Gillan and Kruse
[2019] FCCA 313
•19 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILLAN & KRUSE | [2019] FCCA 313 |
| Catchwords: FAMILY LAW – Parenting – Where orders were made in father’s absence in 2016 for time between himself and his daughters to be as agreed in writing between the parties – where the mother will only agree to the children spending time with the father at a play venue for two hours twice per month with the mother in the vicinity and will not agree to any orders confirming this arrangement – where the mother has only agreed to regular telephone calls since proceedings began and will not agree to any orders about that either – where the father disputes the necessity for such limited time and communication and for supervision of his time and has filed an application seeking orders for defined time – where the mother wishes the existing orders to continue and seeks to have the father’s application dismissed pursuant to the Rule in Rice & Asplund – where the existing orders are causing stress for the mother and the father and indirectly for the children – where the children enjoy spending time with the father – where there may be risk of harm issues which mean that the time the mother is presently agreeing to is the only time which is appropriate but where the children would benefit from there being a full inquiry into the matter before that determination is made – mother’s application for preliminary dismissal of the father’s application dismissed. |
| Legislation: Family Law Act 1975, s.60CC |
| Cases cited: Garey & Garey [2015] FamCA 1192 |
| Applicant: | MR GILLAN |
| Respondent: | MS KRUSE |
| File Number: | BRC 1401 of 2018 |
| Judgment of: | Judge Terry |
| Hearing date: | 7 February 2019 |
| Date of Last Submission: | 7 February 2019 |
| Delivered at: | Newcastle |
| Delivered on: | 19 February 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mrs Kearney |
| Solicitors for the Respondent: | Merridy Elphick Lawyers |
ORDERS
The mother’s application for preliminary dismissal of the father’s amended initiating application filed on 30 August 2018 is dismissed.
Pursuant to s.62G(2) of The Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular NOTING THAT the issue in dispute is whether the existing parenting orders concerning the children should remain in force or whether orders should be made for the children to spend defined time with the father noting that the father is currently seeking time on alternate weekends, during school holidays and on special days.
The Court requests the said report be released by 22 July 2019.
Pursuant to Regulation 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirements of Division 15A.01 of the said Rules and the Family Consultant is granted leave to inspect all documents produced in response to subpoena, including material which is unreleased due to the issuing party not filing a Notice of Request to Inspect promptly after the date of production.
If the Family Consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.
The parties are required to promptly issue all subpoenas which they consider necessary to ensure a proper resolution of the matter including subpoenas to NSW Police, the Department of Family & Community Services, and the father’s treating medical practitioners in New South Wales and Queensland during the last five years and any other subpoenas the parties consider necessary.
For the purposes of Order (6) each party has liberty to issue more than five (5) subpoenas.
Within fourteen (14) days of today’s date the father shall do all acts necessary to submit to hair testing to be conducted by an authorised service and for that purpose, the father must attend upon his general practitioner to take a sample of his hair and authorise him or her to forward the sample in accordance with the protocols of the Testing Laboratory.
The father must authorise the Testing Laboratory to carry out hair testing in respect of all drugs covered by the analysis and provide to the other party a copy of the test result.
The father must provide hair samples and do all acts necessary to cause the hair tests to be performed forthwith.
Until such time as a hair sample is provided in accordance with these orders the father shall be prevented by injunction from cutting, altering, dyeing or otherwise treating his hair.
The father shall pay the costs of the hair testing.
The matter is adjourned to 9.30am on 29 March 2019 to review the issue of subpoenas and the hair test result and consider whether the parties should be required to issue further subpoenas and whether further testing should be ordered.
The matter is also adjourned to 9.30am on 29 July 2019 for further consideration following the release of the family report.
IT IS NOTED that publication of this judgment under the pseudonym Gillan & Kruse is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
BRC 1401 of 2018
| MR GILLAN |
Applicant
And
| MS KRUSE |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns [X], 9 and [Y] 8, and the specific issue I must determine at present is whether pursuant to the Rule in Rice & Asplund the father’s application for parenting orders should be dismissed at a preliminary stage.
The parties commenced a relationship in … 2002 and separated in July 2014 according to the mother and September 2014 according to the father.
In or about October 2014 the father became aware that the mother formed a new relationship and he subsequently engaged in behaviour which was both self-destructive (using ice, continuing to use cannabis, ceasing to take his anti-depressant medication and attempting suicide) and violent (sending the mother threatening text messages, driving through the front gate of her home and entering the home and fighting with her partner Mr A). Apprehended domestic violence orders were made for the mother’s protection and the father was charged with breaching the ADVO’s and in April 2015 was sentenced to three months in jail.
In April 2015 the mother filed an application for parenting orders in the Family Court at Newcastle. Among other things she sought to be able to relocate from Town B to Town C with the children. She sought orders that the children live with her, that she have sole parental responsibility for them and that they spend supervised time with the father at a contact centre.
On 4 August 2015 a family consultant in Town C conducted a Children and Parents Issues Assessment and produced a written report.
The family consultant set out in the report in considerable detail the incidents which had occurred since separation together with the mother’s allegations that the father had a history of drug use and mental health issues which predated separation.
The father admitted that he had struggled since his father died in 2013 and made some admissions about a more extensive history of drug use and mental health issues but blamed most of his behaviour on extreme distress at the marriage ending, the mother re-partnering straight away on his account and the mother severely limiting his time with the children on his account.
What stands out at the report is the family consultant’s description of the children’s reaction to seeing their father. The family consultant said as follows:
Both children excitedly reported that they wanted to see their father when asked. During observations the children were clearly delighted to see their father (after an absence of over seven months). They remained excited and affectionate throughout the forty minutes of observation. They spoke freely and openly and displayed no sign of anxiety. On occasion the children mentioned something about Mr A or the current Court appointments and the father did an excellent job of gently redirecting the children to neutral topics. The children competed for their father’s attention and he managed this very well. When the Family Consultant advised that it was time for the father to leave, the father enlisted the children to assist him to pack up the toys and after loving hugs and kisses goodbye, left without issue.
Following the observation the children were spoken with together. They had both enjoyed seeing their father who reported looked a little different because of his glasses. They were both keen to see their father soon and were reassured when advised that their parents were trying to work out when that could happen and that the Court was assisting the parents to work that out. The children reported no concerns and displayed no anxiety.[1]
[1] Paragraphs 42 and 43 of the Children and Parents Issues Assessment dated 4 August 2015.
The family consultant recommended that the father spend supervised time with the children at a contact centre pending further investigation of the risk of harm issues.
Shortly afterwards a Registrar made orders for the children to spend time with the father at the Town D Children’s Contact Centre and the parties underwent the necessary intake procedures and supervised time commenced.
On 15 December 2015 Justice Cleary conducted an interim hearing. The mother pressed to be able to relocate to Town C but Justice Cleary did not permit that on an interim basis. She made orders for a continuation of the supervised time and orders about drug testing and adjourned the matter to 8 March 2016 for further consideration.[2]
[2] Garey & Garey [2015] FamCA 1192
In January 2016 the father ceased attending at the Contact Centre and on 8 March 2016 he did not attend court. As a result the matter was listed for an undefended hearing on 22 March 2016 and on that day orders were made as proposed by the mother and the Independent Children’s Lawyer. I will include all the orders in these reasons but for ease of reference will highlight the orders relating to the father’s time and communication with the children:
1.That all prior parenting orders relating to the children [X] born … 2009 and [Y] born … 2011 (“the children”) are discharged.
2.That the children live with the mother.
3.That the mother have sole parental responsibility for the children.
4.That the parties keep each other advised of current contact details, including telephone number and email address.
5.That the mother shall as soon as reasonably practicable, advise the father in the event that either child is hospitalised, with the outcome or diagnosis provided to the father, via email.
6.That the mother shall authorise the school which the children attend to provide to the father (at his cost if any) copies of all school documents relating to the progress and welfare of the children at school, including but not limited to, school reports, newsletters, and applications for school photographs.
7. That the children shall spend time with the father as agreed in writing between the parties.
8.That the mother shall permit and assist the children to have telephone communication with the father at any time that the children, or either of them, wish to speak to the father and at any other time, including on special days such as Christmas Day, Easter Sunday, Father’s Day and the children’s birthdays, at the discretion of the mother.
9.That the father shall be at liberty to forward cards, presents or gifts to the children on their birthdays and at Christmas, addressed to the mother’s parents, Mr & Mrs Kruse.
10.That neither the father not the mother will denigrate the other or members of their family and friends in the presence or hearing of the children, nor permit any other person to do or on any forum of social media, including Facebook.
11.That the parties and each of them shall not discuss these proceedings in the presence or hearing or electronic sight of the children and not permit any other person to do so.
12.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
13.Any and all outstanding applications are dismissed.
The father had ceased attending the contact centre in January 2016 and did not attend court in March 2016 but he did not remain out of the picture for long. In June and July 2016 he sent the mother emails about having telephone communication with the children.
The mother would not agree to anything regular. She relied on the wording of order 8 and said that the children were not asking to speak to him. Subsequently a Skype account was set up and there was some occasional communication but the mother continued to maintain that the children were generally not interested in speaking to the father.
The father also asked to be able to see the children and on seven occasions between 20 November 2016 and 26 December 2017 she allowed him to spend time with the children for two hours at a McDonalds supervised by herself and her partner Mr A.
The father wished to see and speak to the children more often. He attempted to initiate mediation but nothing came of this. I cannot be sure why mediation did not occur; the provider may have formed the view that the matter was unsuitable for mediation, but in any event this avenue was tried and did not provide assistance and on 9 February 2018 the father filed an application seeking orders for defined time and communication with the children.
The father had moved to Queensland in October 2017 and he filed this application in the Federal Circuit Court in Brisbane. The parties had previously lived in Queensland and there was nothing peculiar about the father moving to Queensland, which I mention only because the issue was raised in passing in submissions by the mother’s counsel.
The mother had moved to Town C after the orders were made. It took a little while for the father to locate and serve her but she was eventually served and on 20 June 2018 she filed a response in which sought an order that the father’s application be dismissed.
On 27 June 2018 at the mother’s request the matter was transferred to the Federal Circuit Court at Newcastle.
In July 2018 the father relocated to Town C and obtained a job and he has remained in Town C ever since.
After negotiations at court on 6 August 2018 the mother began permitting the father to have telephone communication with the children each Wednesday at a fixed time and to spend time with them for two hours twice a month at a venue of her choosing such as Play Centre. She would not however agree to any orders being made about these matters.
From the information provided by the mother the father has never missed a call or a visit. The mother remains in the vicinity while the father is spending time with the children. She said that the children enjoyed the telephone communication and she made no adverse comment about the time they spent with the father.
The mother complained bitterly in her affidavits about the father emailing and texting her. She complained about the extent to which he contacted her and about the content of some of his messages. The father said that he had sent the mother in excess of 150 emails asking for time with the children.
The mother’s case
The mother’s case was that the existing orders were perfectly satisfactory. They allowed the children to spend time with and communicate with the father if she agreed to it but also allowed her to be in control and this was necessary to ensure that the children were protected from harm.
The mother said that the father was being far from candid about his drug use history and his history of mental health issues. He told the court on 6 August 2018 that he was no longer using cannabis but a hair test he did 9 August 2018 was positive for cannabis.
The mother’s counsel asked me to read the Children and Parents Issues Assessment carefully and consider whether it was ever likely that the children would safely be able to spend unsupervised time with the children. The gravamen of her submission that nothing would be gained by allowing the court proceedings to continue because the father was unlikely to obtain better orders than the 2016 orders or alternatively better time and communication than he presently had with the mother’s agreement.
It was submitted that the current amount of time permitted by the mother allowed the children to have a meaningful relationship with their father while keeping them safe from harm.
The mother said that it would be unfair to the children to require them to attend further interviews and become embroiled in contested litigation. She also submitted that the court should have regard to her legal costs. She maintained that she had incurred costs of $50,000.00 or so in court proceedings to date. She was earning $65,000.00 per annum and her partner about $85,000.00 and they could not afford ongoing legal costs.
The father on the other hand had the advantage of being self-represented and was not incurring legal costs. He was also assessed to pay only a modest amount of child support and he was in arrears with that.
The father’s case
The father said that the orders were totally unsatisfactory because he was not being allowed to spend any unsupervised time with the children and the mother was requiring him to spend time with them at an expensive indoor play venue. She was also controlling the frequency of telephone communication. She had only agreed to regular telephone communication and face to face time twice a month since he commenced court proceedings and would not agree to orders being made about this and could change her mind at any moment.
The father submitted that his life had changed since 2015. He said that he had reacted very badly to the separation which involved the mother re-partnering with an old flame. He said that after he withdrew from the proceedings in 2016 he left the Region E area and after working in Region E NSW for over a year ultimately settled in Queensland and in October 2017 obtained steady employment. He moved to Town C in July 2018 so that he could be close to his children and be in a position to spend regular time with them. He had been employed without incident in a business, first in QLD and then in NSW, since October 2017.
The father denied that he was currently using illicit drugs. He acknowledged that tested positive for cannabis in a hair test in 2018 but said that the result could be a mistake.
The father said that the children enjoyed spending time with him and that it was wrong that the mother was able to control all aspects of his time and communication with them.
The father said that he had entered into a payment plan to deal with his child support arrears and disputed that the problem was as serious as the mother maintained.
The applicable law
There is nothing in the Family Law Act 1975 which prevents proceedings being filed a second time about the same children and there is good reason for this. Children are not objects or sums of money. Parenting proceedings are not the same as proceedings for debt, where a court determines once and for whether a debt is owed or proceedings about property where the court determines once and for all the parties’ interests in property.
Children change and their circumstances and those of their parents change, sometimes by choice and sometimes by ill chance. Children grow older and their views change. A parent may become ill or make an unfortunate choice of a new partner or may lack the capacity to parent an oppositional adolescent child and it may become necessary to consider a change of residence for a child.
A parent may overcome a drug habit or successfully engaged in a perpetrators course and it may become necessary and desirable to look again at whether their children should be given the opportunity to form a relationship with them.
There are myriad reasons why it may be necessary, in the best interests of a child, to revisit parenting arrangements, and it is essential that parents are not prevented from re-litigating about parenting arrangements if circumstances change because not all matters can be resolved outside the court system.
The situation is fraught with difficulty however because some parents take advantage of the fact that the res judicata does not apply in parenting proceedings and bring proceedings which are unjustified, do not benefit their children and cause considerable stress and unnecessary cost for the other parent. They may be unjustified because the changes sought are minor[3] or because they are the actions of a litigant who is just not going to give up and who if he doesn’t get his way the first time just keeps filing hoping that a different place or a different judge might result in a different outcome.
[3] King & Finneran (2001) FLC 93-079
In a worst case scenario they are the actions of a litigant who deliberately uses litigation to harass the other party.
Litigation is also expensive for the parties and for the community and in SPS & PLS Warnick J expressed the view that there was also a public policy aspect to the matter. He said as follows:
I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.[4]
[4] SPS & PLS (2008) FLC 93-363
The Family Court recognised soon after the Family Law Act commenced in 1975 that some guidelines needed to be put into place to protect children from being the subject of endless litigation if there was no justification for a fresh application. In the 1979 case of Rice & Asplund Justice Evatt said as follows:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as counsel for the appellant submitted, change is an ever present factor in human affairs.
Therefore, the court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step. Some new factor arising, or at any rate some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require a court to consider afresh how the welfare of the children should best be served. These principles apply whether the original order was 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.[5]
[5] Rice & Asplund (1979) FLC 90-725
This pronouncement became known as the Rule in Rice & Asplund and countless later decisions have reinforced that a court can in the exercise of its discretion dismiss proceedings at a preliminary stage if it considers that there has not been a sufficient change of circumstances.
In Miller & Harrington the Full Court said as follows:
105.Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?[6]
[6] Miller & Harrington (2008) FLC 93-383
However in Marsden & Winch the Full Court said as follows:
58.That question might be better formulated in another way in the following proposition, 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.[7]
[7] Marsden & Winch [2009] FamCAFC 152
It is not the case however that the only options open to the court when a fresh application is filed are to dismiss it at a preliminary stage after hearing submissions based on the material filed by the parties or to allow it to continue unchecked through the court system. There may be occasions where it is preferable to obtain some further information before finally determining whether to dismiss the application pursuant to the Rule in Rice & Asplund.[8] That further information may be in the form of subpoenas, an 11F child inclusive child dispute conference or a family report.
[8] Gotch & Gotch [2009] FamCAFC 3
Finally it is always necessary to bear in mind as Warnick J stressed in SPS & PLS that when applying the Rule in Rice and Asplund the touchstone always is the best interests of the children.
Discussion
Against that background I have to decide what to do in this case and as I pointed out to the mother’s counsel in submissions the mother’s affidavits alone make out a strong case for the existing orders to be reconsidered.
The orders were made in the father’s absence. It does not follow that he should automatically be allowed to re-litigate the matter but the father’s circumstances have changed. He is no longer in the chaotic dishevelled state he was in from late 2014 to early 2016. He has been employed for nearly 18 months and there is no evidence of him getting into any trouble with the law since 2015. The mother has consented to him spending time with and communicating with the children since the 2016 orders were made and they are enjoying this.
The March 2016 orders were the only orders which could have been made at the time but now that the father is back on the scene the fact that the mother controls whether time occurs and when and where it occurs is causing considerable strain for the mother. She complained in her affidavit about the father sending her numerous emails/messages and about the content of some of the communication. It is also causing considerable stress for the father and it must be causing stress for the children.
The mother is adamant that the father has a long history of drug use and mental health issues and that the time she has agreed to is the only time which is in the children’s best interests but I cannot be sure of that. It certainly seems that the father may still be using cannabis but there was no evidence that he had been in any trouble with the law since April 2015. I cannot place weight on the information the mother alleges that an anonymous person has given her indeed it would be dangerous for me to do so. The father’s behaviour around the time of separation was extreme, frightening and threatening but the mother did not allege that the marriage was plagued by family violence save for suggesting to the family consultant in 2015 that there had been emotional abuse.
I cannot assume as the mother wants me to assume that the time and communication the father is currently having is the best he will ever get or that it is in the children’s best interests that there be no defined orders and the mother keep the whip hand.
The mother is concerned about the children being reinterviewed but they have only ever been interviewed once before, at a CAPIA in August 2015. They were extremely pleased to see their father and they are currently pleased to spend time with him and talk to him on the phone. It would be in the children’s best interests to have a proper inquiry into this matter and determine whether supervised time is all that can ever safely happen or whether alternative orders can be made.
The mother is concerned about the cost of the proceedings.
The Full Court have recently expressed the view that when an application is made for an extension of time in which to file property proceedings the court must take into account the cost which will be involved in litigating the matter so that the costs do not outweigh any potential gain.
However these are children’s proceedings and I cannot justify refusing to allow the father to continue with proceedings which in my view are in the children’s best interests because there will be a cost to the mother in taking part in them. Without wanting to be too critical of the mother I would suggest that she consider how to best use her legal representation. I do not accept that it is necessary in a matter of this kind for the mother to be represented by both counsel and an instructing solicitor at every mention of the matter.
It is also open to the mother to bring a costs application although I cannot promise that it will be successful.
I do not intend to dismiss the father’s application for parenting orders at a preliminary stage because a prima facie case of changed circumstances has been established and I am strongly of the view that it would be in the children’s best interests for there to be a thorough investigation into whether it is safe and appropriate for them to spend time with their father different to that which the mother has determined is appropriate.
Future Directions
I have reflected on whether I should order a child inclusive conference which would be a quick way of obtaining some information about the children’s views but given the allegations about the risk the preferable course is to order the preparation of a family report so that there can be an in depth look at the situation.
For a family report to be of value subpoenas need to be issued promptly so that they are available for inspection by the family report writer. It would also be desirable for the father to do another hair test.
I have considered whether I should adjourn the matter for mention and require the parties between now and the next adjourned date to issue subpoenas and then on the next adjourned date consider making an order for the preparation of a family report.
However these proceedings were commenced in February 2018. That was followed by a delay because the father could not promptly serve the mother and then a delay last year because the mother’s counsel at first suggested that she intended to apply for summary dismissal of the father’s application (which would have been quite futile) and then plumped for a Rice & Asplund application. The court was not immediately able to find time to hear that application and I was not able to hear it until two weeks ago.
The proceedings are now over twelve months old and the situation is causing stress for the parties and cost for the mother. I therefore intend to order the family report today but I am going to make an order requiring the parties to issue subpoenas and I will list the matter for mention in about 6 weeks’ time to review the situation and if necessary make orders requiring the parties to issue further subpoenas.
I also intend to order the father to do another hair test.
I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 19 February 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Costs
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Procedural Fairness
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Remedies
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Jurisdiction
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