Gladwell & Gladwell
[2022] FedCFamC1F 543
•29 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Gladwell & Gladwell [2022] FedCFamC1F 543
File number(s): SYC 2527 of 2015 Judgment of: MCCLELLAND DCJ Date of judgment: 29 July 2022 Catchwords: FAMILY LAW – PARENTING – Where final orders were made in 2019 for the father to have sole parental responsibility and for the child to live with the father – Where the mother sought to re-open the proceedings pursuant to Rice and Asplund (1979) FLC 90-725 – Where the respondent mother has died during the course of the new parenting proceedings – Best interests of the child – Discharge of the 2019 orders that refer and relate directly to the mother – All extant applications dismissed Legislation: Family Law Act 1975 (Cth) ss 60B, 64B(2), 65C, 65K Cases cited: Campion & Gene [2020] FamCA 588
Gladwell & Gladwell [2019] FamCA 731
Gladwell & Gladwell [2022] FedCFamC2F 985
Rice and Asplund (1979) FLC 90-725; [1979] FamCA 84
Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 29 July 2022 Place: Sydney The Applicant: Litigant in person (did not participate) The Respondent: Litigant in person ORDERS
SYC 2527 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GLADWELL
Applicant
AND: MR GLADWELL
Respondent
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
29 JULY 2022
THE COURT NOTES THAT:
A.The father wrote to my chambers on 27 July 2022 to notify the Court that the mother had passed away on 22 July 2022.
B.The principles of Rice and Asplund should apply if any other interested person may wish to make an application for parenting orders for the child, X, born in 2012.
THE COURT ORDERS THAT:
1.The Compliance and Readiness Hearing listed on 16 August 2022 be vacated.
2.Orders (3), (5)–(18), (20)–(25), (27)–(28), (30)–(37) of the Honourable Justice Gill dated 14 October 2019 be discharged.
3.All extant applications otherwise be 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gladwell & Gladwell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter concerns the parenting arrangements for the child, X, born in 2012 (“the child”).
The child is the son of the father, Mr Gladwell (“the father”) and the mother, Ms Gladwell (“the mother”). The parties were married in 2011 and separated on 1 April 2014.
On 14 October 2019, final parenting orders (“the 2019 orders”) were made by Gill J; Gladwell & Gladwell [2019] FamCA 731. Relevantly for these proceedings, Orders 1–7 provided the following parenting arrangements:
1.All previous parenting orders in relation to the child [X] born … 2012 (['X' ]or 'the Child') are hereby discharged.
2.The Father, [MR GLADWELL] ('the Father'), will have sole parental responsibility for X.
3.Within forty-eight (48) hours of making a decision regarding [X's] long term care, welfare and development the Father will advise the Mother, [MS GLADWELL] ('the Mother'), in writing about the decision he has made.
4. [X] will live with the Father.
5. [X] will spend time with the Mother on the following basis during school term time:
(a)On the first Thursday of each NSW School Term and each alternate Thursday thereafter, from after school on Thursday until before school on Friday.
(b)On the following Thursday and each alternate Thursday thereafter, from after school on Thursday until before school the following Monday.
6.[X] will spend time with the Mother on the following basis during school holiday time:
(a)During the Term 1, 2 and 3 school holiday periods, [X] will spend time with the Mother for one half of each school holiday period as agreed between the parents but in the absence of agreement, the first half of each school holiday period commencing at the conclusion of school on the last day [X] attends school each term and concluding at 5.00pm on the Saturday that is closest to the midpoint of the school holiday period.
(b) During the Term 4 school holiday period, [X] will spend time with the Mother for one half of the school holiday period as agreed between the parents but in the absence of agreement, as follows:
(i) In years ending in an odd number, the first half of each school holiday period commencing at the conclusion of school on the last day [the child] attends school each term and concluding at 5pm on the Saturday that is closest to the midpoint of the school holiday period; and
(ii)In years ending in an even number, the second half of each school holiday period commencing on the Saturday that is closest to the midpoint of the school holiday and concluding at 5.00pm on the day that is immediately prior to the day [the child] will commence attending school in the new school term.
7. For the purpose of orders 5 and 6 hereof:
(a)If any day specified in order 5 falls on a non-school day, then the Mother’s time is to commence at 3.00pm and/or conclude at 9.00am.
(b)The school holiday period is defined as commencing on the last day [X] attends school each school term and concluding on the day immediately prior to the day [X] commences attending school in the new school term.
(c)[X] will spend such other time with the Mother as agreed between the parties in writing (including but not limited to SMS, Our Family Wizard Application (OFW) or email communication).
On 7 June 2022, the father filed an Application-Enforcement seeking to enforce Orders 4 and 5 of the 2019 orders. His application stated the following reasoning for an enforcement:
1. the applicant seeks an enforcement warrant to allow Police to facilitate the return of the child to the applicant
The respondent without reasonable excuse did not return the child to the applicant as per the orders. The child did not attend school and the respondant did not notify the applicant that the child did not attend school, of the reason why the child did not attend school and did not present or make arrangements for the return of the child
(As per the original)
The father deposed, in his supporting affidavit filed 7 June 2022, that the child attended school on Thursday 2 June 2022 and was in the care of the respondent at the conclusion of the school day as per Order 5 of the 2019 orders. Following correspondence between the parties, the father attended the child’s school on 3 June 2022 to allow for the return of some of the child’s possessions. The father was informed by the school that the child had been marked absent that day.
On the following Monday 6 June 2022, the father received a text message from the child’s school stating that the child had been marked absent once more. The father proceeded to contact the mother regarding the child’s absence but received no response. The father outlined, at paragraph 8, of his affidavit the circumstances that led to his filing of the Application-Enforcement:
As I had not heard from the respondent I attended [Suburb C School] at 3pm to collect [the child] as I had not heard to the contrary from the respondent. I went to the office and was advised that [the child] had not attended today.
I waited until approximately 3.15pm and then proceeded to [Suburb QQ] Police Station to ask whether there was anything the Police could do as I was concerned for my child as he has not been at school since his mother collected him last Thursday and she had not replied to any of my messages and that she had not handed the child over as per the orders. I provided the Police a copy of the orders.
On 21 June 2022, the matter had its first return before a judicial registrar. The judicial registrar made a notation that,
E.The Court is informed that following the Mother collecting the child from school on Thursday, 2 June 2022, the child has not attended school since that date, nor has the child been returned to the Father. The Father has had no contact with the Mother or child since.
The judicial registrar set the matter down for interim defended hearing before Judge Eldershaw on 28 June 2022.
On 22 June 2022, the father filed an Application in a Proceeding seeking “to file an amendment in proceedings to include recovery orders.”
On 23 June 2022, Judge Eldershaw made orders in chambers for the parties to attend the interim defended hearing in person at the Sydney Registry and for the mother to deliver the child to the Court Children’s Services prior to the commencement of the hearing.
On 27 June 2022, the mother filed a Response and a subsequent Amended Response to the father’s Application in a Proceeding. The mother sought for the father’s two applications on foot to be dismissed. The mother’s proposed orders included for the majority of the 2019 orders to be discharged and for the mother to have sole parental responsibility.
At the interim defended hearing on 28 June 2022, Judge Eldershaw made orders returning the child to the care of the father and for Order 5(a) of the 2019 orders to be reversed for the forthcoming school holiday period. Her Honour treated the mother’s Response to an Application in a Proceeding filed on 27 June 2022 as an Initiating Application and subsequently transferred the proceedings to Division 1 of this Court. The father was ordered to file a response to the mother’s application within 28 days. Her Honour made a notation that the matter would require a determination of the threshold question of whether the 2019 orders should be re-opened pursuant to the principles adumbrated in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”).
On 5 July 2022, the mother’s solicitor filed a notice of ceasing to act.
On 7 July 2022, orders were made by a deputy registrar for the matter to be set down for a Compliance and Readiness Hearing before me on 16 August 2022.
On 27 July 2022, the father wrote to my chambers to advise the Court that the mother had unfortunately passed away from cancer in 2022. I instructed my associate to respond to advise the father that the matter would be listed for hearing on Friday 29 July 2022 in circumstances where it would not be appropriate to require the father to wait until the Compliance and Readiness Hearing on 16 August 2022 for this matter to be finalised.
As discussed by Baumann J in Campion & Gene [2020] FamCA 588, when a parent who is a party to the proceedings dies, the parenting proceedings come to an end and no determination by a Court is required.
The father has advised me today that on 28 July 2022, he received correspondence from a firm of solicitors indicating that they were instructed to represent the interests of the now deceased mother in this matter. The father advised those solicitors of the listing before me today. There has, however, been no appearance by those solicitors.
THE LAW
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
It is not in dispute that the parties’ respective applications as the child’s parents were made pursuant to s 65C of the Act.
Section 64B of the Act outlines when a parenting order may deal with one or more aspects of a child’s life. Specifically, s 64B(2) outlines:
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
CONSIDERATION
In circumstances where the mother has now passed away and where the 2019 orders relate solely for the operation of the child having a meaningful relationship with both of his parents, it would only be appropriate to discharge the orders of Gill J that refer and relate directly to the mother in circumstances where it would now not be possible for those orders to be effected.
The orders have been in effect since 2019 and have provided for the child to have a meaningful relationship with both of his parents in an environment free from the conflict of the previous litigation. This is in circumstances where orders were made for the father to have sole parental responsibility and noted by Gill J at [200]–[201] that,
…[t]he dynamic between the parties is indicative of high risk of either decisions not being able to be taken for [the child], or for [the child], and those treating him or educating him, being exposed to the extreme conflict between the parties.
This points to an order for sole parental responsibility to be made. That sole parental responsibility should rest with the parent that has the primary care of [the child], as that parent will have the best insight into [the child’s] needs, and of the practicalities that surround long term decision making for him.
Further, Judge Eldershaw outlined the following at [68]–[76], [78]-[79] and [86] of her ex tempore reasons for judgment delivered at the interim defended hearing on 28 June 2022; Gladwell & Gladwell [2022] FedCFamC2F 985,
68.The other primary consideration is that of risk pursuant to s 60CC(2)(b) of the Act, and s 60CC(2A) tells me that where there is a tension between these things, then the risk issue would prevail.
69.And so I ask myself these two questions: is there a risk of harm in the father’s care as to warrant me not reinstating the Orders of the Honourable Justice Gill and, similarly and conversely, is there a risk of harm in the mother’s care, and what does that look like, bearing in mind that the father does not seek to suspend or otherwise vary those Orders made by the Honourable Justice Gill?
70.Turning to the risk of harm in the father’s care, the mother leads evidence through her own affidavit and that of [Ms W] about things such as safety concerns, records that [X] says, “No-one is listening to me,” that [X] says, “I will run away,” and that [X] says, “I will kill myself”, if made to return to the father.
71.That is an important statement that no doubt weighs heavily on everybody, that a child would say, “If you make me go back to my father, I will ‘kill myself’,” and I take that very seriously, albeit untested. But the thing about that statement, as it appears in the mother’s affidavit, is that it is without context. It is, as it were, evidence untethered, and, without context, it is very difficult for me to know what to make of it.
72.I note the contents of the mother’s evidence at paragraphs 17, 20, 21, 24, 25, 49 and 50 of her affidavit, and in all of those paragraphs, though I have read them carefully and twice, I do not see particulars that would enable me to put my hands around the evidence in such a way on an interim basis as to evaluate the risk at such a level so to justify departure from Justice Gill’s Orders.
73.Similarly, [Ms W] in her affidavit speaks about abuse and threat and harm and words of that kind. However, those words are conclusions, they are opinions, they are findings, but, again, they are not particularised into evidence that could enable me to understand with the necessary degree of granularity, albeit at an evaluative and interim stage, the material that would have me depart from the Orders of the Honourable Justice Gill. There is simply no evidence at this point that rises to a level, and I so find this, that would cause me to disturb the operation of those 2019 Orders.
74.I questioned the mother’s solicitor as to why the mother, if so concerned for [X’s] welfare, did not seek to reopen the proceedings at any time in the last 12 months since, for example, she has been recounting concerns as to give an evidentiary underpinning to those concerns. [Ms EE], to her credit, did not seek to give evidence that she could not give or make a submission that was not founded in the evidence.
75.There simply was not an answer that could be given, but it raises in my mind then why it was that these steps have not been taken. [Ms EE] did say that the mother was concerned that she could not bring an application because perhaps – and these are my words, but my understanding – that she would not be believed, but I question that because this is the Court, other than the Children’s Court, that is reposed with responsibility for the welfare of children.
76.Is there a risk of harm in the mother’s care. Firstly, the father, as I have indicated, does not seek to disturb the Orders of the Honourable Justice Gill other than to invert the school holiday Orders, which is more of a pragmatic consideration than much more. He does not, for example, seek to suspend the time Orders.
…
78.The Honourable Justice Gill, as I have indicated, made Orders at orders 30, 31 and 32 with respect to restraints. He also made Orders that the father have sole parental responsibility with respect to health and that the father have the decision making as to which medical services [X] is to use. Those orders were made for reasons that are set out in detail in Justice Gill’s decision.
79.Those Orders have not been disturbed. The facts merge in that judgment. As far as I understand, nobody ever appealed them and if they did, they have withstood the appeal. It is not for me, on an interim basis, to drill into them, nor do I need to make further Orders to prevent the mother, for example, from taking [X] to the police because those Orders have already been made.
…
86.I am also mindful of the effect of a change of circumstances on a child, and absent any evidence as to how [X] would cope with a change of circumstances, I am encouraged to reinstate effectively the Honourable Justice Gill’s Orders.
Whilst acknowledging that her Honour was conducting an interim defended hearing where there was no ability for evidence to be tested through cross-examination, it is important to emphasise that only one month ago, her Honour determined that it would not be in the child’s best interests to vary Gill J’s 2019 orders to allow for the child to live with the mother. Further, and importantly, her Honour emphasised at [73] that “[t]here is simply no evidence at this point that rises to a level, and I so find this, that would cause me to disturb the operation of those 2019 Orders.”
Therefore, I am satisfied that the child is currently in the care of a safe and stable parent who will fulfil their duties, and meet their responsibilities concerning the care, welfare and development of the child. Further, the statutory consideration of s 65K of the Act does not apply in circumstances where Gill J’s orders outlined that the child would live with his now surviving parent, his father.
In the absence of an additional application for parenting orders from the child’s grandparents or any other person concerned with the care, welfare or development of the child (s 65C of the Act), I am satisfied that this matter should come to finality. I will make a notation that the principles of Rice and Asplund should apply if any other interested person may wish to make an application for parenting orders for the child. As was the proposed course by her Honour when the matter was initially referred to my chambers for a Compliance and Readiness Hearing.
CONCLUSION
Accordingly, I make the following orders:
(1)The Compliance and Readiness Hearing listed on 16 August 2022 be vacated.
(2)Orders (3), (5)–(18), (20)–(25), (27)–(28), (30)–(37) of the Honourable Justice Gill dated 14 October 2019 be discharged.
(3)All extant applications otherwise be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 23 August 2022
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