Gingham and Gingham

[2012] FamCA 933

FAMILY COURT OF AUSTRALIA

GINGHAM & GINGHAM [2012] FamCA 933

FAMILY LAW – parenting – where final parenting orders previously made – where the mother sought leave to file a further application – where the final orders included provisions enabling the seeking of leave to file further applications – where leave granted – where the mother alleges there have been significant changes in circumstances since the final orders were made – where the matter is presently the subject of an appeal – where the mother’s application adjourned to a date following the Full Court handing down its decision in the appeal.

Family Law Act 1975 (Cth)

APPLICANT: Ms Gingham

RESPONDENT: Mr Gingham

INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

FILE NUMBER: BRC 2720 of 2010

DATE DELIVERED: 8 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 8 November 2012

REPRESENTATION

THE APPLICANT: Ms Gingham in person

THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Crowley Greenhalgh Solicitors

INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland of Sarah Cleeland Family Lawyers

Orders

IT IS ORDERED THAT

1. The Independent Children’s Lawyer be discharged on a date 21 days from the date of these Orders, subject to the Independent Children’s Lawyer serving a copy of these Orders on the Respondent Father and there being no application contrary to this order filed by the Respondent Father in that time.

IT IS FURTHER ORDERED THAT

1. The Applicant Mother be granted leave to pursue the Application in a Case filed on 27 September 2012.

2. The hearing of that Application in a Case be adjourned to the first available date subsequent to the Full Court of this Court delivering its Orders and publishing its Reasons in appeal NA 46/2011.

3. Paragraph 4 of the Application in a Case filed on 27 September 2012 be dismissed.

4. A transcript of today’s proceedings be provided, free of charge, to each of the Applicant and Respondent.

5. A copy of the settled ex tempore Reasons delivered today be provided, via email, to each of the Applicant and the Respondent and, as a matter of courtesy, to the Independent Children’s Lawyer formerly discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gingham & Gingham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2720 of 2010

Ms Gingham

Applicant

And

Ms Gingham

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 13 May 2011, I made orders after a long and difficult trial.  That trial proceeded over some eight days, which, through the necessity to hear other cases, was unfortunately spread over a period of some months.  There were also other difficulties that required the case to be heard in that way. 

2. The reasons accompanying those orders comprise some 67 pages. There has been an appeal instituted by the mother against the orders made that day.  That appeal, I am informed, was heard by the Full Court in September of this year. Ms Gingham, who appears for herself, advises from the bar table today that the Full Court indicated that they were hopeful of delivering orders and reasons within four months of the hearing.

3. Subsequent to the hearing of that appeal, Ms Gingham filed an application in a case on 27 September 2012.  That application seeks some 14 orders, the last of which is that leave be granted for her to file that application. 

4. The order sought in that paragraph is required by reference to paragraph 24 of the orders made by me on 13 May 2011.  That order provides as follows:

   24.Neither the mother nor father shall file any application in respect of the child or these Orders without first obtaining the leave of the court and, in that event:

   (i)An affidavit shall accompany such application setting out the reasons why leave should be granted, with such affidavit referring to these Orders and the Reasons for Judgment delivered herewith;

   (ii)The application shall be served on the other party and the Independent Children’s Lawyer;

   (iii)The other party and the Independent Children’s Lawyer shall be at liberty, should either or both so choose, to:

   (a)     Not file a Response; and/or

   (b)     Not file an affidavit in response; and/or

   (c)     Not appear at the hearing of such application.

5. The application in a case and the affidavit accompanying it, deposed to by Ms Gingham and filed the same day, was served on the father and the Independent Children’s Lawyer. 

6. The latter appeared today as a courtesy to the Court and advised the Court that no further Legal Aid funding had been provided to her. She suggests that it is unlikely that further funding will be provided in the future.  Ms Cleeland was discharged, subject to the father being heard on that issue.  That order was made in those terms because by an affidavit filed on 25 October 2012, the father deposes to a number of matters, to which I will shortly refer but relevantly deposes:

   15.It is my intention to take advantage of the option available to me in order 24(iii)(a) and (c) of the orders of this honourable Court, made 13 May 2011 and seek to rely on this affidavit at the hearing on 8 November 2012 but not to file a response and not to appear in person.

7. As that paragraph of that affidavit foreshadows, the father does not appear before me today. 

8. The application in a case filed by the mother has its catalyst, the mother concedes, in recent issues relating to X, who was born in November 1997 and is shortly to turn 15.  He has been involved in many incidents at his current school, where he is boarding. They are deposed to, by the father. 

9. In particular, the father deposes to conversations with the head of the junior boarding school on 14 and 17 September 2012 that:

   [The child’s] position at [the school] was becoming untenable and subsequently, that there was no longer a place for your son, [the child], at the school, effective immediately.

10. In that respect, the father deposes that that person and the principal of the school informed him that the child had:

    … breached school rules by hacking into its computer system, destroying another student’s laptop and bullying the same student over Facebook.

    The deposition goes on:

    Although [the child] had rectified some of the behaviour and apologised to the student involved, his behaviour was such that it justified the immediate request that he leave the school.

11. The father also deposes to events resulting in the child subsequently not being accepted at another private school and thereafter, to him being enrolled at a state high school in the western suburbs of Brisbane. 

12. The events just described can, I think (as, it seems, the mother effectively concedes) be seen as the catalyst for the current application, although the mother is at pains to point to a number of other matters which she alleges that are of concern to her and are directly related to the child’s best interests. 

13. Despite the mother’s claims in that respect, it needs to be pointed out that a comparison of the orders sought by her in the application in a case on 27 September 2012, with orders sought by way of an amended application in a case filed 10 September 2010 prior to the trial to which I have earlier referred, has each seeking orders in very similar terms, and certainly with very similar themes, to those which were addressed before me at the trial.

14. On both occasions, the mother seeks an order that:

    (a)[the child] attend [a named private school] or similar private school;

    (b)the father pay for [the child] to attend specified extra curricular activities and private tuition;

    (c)as an alternative to the mother having sole parental responsibility, that the parties have equal shared parental responsibility;

    (d)[the child’s] medication [in respect of what might broadly be described an attention deficit disorder of some type] be provided by the [boarding school in the orders sought at trial] and [by the father in the orders sought in her current application] in accordance with [Dr L’s] recommendations;

    (e)the father comply with all of the recommendations of [Dr L];

    (f)the father pay $6000 into a trust account held by the mother for [the child] for all of the father’s “contraventions” of the orders of the Court.

15. It will be appreciated, then, that there is in fact significant similarity in, at the very least, the underlying issues relating to the child’s best interests that were canvassed at a very lengthy trial. 

16. An order sought by the mother in the current application is that there be a stay of the substantive parenting orders made by me on 13 May 2011.  The application for this order must be dismissed.  There is now a very significant period of time that has elapsed, during which the orders made by me have been in force and effect.  No earlier application for stay has been made. In particular no application for stay was made prior to the commencement of the appeal lodged by the mother and the hearing of it.

17. In addition to that order, the mother seeks orders in her current application for phone contact to occur as and when she chooses, as distinct from the current order (paragraph 13), in which the child determines the occurrence of phone contact. Secondly, she seeks an order that the parties take the requisite steps necessary to have the child attend upon a psychiatrist once a week with the mother.  Paragraph 10 of the existing orders provides for the parties to take steps to have the child attend upon a psychiatrist as agreed between them (see paragraph 8 of the orders) or failing agreement, as recommended by Dr V (see paragraph 9 of the orders) “with a view to the child discussing all such issues as he might choose and with a view to considering, with the assistance of that psychiatrist, the re-establishment of face to face time with his mother”. The orders provide for the child’s attendance upon the psychiatrist to commence from 1 December 2012. 

18. I might interpose here that the orders pertaining to that psychiatric intervention were determined to commence some significant time subsequent to the orders being made with a view to there being an opportunity for the child to, as it were, have “time out” from the conflict which had attended his recent years, consequent upon the proceedings between his parents and all of the events surrounding that conflict, to which very significant regard was had in the trial reasons I provided. 

19. The mother seeks before me today to tender a significant amount of documents produced pursuant to subpoena and says that all of those documents pertain to matters arising since the trial. In summary, the mother agreed that those documents pertained to the issues to which reference has just been made, namely the difficulties experienced by the child at school, issues relating to his medication, its dosage and recommendations in relation to it and finally, psychiatric or psychological assistance. 

20. I did not permit the mother to tender that evidence in light of the fact that, by reference to paragraph 24 of the earlier orders, the father does not appear before me today and does not have the opportunity to see that evidence or be heard in respect of it.

21. In any event, the matters referred to within those documents, as broadly described, are matters otherwise addressed in other evidence and about which the mother makes comprehensive submissions. 

22. As part of that evidence, the mother indicates that, at least as she asserts it, the child is, through the agency of the school principal, now seeing, or will shortly see, Dr F who is a psychologist. 

23. The mother indicates that the father objects to her receiving any information from Dr F (about what he might consider appropriate to provide) in respect of the consultations with the child and, further, suggests that the father objects to the mother having any involvement in any process engaged in by Dr F – even as Dr F might recommend. 

24. Again, that allegation (untested as it is by reference to the father at the moment) has echoes in allegations and counter-allegations made in the trial before me. 

25. The difficulty confronted by the mother is, as it seems to me, that there is currently outstanding a judgment from the Full Court.  Without in any way suggesting that I would presume to “second guess” the Full Court, success by the mother in that appeal must, as it seems to me, almost inevitably involve there being a new trial. 

26. I make that comment, with great respect to the Full Court, but knowing that there is evident in the material before me, a plethora of assertions which, I cannot imagine will not be met by counter-assertions or denials by the father.  That being the case, I cannot see how it would be possible (again, without presuming to speak for the Full Court) to see how the Full Court could re-exercise for itself the discretion.

27. The inevitable consequence of a successful appeal and a new trial is the discharge of the orders made by me and for all issues directly relevant to the child’s best interests to be heard and determined at a new trial based upon the evidence as it exists as at the date of that new trial. 

28. Accordingly, there is at the least, the real possibility that a successful appeal will allow the ventilation of all of the issues to which the mother refers at a trial which is the appropriate place for it. 

29. In the event that the appeal is unsuccessful, it is for the mother to establish that there are changed circumstances that would justify variations to the orders made by way of final order after a lengthy trial involving extensive evidence including extensive expert evidence and lengthy reasons for judgment referring to that evidence. 

30. In those circumstances, the issues therefore before me are these:  is it appropriate to refuse leave to the mother to pursue any such application?  Secondly, if the answer to that question is yes, when ought that occur? 

31. The mother effectively argues those issues in reverse order and says that there are urgent circumstances revealed by the difficulties confronted by the child at school that require determination by me today. 

32. I cannot see that I can do so given the outstanding judgment of the Full Court. Their orders might be that my previous orders be completely discharged thereby requiring the necessity for there to be new orders either by agreement or by way of the new trial to which I have earlier referred.  Of course, it is possible that the appeal might be dismissed.  In that event, my orders would pertain and the mother would need to establish that there has been a change of circumstances. 

33. I have earlier set out the matters referred to in the current application which can be seen to be, effectively, a mirror of earlier orders sought by the mother.  Although the father does not participate in these proceedings actively, he opposes them in his affidavit.  Clearly by implication, he suggests that leave ought not be granted to the mother to pursue the application and it is plainly implicit from his affidavit, as it seems to me, that he asserts that the mother merely seeks to re-agitate issues that were live before the court and dealt with at the earlier trial.

34. In circumstances where there can be seen to be significant similarity between the orders sought in the earlier application by the mother and the application made by her today, the father’s position has some substance. 

35. Ultimately, it might be established that that position does in fact have substance.  The issue, though, on the application for leave – using the criteria of the interests of justice and the best interests of the child – seem to me to point to the mother being given the opportunity to at least agitate her application. 

36. In that respect, the ultimate determinant is, of course, the best interests of the child and I am acutely aware that a further application that has him at its centre might have at the very least a significant indirect adverse impact upon him.

37. But, the mother has no face to face time with him pursuant to the current orders and seeks to agitate a case that a nearly 15 year old boy is seeking to do that which Dr V indicated was a real possibility in the trial before me.  At [174] of the trial reasons, I refer to that very issue.  I said:

    JUDGE:I just want to go back to something...raised [a] little earlier...you commenced...saying, “Look, there is the prospect that” – to use my words, not yours – “that [the child] will find his way back to his mother in the future”.  Essentially, I took you to say – I might have this wrong – at a time of his choosing...do I have that right? 

    [DR V]: Yes...

38. I also pointed out at [175] of the reasons that “this opinion is also reflected in the father’s evidence” and referred in turn to a passage of his evidence.  The mother says that, in effect, this is precisely the process which has commenced.  I do not know whether the father would accept that to be the case or deny it, but, given the child’s age, it seems to me just that the opportunity be present to agitate it.

39. Included in this assessment are the issues in and about the problems that the child has experienced at his school. That is particularly so given that I made a finding after a discussion at [124] and following of my reasons that:

    I am not persuaded that [the child’s] academic performance has deteriorated as [the mother alleges] or at all.  Whether I was right in reaching that conclusion then, there seems to me at least some prima facie evidence to suggest that whether or not his academic performance has deteriorated as the mother then alleged, certainly his performance more generally described in and about his schooling has significantly deteriorated.  Indeed, so much seems clear on the father’s material. 

40. Thirdly, I expressed concern at [30] of my trial reasons about the “tone and content” of many of the statements made by a then 13 year old boy about his mother. I pointed out that the evidence reveals that:

    ...almost every statement by [the child] since coming into his father’s care is wholly negative of the mother and wholly positive of the father and his time with the father.

41. In effect, the mother seeks to re-ventilate that issue (although she does not express it in those specific terms) by reference to her assertion that the child is expressing views that might be seen to be different to that.  If she is right – and I emphasise the word “if” – then, given his now age, that is a matter that, too, might substantiate a case by her that there has been a material change in the sense in which the authorities refer to it.

42. In all of those circumstances and balancing the various considerations together, including the very important consideration of the impact upon the child and the potential cost and inconvenience of further proceedings, it seems to me that the interests of justice and the best interests of the child permit of the mother being granted leave to pursue her application in a case filed 27 September 2012. 

43. However, by reference to the second issue raised earlier by me, I do not consider it appropriate for that issue to be ventilated until such time as the Full Court delivers its orders and reasons. Accordingly, I propose to adjourn the mother’s application in a case to the first available date after the delivery of the Full Court’s orders and reasons for judgment.

44. The mother seeks to press before me what she describes as the urgency of the child’s position.  I expressed in my earlier reasons “consternation at this matter’s procedural history on numerous occasions” in the past.  I think that it is fair to say that the mother – indeed the parties – have not been well served by the system in this particular case. 

45. Accordingly, I have made it plain to the mother that the attempt to list this matter at the earliest possible date consequent upon the delivery of the reasons of the Full Court (not necessarily before me) should be seen as a statement of genuine intention rather than some hollow reflection of an ideal. 

1. I order accordingly.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 8 November 2012.

Associate:

Date:  12 November 2012