Garrety & Steyn (No. 2)
[2021] FamCA 277
•4 May 2021
FAMILY COURT OF AUSTRALIA
Garrety & Steyn (No. 2) [2021] FamCA 277
File number(s): NCC 802 of 2013 Judgment of: AUSTIN J Date of judgment: 4 May 2021 Catchwords: FAMILY LAW – CHILDREN – Rice & Asplund issue – Where final parenting orders were made in December 2014 requiring the children to live with the father – Where final parenting orders were made again March 2019 reversing the children’s residence – Where the father seeks to re-contest parenting orders again on the basis of changed circumstances – Where the mother denied any material change of circumstance – Where there has been continued involvement of police, ambulance officers and emergency doctors in relation to the children’s welfare – Concluded there has been a material change of circumstances – Where the mother applied to transfer the proceedings from Newcastle to Parramatta – Order made. Legislation: Family Law Act 1975 (Cth) Pt VII Cases cited: Garrety & Steyn [2021] FamCA 67
Marsden v Winch (2009) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
SPS & PLS (2008) FLC 93-363
Walden & Cooper [2020] FamCA 104
Number of paragraphs: 42 Date of hearing: 3 May 2021 Place: Newcastle Counsel for the Applicant: Mr Sansom SC Solicitor for the Applicant: Gillard Family Lawyers Counsel for the Respondent: Mr Coleman SC Solicitor for the Respondent: Bainbridge Legal ORDERS
NCC 802 of 2013 BETWEEN: MR GARRETY
Applicant
AND: MS STEYN
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
4 MAY 2021
THE COURT ORDERS THAT:
1.The substantive proceedings between the parties for relief under Part VII of the Family Law Act, commenced by the Initiating Application filed by the father on 11 March 2021, are transferred to the Parramatta Registry of the Family Court of Australia.
2.Otherwise:
(a)The application for interim relief contained within the Initiating Application filed on 11 March 2021 is dismissed;
(b)The application for interim and procedural relief contained within the Response filed on 23 April 2021 is dismissed; and
(c)Any and all other outstanding applications for interim relief are dismissed.
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 Garrety & Steyn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
On 11 March 2021, the father commenced fresh proceedings against the mother in respect of their two children under Part VII of the Family Law Act 1975 (Cth) (“the Act”). It should not pass unremarked that this is the third round of litigation between them.
Final orders were first made in December 2014. Even though the mother had been the children’s primary carer until the parties’ separation in about March 2013, the December 2014 orders required the children to live with the father and to spend time with the mother. Over time, those orders failed and fresh proceedings ensued.
Final orders were made for a second time in March 2019 after a lengthy trial before Cleary J. The orders reversed the children’s residence, requiring them to live with the mother and to spend time with the father. Unfortunately, those orders were not seamlessly implemented either.
The application filed by the father now seeks to reverse the children’s residence again, which the mother resists.
Listed for hearing before me in a duty list were the parties’ respective applications for interim relief contained within the father’s Initiating Application filed on 11 March 2021 and the mother’s Response filed on 23 April 2021, though the terms of their applications were refined during oral argument.
Essentially, the issues to be determined were:
(a)the mother’s application to dismiss the father’s Initiating Application by application of the guideline principle enunciated in Rice & Asplund (1979) FLC 90-725; and
(b)if the mother’s primary application failed (thereby enabling the father to continue prosecuting his new parenting application), the mother’s alternate application to transfer the proceedings from the Newcastle registry to Parramatta registry of the Court.
The mother abandoned her application for ancillary procedural orders.
Evidence
The mother relied upon:
(a)her affidavit filed on 23 April 2021; and
(b)exhibits marked M1 to M5 inclusive.
The father relied upon:
(a)his affidavit filed on 9 March 2021;
(b)the affidavit of his partner, Ms F, filed on 26 April 2021; and
(c)exhibits marked F1 to F3 inclusive.
Rice & Asplund principle
I recite and apply the following principles as summarised in Walden & Cooper [2020] FamCA 104:
9.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 (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
10.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) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) 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]).
In this instance, the mother moved to dismiss the father’s application by way of preliminary hearing based on evidence which is, as yet, untested. In doing so, the mother accepted she must accept the father’s evidence of changed circumstances at its highest (SPS & PLS (2008) FLC 93-363 at [81]; Searson & Searson (2017) FLC 93-788 at [11]).
If the father’s evidence demonstrates a material change in circumstances, I must then consider whether the asserted need for variation of the existing orders outweighs the potential detriment to the children which the fresh litigation could cause (Marsden v Winch (2009) 42 Fam LR 1 at [50]).
When Cleary J determined the last phase of litigation in March 2019, her Honour was conscious that the mother, father, and Ms F had all played a role in the children’s emotional turmoil and the deterioration of the children’s relationships with the mother. Her Honour said:
127.The mother blamed the father for the breakdown of her relationship with the children. Although each of the parents have played a role I do not consider that it was exclusively one of the parents but rather a combination of fraught changeovers, resentment and bitterness between all three adults and children under pressure. It must be said that the father had legal authority and chose to exercise it the way he did.
Ultimately, her Honour decided the children’s best interests warranted them living with the mother, but expressly forecast that the transition would not be easy. Her Honour said:
247.The single expert concludes that in the event that the children live with their mother [the youngest child’s] level of attachment to her mother would improve “in the direction of greater security”. [The youngest child] is assessed by the single expert to have retained a surprisingly good level of attachment to her mother given external pressures and that “she retains within herself a significant capacity for a better relationship with her mother.” [The eldest child] is assessed to be a less resilient, confident and adaptive child than [The youngest child]. The single expert considers [The eldest child] too has a capacity for a better relationship with her mother but to a lesser degree than her younger sister. She may attain a lower level of security in that relationship.
…
249.A change of residence is likely to have a most significant impact on both children. They are likely to feel bewildered and possibly angry. The move will mean moving away from the school that they, and their older step-sister attend together. It will mean the loss of the regular day to day relationship between the two subject children with their older and younger siblings. [The eldest child] is especially close to [her older step-sister]. [The youngest child] takes a maternal interest and pleasure in [her half-sister].
250.The children are likely very much to miss the family atmosphere of their father’s home and the activities that are organised for them. They will miss their school friends.
251.There will likely be a positive effect from the change in circumstances being an opportunity to restore the relationship with their mother who was their primary carer when they were very young children, up until March 2013. That result will take time.
…
279.There is a risk that these orders will fail as the 2014 orders have failed. After two long gruelling and financially draining trials it is now up to the parents to comply with the orders or agree otherwise.
280.I have concluded that the children will feel deeply distressed and disrupted by the change of residence especially [the eldest child].
(References removed)
As foreshadowed, there were problems, but the children’s emotional insecurity has not subsided despite the passage of two years since those orders were made. Dramatic incidents have continued to occur on numerous occasions, including the mother’s contravention of orders, as the following facts reveal.
On or about 17 June 2019, the youngest child experienced breathing difficulties, chest pains, and was visibly distressed. She had difficulty inhaling and exhaling. The mother perceived the child was having an anxiety or panic attack and called the ambulance. The child was conveyed to hospital for examination.
On 23 March 2020, the youngest child experienced what the mother called “an emotional meltdown.” The incident was so serious that the police and ambulance were summoned, and this chaotic incident is the subject of findings earlier made by me in relation to a contravention application litigated between the parties (Garrety & Steyn [2021] FamCA 67 at [10]–[19]).
On 19 June 2020, the mother was found to have contravened the existing parenting orders without reasonable excuse. On that occasion, the parties did not require the publication of reasons for those findings and the sanctions then imposed upon the mother.
On 14 January 2021, the youngest child began to throw a tantrum in the mother’s presence, which incident escalated to the point of the child arming herself with a butter knife. Despite the mother being able to take the knife from the child, she continued to lash out and act uncontrollably. She locked herself in a room and ransacked the bedroom. After a number of minutes, the youngest child removed the flyscreen and exited the bedroom through the open window, then began to scream whilst outside the house. The incident was so confronting that the police were summoned, apparently by a neighbour. Upon arrival, the police confirmed the child was no longer armed with a knife.
On 13 February 2021, whilst in a car, the youngest child became agitated and told the mother:
I want to strangle and kill you.
The child also said:
I want to go home and kill myself with a knife.
The child covered the inside of the vehicle with the mother’s makeup and some toothpaste. Again, it was necessary for the police to intervene and they formed the view the child would benefit from a “mental health assessment”.
The police were so concerned that they contacted an ambulance and, upon its arrival on the scene, the child was conveyed to hospital. The police felt the need to escort the ambulance to the hospital “to ensure all persons were safe during the transportation”. At the hospital, the child’s admission as an involuntary patient was considered but not implemented. The police reported they held “serious concerns” for the youngest child’s safety. The child was held at the hospital for a number of hours and was not discharged until the early hours of the following morning. The tendered medical records indicate some concern the child may pose a risk of harm to herself and the mother. The mother reported to the hospital staff that the youngest child had asked about “cutting herself” in conversation between them a few days before. The mother also reported the youngest child told her that she might “like the pain of cutting”.
On 23 February 2021, the mother was again found to have contravened the existing parenting orders (Garrety & Steyn [2021] FamCA 67).
On 25 February 2021, the mother sent an email to the father informing him that the youngest child had suffered another “severe meltdown” and, furthermore, such meltdowns had been “particularly frequent over the last month”. The mother again summoned an ambulance on that occasion. Sometime afterwards on that day, the mother sent another email to the father informing him that ambulance officers had attended, checked on the youngest child, but did not take her to hospital. The mother deposed in her affidavit that, on that occasion, the youngest child had another “prolonged outburst” and was throwing objects out of her bedroom window.
All the while, either one or both children have been consulting medical specialists – including a psychologist, school counsellor, art therapist and child psychiatrist.
The mother perceives the children’s anxiety (which is perceptibly worse for the youngest child) is connected to their visits to the father during school holidays.
The police recorded this in relation to what they were told by the mother on 14 January 2021:
According to [the mother] the children’s father systematic abuse; using police, FACS, other services to make reports against [the mother] and causing the children to be interviewed and causing detrimental effects of physiological behaviour [sic].
In a report dated 30 March 2021, the youngest child’s psychiatrist reported the mother as saying:
Though [the youngest child] appeared gradually improving in her presentation, [the mother] has observed a definite decline in [the child’s] presentation post visits to her father’s place. [The mother] indicated that the current Court order is that [the child’s] father can have the children four times a year during school visits. [The mother] reported that [the youngest child] had regressed in behaviours during the summer holidays: enuresis, increased separation anxiety, suicidal ideation, multiple prolonged tantrums/meltdowns and [the youngest child] accusing [the mother] of the past alleged harmful events. [The mother] explained further that it was very distressing for her to observe [the youngest child] being confused during such meltdowns [sic].
Enuresis, separation anxiety, suicidal ideation, and multiple prolonged tantrums are serious problems for children of this age.
Whether or not the mother’s perception is correct, she obviously believes the children’s continued visits with the father in adherence to the existing orders is productive of their severe emotional distress. It must follow that she believes it is not in their best interests to continue spending time with the father, as has been occurring over the past two years.
The mother’s counsel submitted that the Rice & Asplund guideline applied in this situation because either:
(a)the evidence of the occurrences over the past two years is just “more of the same,” meaning what is now happening is just as was happening when Cleary J determined the proceedings in March 2019, so there are no changed circumstances; or
(b)the fresh occurrences were anticipated by Cleary J and there is, therefore, nothing new; or
(c)the fresh occurrences are consistent with Cleary J’s findings (the significance of which submission, I respectfully confess, I did not follow).
I reject the mother’s submissions. The clear implication arising from the reasons for judgment given by Cleary J is that the children’s residence with the mother would likely settle after a bumpy transition period.
The father did not submit that the mother’s lack of parenting capacity lies behind the children’s continuing outbursts. He simply asserted the children would be better off returning to live with him, but his assumption he could do better with them as the residential parent is not a fact I can find, even by inference. When the children lived with him there was just as much disharmony. For example:
(a)he was also twice found to have contravened orders in September 2015 and May 2017 (Cleary J’s reasons at [64]–[65], [102], [108] and [270]);
(b)the children’s relationships with the mother broke down under his stewardship, whereas the mother has managed to maintain the children’s relationships with him. The father argues their relationships are so good that the children could easily now live with him instead; and
(c)the youngest child was just as uncontained when living with the father. In October 2018 (while living with the father but spending time with the mother), the youngest child attacked the mother armed with a knife (Cleary J’s reasons at [141] and [246]).
While I make no finding on untested evidence, a plausible inference which is capable of being drawn from the evidence is that the children feel under immense pressure to owe their loyalty to one parent over the other, which pressure they find difficult to bear, occasionally resulting in violent outbursts of despair.
Further litigation risks embroiling the children in more conflict, but it might necessarily result in the elimination of one parent from their lives for the remainder of their minority, so as to give them some reprieve from the pressure of the parental conflict. In fact, the conflict might even be more accurately described as undisguised animosity.
Given the continuing procession of police, ambulance officers, emergency doctors and treating specialists involved in this family’s affairs, I am satisfied the father has demonstrated a material change of circumstances. Cleary J did not envisage this continuing level of rancour and despair some two years after final orders were made.
Furthermore, I am satisfied the prospective need for variation of the orders made in March 2019 outweighs the detriment the children may experience from being consulted again by a forensic social scientist and, perhaps, an Independent Children’s Lawyer.
The mother’s application to dismiss the father’s substantive parenting application in reliance upon the Rice & Asplund principle is dismissed. If it were to succeed, the parties and the children would be stuck in this unremitting cycle of emotional chaos, which is damaging for the children.
Transfer
Cleary J heard the first two trials finalised by the orders made in December 2014 and March 2019.
I have heard two contravention applications brought by the father against the mother, which were both sustained and sanctioned by orders made in June 2020 and February 2021.
The parties apparently accept as valid propositions that the father would successfully apply to disqualify Cleary J from hearing the current proceedings and the mother would successfully apply to disqualify me. There are no other judges of this Court attached to the Newcastle registry.
In those circumstances, the mother applied to transfer the proceedings from Newcastle to Parramatta. The father initially indicated a preference for the transfer of the proceedings to Sydney but, during oral argument, seemed to accept that Parramatta was a more suitable alternative.
That being so, the father withdrew his contingent application to expedite the trial in the Newcastle registry.
For those reasons I make the following orders.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 4 May 2021
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