Glasson and Drover & Anor
[2019] FamCA 974
•18 December 2019
FAMILY COURT OF AUSTRALIA
| GLASSON & DROVER AND ANOR | [2019] FamCA 974 |
| FAMILY LAW – PARENTING – The principle in Rice & Asplund (1979) FLC 90-725 – Where final Orders were made by consent – Where the Applicant spends time with the child, but is not a parent of the child – Where the child has severe separation anxiety from the mother that is affecting her day to day functioning – Where the child is expressing strong views about spending time with the Applicant – Order for parenting proceedings to be continued. |
| Mahoney & Dieter [2019] FamCAFC 39 Rice & Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Glasson |
| RESPONDENT: | Ms Drover |
| SECOND RESPONDENT: | Mr Pearse |
| FILE NUMBER: | SYC | 6275 | of | 2019 |
| DATE DELIVERED: | 18 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 12 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers (Sydney) |
| COUNSEL FOR THE RESPONDENT: | Mr Sweeney |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
| SOLICITOR FOR THE 2ND RESPONDENT: | Gordon & Barry Lawyers Pty Ltd |
Orders
IT IS ORDERED
That the Amended Response to Application in a Case filed 2 December 2019 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Glasson & Drover has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6275 of 2019
| Ms Glasson |
Applicant
And
| Ms Drover |
Respondent
And
Mr Pearse
Second Respondent
REASONS FOR JUDGMENT
In November 2015, parenting orders were made by consent in relation to the arrangements for X who was born in 2010 and was then five years old.
Relevantly, those orders provided for X to spend time with the applicant. The applicant is not a parent of X but, for a time, lived in a de facto relationship with the respondent who is X’s mother. The applicant and the mother separated in January 2014.
The orders did not make any provision in relation to X’s brother M who is 12 years old.
X’s and M’s father, Mr Pearse, appeared by his solicitor and indicated that he consented to being joined as a respondent in the proceedings but did not wish to be heard in relation to this application. He may wish to participate at a later time.
The relationship between Mr Pearse and the respondent is amicable and he spends time with X as arranged with her mother.
The mother has filed an application seeking to reduce the time that X spends with the applicant. The applicant has filed a response seeking the dismissal of the proceedings and invoking what is commonly referred to as the “rule in Rice & Asplund”.
It is that application which is to be determined today.
THE LAW
The applicant relies on the principle first enunciated by the Full Court in Rice & Asplund (1979) FLC 90-725 where the Court held:
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 that 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 change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). 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 the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
The application of the principle was further explained by the Full Court in Marsden & Winch (2013) FLC 93-560:
In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
(footnotes omitted)
In Mahoney & Dieter [2019] FamCAFC 39, the Full Court stated the rule simply:
...consider the past circumstances, the evidence on which the decision was based and whether there is a likelihood of orders being varied in a significant way as a result of a new hearing.
WHAT IS THE ASSERTED CHANGE OF CIRCUMSTANCES?
The orders were made by consent in November 2015 on the second day of a defended hearing about parenting. X was five years old and had not started school.
They currently provide for X to spend time with the applicant:
· Each Thursday after school until Friday morning.
· For one weekend in each month alternating between 3pm Saturday until 3pm Sunday in one month and 3pm Saturday until school on Monday in the next month.
· For three hours on the Applicant’s birthday and on X’s birthday.
· On Christmas Eve from 9am until 2pm.
· During the short school holidays for four nights.
· During the long school holidays for one period of four nights and one period of three nights.
The regime provided in the November 2015 orders was implemented.
The mother deposed that, in early 2017, X was becoming upset at school and that she became increasingly resistant to going with the applicant.
At the start of the 2019 school year X sporadically complained to her mother that she did not want to stay the night with the applicant but the mother encouraged her to go.
The mother deposed that X’s distress has heightened since May 2019. She deposed that X was hysterical and wailing but was persuaded to go.
The mother deposed that when she delivered X to the applicant on 1 June 2019, X was crying.
X commenced seeing Ms Q, a clinical psychologist, in July 2019 and has now seen her on a total of 10 occasions.
In the July 2019 school holidays X resisted going to the applicant saying “I am away from you all...and I am alone. I don’t want to go.” On 2 July 2019 the mother received a video call from X who was crying hysterically and saying “I miss you mum...I want to come home...I miss you so much.” When she returned home from her days with the applicant X said to her mother “I am so happy to be home mummy”.
On 27 July 2019 X cried on her way to the applicant’s home saying she didn’t want to go. When they arrived X didn’t want to get out of the car and when the mother left she was still crying.
The mother deposed that from August 2019 X started becoming uneasy from Wednesday morning and is visibly distressed on Wednesday night saying she doesn’t want to go.
On 1 August 2019 X’s teacher emailed the mother saying:
I just wanted to let you know that X was a bit sad and missing you earlier today.
On 5 August 2019 X’s teacher sent an email to the mother stating:
X also indicated that she wasn’t looking forward going to [the applicant’s] that afternoon. In an effort to help her have a more positive frame of mind I suggested that she would have a nice time to which she replied that she sometimes did and sometimes didn’t…
The mother deposed that on Thursday 15 August 2019 she had to coax X out of the car at school and X went into school sobbing. She received a call from the school at 2.30pm asking her to collect X who was teary and unwell. She collected X and comforted her and made her available for the applicant to collect her.
X last stayed overnight with the applicant on 22 August 2019.
The mother deposed that on Thursday 22 August 2019 she woke X and X burst into tears. The mother asked X what was wrong and X said “I don’t want to go to [the applicant]”. The mother deposed “She cried all morning and was crying when I walked her into school. I had to leave X at school crying. X’s teacher sent me an email…”
The email from X’s teacher stated:
X’s been a bit teary today. She’s missing you and made sure she reminded me that she was going to see [the applicant] today. … Are there any strategies her psychologist has suggested to help her? It would be helpful [sic] know so that, if practicable, I can use them here at school, too.
X did not spend the overnight time with the applicant on 29 August or 5 September. The mother wrote to the applicant suggesting that X not spend overnight time on 12 September and, in the absence of a reply from the applicant, did not send X to school on that day.
X has not spent overnight time with the applicant since then but has spent time with the applicant during the day.
Ms Q provided a report dated 24 September 2019 where she stated:
The reason for the referral was that X’s mother… reported X was becoming increasingly distressed whenever X had to separate from her. [The mother] said she had observed X’s level of distress had escalated over the period of this year and this was a concern to both X and herself.
Ms Q stated:
In our initial session together X and I explored, through symbols, her immediate family members. X included in this [her mother], her brother, M, her nanny, Ms S and [the applicant] who, at that stage, X was spending time with as per court orders. In a ‘how the family is now’ and ‘how you would like your family to be’ depiction, X initially had [the applicant’s] symbol on the outer edge of the family, and then moved it closer into the family when asked how she would like her family to be.
In that initial session, when asked, X reported feeling she was the saddest and the most worried in her family.
When Ms Q explored with X her worries X said that her biggest worry was “saying goodbye to Mummy”. Ms Q explored with X the triggers that made separating from her so difficult and X said that these included school drop off, going to camp, attending birthday parties and going to the applicant’s house.
Ms Q reported:
X said school drop off “feels like poop”. In relation to going to [the applicant’s] house, X said she liked going there to “make box forts and slime”. X then added that going to [the applicant’s] house was also hard: “The weeks fly by – I see [the applicant] too much”. She then said: “I don’t want to hurt [the applicant’s] feelings. When we spoke about the amount of time X spent at [the applicant’s] house, X said: “It’s easy to say goodbye when I go to [other houses] - it’s not for as long as with [the applicant]”.
In a session in early September X disclosed: “I didn’t want to go to [the applicant’s] last week so I didn’t go to school today”. In the most recent session X and I have had together X reported “I want to go to City R just to see Country U, but not for as long”. She also disclosed: “I’ve been missing [the applicant]”. When we explored how this could work for X, she said she wanted to see [the applicant] “One or two overnights allowed only”.
In conclusion Ms Q stated:
It is concerning to hear from X that her anxiety has reached a level whereby she is not b [sic] able to engage with specific events. In child-inclusive practice it is my goal to hear what a child is expressing in the neutral, supportive space of my room and then relate this back to family members. The aim is for the child’s voice to be heard and it is then up to the adults in the child’s life to make appropriate amendments to take into consideration what has come out of the sessions I have had with the child.
My recommendation is to take the information contained in this report back to mediation to explore how X’s interests can best be met. I also recommend that X continue to engage with me (or another psychologist) to develop further strategies for X to work on her separation anxiety.
Since writing the report Ms Q has seen X on two further occasions being 14 October 2019 and 29 November 2019. Although the notes which were produced by Ms Q are difficult to read it appears that X continues to express concerns about being sad and not wanting to spend overnight time with the applicant.
On 15 October 2019 the mother emailed X’s teacher suggesting that X be introduced to the school counsellor. Those arrangements have since been made.
On 31 October 2019 X’s teacher emailed the mother stating:
I just wanted to let you know that X was teary at the start of school this morning and said she was missing you a lot. She looked quite sad during the start of the first lesson but picked up as the lesson went on. At the end of that lesson and just prior to her PDH lesson, she became quite teary again. After comforting her, I found it a bit harder than usual to distract and redirect her so I took her downstairs to the playground, grabbed a basketball and we went to throw some hoops outside the Year 2 room. We were there for about 10 to 15 minutes and we just talked and shot hoops for a while. This seemed to do the trick and the rest of the day was a good one for X. She was quite happy by the end of the day having just finished a fun drama lesson.
…
On 14 November 2019 X’s teacher emailed the mother stating:
I just wanted to let you know that [X] is having a tough morning… I’m doing what I can to comfort her with lots of hugs and am trying to help her put in place some of the strategies she has been working on with the school counsellor…
X’s nanny, Ms V swore an affidavit corroborating the mother’s evidence in relation to X’s increasing distress and reluctance to go with the applicant.
Ms V deposed:
Since the overnights have stopped X is still reluctant to go to [the applicant’s] house and has said “I really don’t want to go… why do I have to go”. However I have said: “it is only for a few hours… you will be home in your bed tonight”. Whilst she seems unhappy with the situation, she has not become as hysterical and as upset in the past.
The mother deposed that the applicant, through her lawyers, has threatened to bring contravention proceedings. In her affidavit sworn 2 December 2019 in support of this application, the applicant refers to the mother’s breaches of the orders and to her continued breaching of the orders.
The applicant accepts that X “has developed an anxiety in separating from [the mother]” since May or June of 2019. She agrees that X has, in the last few months, been teary at changeovers and sometimes says she is missing her mother. However, she says that X has not asked to go home and she has settled and relaxed.
The applicant posits a number of alternate reasons for X’s reluctance to leave her mother.
Whatever may be the pathology of X’s anxiety and reluctance to leave her mother, it appears that it now is affecting her school attendance and her general well-being.
X was five when the orders were made and not attending school. There is no evidence before me of any views which she may have expressed in November 2015.
She is now nine years old and going into Year 4 at school. She is expressing strong views and they must be given some consideration.
The passing of time and the child’s growing maturity might not be sufficient, standing alone, to justify a finding that a matter should be revisited but it is a significant consideration in the determination.
There are three areas of the evidence that lead to the conclusion that it is necessary to reconsider the arrangements for her care and that it is likely that the existing orders will be varied in a significant way.
The first is that the child’s anxiety, whatever may be its cause, is affecting her day to day functioning. The mother and the applicant, with the assistance of mediation, of Ms Q, the school counsellor and X’s teacher, have not been able to resolve the situation.
The second is that she is now nine years old, the orders having been made four years ago and is expressing strong views.
The third is the likelihood that, if nothing further is done, the applicant will file contravention proceedings which will have the effect of reopening the parenting arrangements.
The mother’s application will proceed.
I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 December 2019.
Associate:
Date: 18/12/2019
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