has or has not occurred." In Marsden & Winch at [55] the Full Court adopted a formulation which embraced the concept of a prima facie case, saying at [58]:
[The] question might be better formulated in another way in the following proposition (after referring to Miller & Harrington), namely that there is a requirement,
(1) for a prima facie case of changed circumstances to have been established, and,
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
Where a Rice & Asplund question is determined as a preliminary issue, the hearing is conducted on its merits and not upon the principles which apply where summary dismissal is sought: Marsden & Winch at [47] citing Warnick J in SPS & PLS (2008) FLC 93-363 (“SPS & PLS”) at [74]. To afford procedural fairness, the parties must be clear that the preliminary issue may be determinative of the application: Edwards & Edwards (2006) FLC 93-306, [97]-[99]; Miller v Harrington at [95]-[96]; Gotch v Gotch [2009] FamCAFC 3 at [13]; Marsden & Winch, at [56]. This was clear to all parties in this matter.
Recently, in Jaynes & Rundle [2020] FamCAFC 292, Aldridge J sitting as the Full Court confirmed at [12] - [14] the difference between a preliminary hearing on the Rice & Asplund question and a summary dismissal hearing:
12. [Summary dismissal] is not a hearing as to the merits of the matter before the Court. Rather, the Court, taking the applicant’s evidence at its highest (Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 608; Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171; Bigg v Suzi [1998] FamCA 14; (1998) FLC 92-799), determines whether the applicant “has no reasonable prospect of successfully prosecuting the proceedings” (s 45A(2) of the Act). Essentially, the Court is looking at whether the applicant can establish his or her case and not whether the applicant has done so.
13. If the application for summary dismissal is unsuccessful, the original application still requires determination.
14. On the other hand, a preliminary hearing as to whether, having regard to the changes in circumstances, parenting orders should be reconsidered, is a hearing of the matter on its merits, having regard to all of the evidence before the Court and applying the best interests principle. Such a hearing takes into account all of the evidence and may involve “some resolution of factual disputes... for example, whether a change of circumstances has or has not occurred” (Miller & Harrington at [81], quoted with approval in Poisat & Poisat [2014] FamCAFC 128; (2014) FLC 93-597 at [44]). It results in a final determination as to whether the parenting orders should be reconsidered.
In Defrey & Radnor [2021] FamCAFC 67 (“Defrey”), the Full Court (Ainslie-Wallace, Watts and Tree JJ) endorsed this approach at [19] - [22]:
19. In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20. It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21. The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
22. …The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
In her evidence, the mother placed considerable weight on her perception of the child’s views. She referred to the fact that on 23 September 2018 and 7 October 2018, J sent letters to the mother: mother’s affidavit filed 6 May 2021, paragraph 11. These display a level of love and warmth towards the mother from the child.
There was no dispute that mother attended J’s rowing regatta on 13 February 2021. She spoke to the child after his race and claims that he was so happy to see [her] and asked [her] with words to the effect “did you see me race?” As they were saying goodbye the mother states that he embraced [her] again and said words to the effect of “thank you for coming, I love you, bye mum.” She called this a “beautiful mother/son embrace”: mother’s affidavit filed 6 May 2021, paragraph 59.
In written submissions, Queen’s Counsel for the mother contended that the father and the ICL placed very little emphasis upon the fact that since the December 2015 orders, some six (6) years have elapsed and the child is now fourteen (14). He laid emphasis on the need for an investigation into the basis of the child’s views. He contended that there is “no evidence of an examination of J’s wishes, the causes of those wishes and the consequence of those wishes”.
Queen’s Counsel continued:
It is my submission that this Court owes to J, now aged fourteen (14), a substantial investigation of his relationship with his mother and his wishes to spend time with her. There is a real risk in this case, in my submission, that J is under a great deal of pressure to form views that he does not wish to have a relationship with his mother. That is not consistent with the evidence of the mother in the contact she has had with him. There should be no consideration given to the standing of this Application until that part of the investigative process has been carried out properly.
I do not accept these arguments. The suggestion that the child may be under pressure to form views that he does not wish to have a relationship with his mother is contradicted by the evidence. Indeed, the evidence shows that the child’s expressions of warmth or love towards the mother were his attempt to cheer her up, and were a response to the mother’s own distressed presentation. The evidence is supports an inference that any pressure on the child is most likely coming from the mother.
The father and the ICL relied upon documents produced by S School under subpoena. These include notes from the school counsellor. These support the view that the child is settled living with his father and at school, and has expressed clear views about not really wanting contact with the mother. For example, Exhibit 4, dated 26 November 2020 records, “my view was that J seemed very settled with his dad; that I thought Mr Galloway was providing a stable and suitable environment; and that J was saying to me that he wasn’t in a great rush to re-connect with his mum, and that I would be happy to speak with Ms UU”. In Exhibit 4, dated 30 October 2020, it is recorded: “J said he didn’t want to spend time with his mum; that his life is pretty happy right now without her; that he is getting on well with his dad; that he’d like to reconnect with his mum when he is 17; that he’s only seen his mum for “six minutes in the last six years”.
There was evidence that the child currently holds, and has consistently held, the same views concerning time with his mother. In her letter of 19 January 2021, the ICL told both parties:
In essence, J does not want any change to his current arrangements, nor does he want to be drawn into participating in the proceedings either by way of a family or expert report. He reports being settled at school, happy with the living arrangements as they stand and does not, at this stage, want to spend time with his mother in any structured sense. He also expressed to me that he would prefer that his mother not attend at his school or any of his activities, but he is content for her to receive copies of his school reports and school photo order forms. J is extremely concerned that the continuation of litigation will interrupt recent behavioural gains he has made at school and take his focus away from things which are important to him at this time.
When asked by the Court on 12 May 2021 about the child’s views, the ICL responded with the following information:
What I understand are J’s views is that he doesn’t want any structured orders in relation to the time he spends with his mother. He has indicated that when he is 18 he anticipates he will reconnect with her but, I believe, that he feels it would be – well, he has told me that it would be a very big distraction to him to be involved in proceedings again at this time when he’s trying to resolve some of his behavioural issues at school and he’s getting to the business end of his studies. He has – I raised the issues about the letters that he had sent to his mum by way of reality testing what he was telling me were his views. And, in essence, what he said was that when he used to spend time with his mum she was often teary and upset and when he told her that he loved her or missed her that would cheer her up.
He says that he sent those letters as a way of trying to cheer her up. In relation to the affidavit evidence of the mother when she has just turned up unannounced at his events like his rowing regatta or the library at school he says, “Yes, I’ve hugged mum and said I’m pleased to see her and I love her,” and I don’t think there’s any question about that. The issue is that he sees it as being a distraction. These proceedings, as your Honour would be aware, have been extremely high conflict. J has been through a great deal, as has the father, in relation to constant allegations made by the mother over many years about his abuse without foundation and I think J just does not want to be involved in another conflict of that nature.
I accept the submission of the ICL that the child’s age and level of maturity show that his views should be respected.
In my view, the evidence is plain that the child has formed views which are clear, and formed in circumstances where he had little contact with the mother since December 2016. As already pointed out, this has come about because the mother could not tolerate spending supervised time with the child or obtaining assistance from a health professional nominated by the father to facilitate supervised time. While he may feel warmth and affection towards his mother, he also does not want to be involved in litigation between his parents or to risk disruption to his life by being forced into contact with her when he does not want this. There is nothing surprising or incongruent in these views in the circumstances. Indeed quite the contrary. These views do not need investigation.
I note here that Queen’s Counsel for the mother contended that the information of the child’s views conveyed by the ICL had no probative value and the Court should take no account of it. I reject this contention as without merit.
As already pointed out s 69ZT(1) precludes application large parts of the Evidence Act in child related proceedings. The test of admissibility is generally limited to relevance. Furthermore, s 68L(5)(b) imposes a duty on an ICL “ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court” and s 68L(7) and (8) provide as follows:
(7) The independent children's lawyer may disclose to the court any information that the child communicates to the independent children's lawyer if the independent children's lawyer considers the disclosure to be in the best interests of the child.
(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.
The ICL’s letter of 19 January 2021 (Exhibit ICL 2) was obviously relevant, as was the information about the child’s views conveyed orally to the Court. The ICL had a duty under s 68L(5)(b) to provide it to the Court, and express statutory permission granted by s 68L(7) to do so, if she formed the view that disclosure was in the best interests of the child.
CONCLUSION
I accept that there have been changes of circumstances since the current orders were made. Five and a half years have passed. The child is now fourteen years old. He has grown in maturity. He is doing reasonably well at school, in spite of his behavioural problems. While Loughnan J held the child’s views were not important in 2015 because of his age, they are now much more important.
However, what has clearly not changed are some of the fundamental problems in the attitude of the mother towards the father, as well as her intractable beliefs that in some way she has been a victim, that the best interests of the child must be served by him being compelled to spend time with her, and that the father is obliged under the current orders to agree to this happening.
While I accept the mother holds a genuine desire to spend time with the child, the evidence, especially the emails sent by the mother in the last twelve months, persuade me that her attitudes to and beliefs about the father remained unchanged, continue to be extreme, and continue to be informed by irrationalities. She remains driven as much by a desire to triumph over the father as a parent, as she sees it, as any measured understanding of where the child’s best interests may currently lie. The evidence shows she holds an unchanged perception that her own emotional interests are at least as important as those of the child, if not actually paramount. This perception is in serious tension with the structure and provisions of the Act, and the best interests of the child. It is a perception that does not seem to have changed, but if it has, it is a change which provokes resistance to any new inquiry.
In light of the mother’s extreme and irrational views about the father, her focus on the benefit to herself of time with the child, and her ill-founded sense of entitlement to parent the child, I am satisfied it is more probable than not that if the mother’s application was to proceed, there is a real risk the mother will renew and expose the child to her baseless narrative about the father being a malign and dangerous person, while she is the true protective parent, with unceasing pressure on the child to spend more time with her and ultimately align with her. If the litigation proceeds any further the child would become involved in further assessments and know about the litigation between his parents. It seems to me highly likely that he would come to feel pulled in different directions and it would not be possible to shield him, in light of his age, from the aggravation further litigation between his parents would bring. I am further satisfied that if the current orders were changed to compel the child to spend time with the mother, there is an unacceptable risk that the child will, almost inevitably, become trapped in rising conflict between the parents. It is plain, in my view, that exposing a child with impulsivity problems, attention deficits, defiance and aggression issues and a proclivity to attention seeking behaviours, to these factors is likely to be adverse to him. It is likely to derail his present settled progress at school and at home. The negative impact of relitigation would be so considerable as to outweigh any change of circumstances.
It is salient in the circumstances of this case that since December 2015, and despite the constant bogus allegations about the father by the mother in 2016, and her attempts to hold him up to public scrutiny, if not humiliation, he has remained willing to agree to supervised time between the mother and the child, if she took the reasonable step of engaging with his nominated health professionals to help understand her role as a parent and to see beyond herself to the best interests of the child. The mother could have spent time with the child in a structured and supervised way since December 2015. This would have allowed the child to maintain and grow his relationship with the mother in a safe and appropriate manner. If she had properly understood the best interests of the child and that contact with her in the manner proposed by the father would most likely be in his best interests, such contact would probably have been welcomed by the mother. However, she lacks that understanding. She chose no contact, or surreptitious contact at school, over structured supervised time in tandem with therapeutic intervention, as the father proposed.
I have taken account of the ICL’s concern that the current terms of Order 5 expose the child to the risk of more litigation, and dismissing the mother’s application now may not address this problem. I explained the proper interpretation of Order 5 earlier in these reasons (see [27] to [32] above). Section 60CC(3)(l) requires me to consider 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. I am satisfied it would be preferable to make such an order, but I am also satisfied dismissing the mother’s application at a preliminary stage by applying the principles in Rice & Asplund is most likely to achieve this outcome. As already pointed out, until a child reaches their majority, there is always the possibility of further applications for parenting orders. The refusal of an application to alter parenting orders does not bar a further application: Tabb & Tabb [2017] FamCAFC 169 at [24]. But the reasons for dismissing the mother’s Application are the same reasons why such an order is least likely to lead to further litigation. Any further litigation initiated by the mother to vary the existing orders would, in the absence of a sufficient change of circumstances, face significant hurdles in moving past a preliminary stage for the reasons given in this judgment. This reality should encourage, if not impel, the mother to desist from further litigation unless there is some sufficient change of circumstances, as opposed to a revisiting of the many issues of long standing discussed in this judgment.
I have given careful consideration to the mandatory requirement of s 69ZQ(1)(a) of the Act, to decide which issues, if any, raised by the mother or the ICL require full investigation and hearing. I am satisfied, for the foregoing reasons, that none of them require full investigation and hearing. It is in the child’s best interests for the present litigation to be brought to an end as soon as possible.
I conclude that there is an insufficient change in circumstance to warrant permitting the mother to litigate further any change to the current orders. No change has been established, sufficient to provoke a new inquiry in the child’s best interests. The mother’s Initiating Application will be dismissed.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 21 July 2021
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