Glenville and Glenville

[2008] FamCA 754

FAMILY COURT OF AUSTRALIA

GLENVILLE & GLENVILLE [2008] FamCA 754

FAMILY LAW – CHILDREN – With whom a child lives – 9 and 7 yo – Always resident with mother – Consent orders 2005 – Re-opening – A preliminary consideration – Evidence – Evidence of 18 yo child of marriage – Children’s statements – Insufficient probative evidence to re-open – Father’s application dismissed - Costs

APPLICANT: MR GLENVILLE

RESPONDENT: MS GLENVILLE

FILE NUMBER: NCC 2976 of 2007

DATE DELIVERED: 8 July 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 8 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Peattie

SOLICITORS FOR THE APPLICANT: Winder Lawyers, Newcastle, NSW

COUNSEL FOR THE RESPONDENT: Mr J Linklater-Steele

SOLICITORS FOR THE RESPONDENT: Turner Freeman Lawyers, Newcastle, NSW

Orders

1. That the Application for Final Orders filed by the Father on 3 October 2007 be dismissed.

1. That the question of costs be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Glenville & Glenville is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  NCC 2976 of 2007

MR GLENVILLE

Applicant

And

MS GLENVILLE

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. In this matter, the father has before the Court an application for a change of residence in relation to two of the children of the marriage, R, born on in July 1998, and H, born in November 2000.  The parents were married in November of 1991 and separated in January of 2002.  There are two other children of the marriage, D who is 18, and J who is 16. 

2. As I understand it, all four children remained with the mother at the time of separation.  Although D and J have, from time to time, resided with their mother, neither D nor J currently reside with their mother.  They are not the subject of any applications before the Court.  What is certain is that R and H have, at all times, been in the fulltime care of their mother.  Indeed, R was only three-and-a-half years of age at the date of separation and H was 14 months.

3. Not only have those two children been in the primary care of their mother, in September of 2005 proceedings were before the Court and consent orders were made affirming the mother as the primary caregiver.  By the orders made by consent by the parties, the children were to reside with their mother and have regular contact with their father.  At that stage, the children were 7 and 4 respectively.

4. Notwithstanding that by those orders the father was enabled to have regular contact with the children, in early 2006 he chose to move from the south east Queensland region to the central NSW coast.  In any event, he moved a substantial distance from the children so that he was no longer able to provide to his children the type of regular contact they may have benefited from.

5. The children have remained with the mother up to the end of the September school holidays after a period when they had been with their father.  It is to be noted that the two children, who have been primarily raised by their mother, continue to enjoy very good relations with their father.  That is a credit to the mother, in that, notwithstanding the difficulties the parties have personally experienced, the mother has not allowed that to interfere with her obvious support of the children's relationship with their father and not seek to contain their open love and affection for their father.

6. At the end of the September 2007 school holidays, the father retained the children asserting that they were expressing very strong apprehensions about being returned to their mother and very strong preferences to be allowed to remain with their father.  He filed an application in October 2007.  The mother filed a response.  The matter first came before a Federal Magistrate in Newcastle, who ordered the immediate return of the children to the mother and the proceedings between the parties were ultimately transferred to this Court.

7. The matter came before me as a first day hearing on 23 May 2008 and Mr Linklater-Steele, counsel for the mother, raised the issue of the so-called Rice & Asplund principle, that is, whether this case should be re-litigated only some two years after final orders were made.

8. I adjourned the matter to today's date for specific consideration of that preliminary question, which adjournment afforded the father the opportunity to place further evidence and further submissions before the Court.  He has had some six to seven weeks to do so.  I have received comprehensive submissions made on behalf of the father by counsel retained for him, Mr Peattie of counsel from Newcastle, who has provided submissions and appeared today and made further oral submissions.

9. A summary of the reasons the father sought to rely upon to, firstly, justify a change of residence, and in relation to the preliminary issue in this matter, are set out in his affidavit.  Firstly, he relies upon the fact that he moved away and was therefore seeing less of the children;  secondly, he raises the mother's use of marihuana;  thirdly, he relies upon the children's stated wishes;  fourthly, he raises a concern about regular changes of schooling;  fifthly, he outlines issues relating to R’s continuing ill health;  sixthly, he expresses concern about the lack of extracurricular activities;  seventhly, the concern that R might be required to perform tasks around the house and, eighthly, allegations of abuse, particularly at the hands of the mother's current partner, Mr G.

10. In support of those assertions, the father largely relied upon a combination of statements made by the children to him; evidence by the parties' daughter, D; evidence from a former childcare worker, Ms N, and information from the paternal grandmother, Mrs Glenville. 

11. At this stage of the proceedings, it is accepted by counsel for the father that the Court has available to it the discretion to consider the so-called Rice & Asplund principle, either as a preliminary issue or at the conclusion of the trial. In his written submissions, counsel contended that, in this case, the more appropriate option would be to consider this matter at the conclusion of the evidence.

12. The propositions identified in cases such as Rice & Asplund might be summarised by observing that, ordinarily, it is not in the best interests of families, and particularly their children, to continually re-litigate matters relating to their welfare.  Litigation takes its toll on parties and particularly upon their children.  It has been recognised by the Court, as highlighted in a quotation set out in the written submissions of counsel for the mother, that:

    The Court should not lightly entertain an application to reverse an earlier custody order.  It would need to be satisfied by the applicant that there was some changed circumstance which would 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.

13. In other words, before embarking upon subsequent litigation, it is incumbent upon the Court to examine factors such as:  the interests of each of the parties;  the desirability of finality and certainty in litigation;  the undesirability for parties and their children of the prospect of repeated litigation, uncertainty and instability, and the broader interests of litigants at large who are seeking access to limited judicial resources to hear and determine matters relating to children's welfare, which can be frustrated by allowing repeated litigation by a small portion of the litigants.  Most importantly, it is necessary to take account of the welfare of the subject children. 

14. As a consequence of these considerations, the Court is enabled to consider as a preliminary question whether a re-hearing is justified when previous final orders have been made.  Obviously, it would be entirely inappropriate to litigate on the same issues and the same evidence and it is open to the Court to examine whether there has been a sufficient change in circumstances to justify imposing upon parties and their children a re-hearing.

15. At this stage of the enquiry, it is necessary to focus upon the evidence of the applicant.  The respondent has given detailed evidence in reply, most of which brings into serious issue the relevance, validity and reliability of much of the evidence relied upon by the father.  However, on this preliminary question, I must largely accept the father's evidence at face value and determine whether it does demonstrate a sufficient change of circumstances to entertain a re-hearing, taking into account the above factors. 

16. Whilst, on the one hand, the starting point is an acceptance of the father's evidence at face value, in my view, it is, at the same time, appropriate to undertake some evaluation of that evidence.  I am entitled to look at factors such as the inherent probabilities behind such evidence and to take some account of any objective evidence on contentious points.  It is incumbent upon me to examine the detail of the matters raised by the father in the context of, firstly, there being a previous final order and, secondly, the overriding paramountcy of the welfare of the children. 

17. The sources of information primarily relied upon by the father are the two subject children who are only nine and seven, another child of the relationship who is 18, his mother, and a Ms N, who was a worker at a childcare centre used by the parties in the past. 

18. In relating to the evidence of the childcare worker, it is asserted by the mother and the childcare centre director that the deponent, Ms N, was, in fact, a woman in a relationship with the father for a number of years subsequent to separation.  That relationship was against the child centre's policies for obvious reasons of likely conflict of interests.  Ms N has not disclosed any such relationship in her reports and, obviously, that would be a very significant consideration.  I need to record that, whilst the information from the mother and the director as to the fact of that undisclosed relationship is potentially of great moment, I do not take into account those assertions at this time because they have not been the subject of a direct response by Ms N. 

19. In terms of simply recording the mother's responses, they represent quite detailed denials of the assertions by the father.  In a very large portion of the evidence on those issues, she is able to rely upon a great deal of corroborative evidence from other witnesses.  She asserts that the children are, in fact, being well cared for and doing well in her care and she is again corroborated on those assertions.  She says that the father's assertions about the children's stated fears and preferences are not correct and that, in fact, the children wish to remain residing with her. 

20. As to the evidence of her daughter, D, she again denies much of what is said by D.  She says that she and D experienced a difficult relationship during D’s teenage years and that, regrettably, they are currently alienated.  By inference, she suggests to the Court that the views expressed by her are necessarily somewhat coloured. 

21. I merely recite those matters simply to record that there is quite clear conflict on a number of significant issues of fact.

22. The most important analysis of the totality of the evidence at this stage of the proceedings is to explore to what extent the factors and evidence relied upon by the father represent developments post the September 2005 consent orders, or are about matters of which the father could not have been aware at the time of the consent orders. 

23. The recent statements by the children clearly fall into a post-2005 compartment and I will examine those separately. 

24. I turn to the individual matters referred to by the father.  It is, perhaps, a somewhat novel proposition that a father who chose to remove himself from regular contact with the children would seek to rely upon his conscious decision to do so as a factor to be taken into account in the exercise of a discretion to reopen a case against the other parent.  I am dismissive of such a proposition. 

25. As to the use of marihuana, the father relies upon evidence of D and Ms N. 

26. As to the change of schooling, the objective evidence indicates that there was a change of schooling to the W School, which move was necessitated and compatible as a consequence of the mother entering into a relationship with Mr G.  This is an exigency of life. 

27. The allegations in relation to R’s ill-health appear dated and dependent upon the evidence of D.

28. The lack of extracurricular activities is hardly a matter of significance when talking about nine year old and seven year old children but, in any event, it seems again, on the objective evidence, that the children have had typical exposure to activities of a wide range outside the strict bounds of their school curriculum.  Indeed, one of the father's complaints seems to be that the children are exposed to alternate experiences of other cultures and other religions.  I am somewhat puzzled. 

29. It appears to me that so much of the father's complaints are really to do with the differences between the mother and the father, their different attitudes to issues such as parenting, religion, culture and discipline, rather than being direct evidence of some failing on the part of the mother.  He does not like some of her lifestyle choices.  He has made different choices and would make different choices for the children.  In my view, many of his allegations are about those differences, rather than deficits. 

30. He raises a concern that R may be called upon to perform some tasks around the house and some parenting type tasks.  He refers to abuse of the children and refers to a number of statements made by the children in more recent times.  In May of this year, and again through his counsel today, the father effectively acknowledges that it is the disclosures of D which have been a large part of his motivation and represent the substantial evidentiary basis for this current application.

31. Therefore, it is important to look closely at the evidence D would provide if she was allowed to give evidence.  D has just turned 18.  It is clear on the evidence that there have been difficulties in the relationship between D and her mother.  In any event, the evidence of D is more striking in its lack of particularity, than it is for the evidentiary value which it exhibits.  Mr Peattie, counsel for the father, acknowledges his obligations to provide support for his client's case and also his obligation to make appropriate concessions.  He quite properly conceded the self-evident point, and that is, that D’s affidavit is largely expressed in very broad terms, does not provide particularity or detailed evidence, but contains a number of sweeping statements and assertions which either are obviously pre-2005 or, alternatively, by inference, must be dated. 

32. D fails to address with particularity and specifics as to dates, any matters which enable the Court to conclude that the matters about which she complains relate to the two subject children and relate to the period subsequent to the father's decision to consent to the children residing with the mother.  Further, and in any event, particularly having regard to the very sweeping nature of the statements she has made, it is appropriate to examine the probative value the Court would be likely to give to her evidence.  She is a child, she is a child of the parties, she is estranged from her mother, she identifies with the father, she is yet, of course, to be cross-examined, something that one would hope could be avoided. 

33. D is produced by the father, despite the strongest possible representations made to him by the Court in May about the hazards of enlisting a daughter against a mother in litigation.  In my view, taking those matters into account, together with a consideration of the limited probative value of the contents of her affidavit, it is possible that her affidavit would not even be received into evidence.  It is likely that it would be given limited probative value and, at the end of the day, D does not have much to offer at all about post-September 2005 factors. 

34. Exactly the same thing can be said about the affidavit of Ms N.  When it is specific, it is absolutely clear that she is referring to very dated events in 2003/2004 and matters which seem to pre-date the decision of the father to consent to the mother having residence in September of 2005.

35. The only event post-separation appears to relate to Christmas Day, when there were a number of people in attendance at the mother's home and Ms N said she could smell marijuana being used by someone, or some number of people at that particular event on that day.  That is, at least potentially, the only evidence from Ms N that seems to fall into the appropriate category under the Rice & Asplund principle.  Needless to say, this Court would be unlikely to be moved to change residence with the prospect that a person or persons at the mother's home on Christmas Day may have been using marijuana at some stage during that day.  That is really as far as that particular allegation can be taken.

36. The grandmother's evidence also falls largely into the pre-2005 factor.  There is some evidence relating to observations since that time.  But at the end of the day, there is little of value to be drawn from the evidence of the father's support witnesses post-September 2005. 

37. The father's observations, in large part, are either pre-2005 or raise matters about which he would have been well aware in terms of the mother's lifestyle.  Indeed, it is expressly asserted by the father that he ended his relationship with the mother because of his concerns about the mother's pursuit of some particular interests, which he seeks to rely upon years after separation and years after the 2005 consent orders.

38. What the father is left with, then, are the express wishes and statements of the children post-2005.  In this regard, I take the view that I am obliged to consider a number of aspects of that part of the case.  Firstly, and most fundamentally, I note that the children are still only nine and seven.  They are still of very tender years and the Court would necessarily exercise a great deal of caution before placing any significant weight upon what is said by children to one parent or the other.

39. What emerges from the evidence in this case is entirely typical of what a Court would expect to observe.  The father asserts that the children say to him that they want to live with their father and do not want to be with their mother and do not want to go back to their mother.  The mother asserts to the Court that the children tell her that they love her, they love their new school, they love their environment, they just want to be able to stay at those schools and visit their father.

40. When one is dealing with children of this tender age, particularly in situations where the resident parent has been able to foster and encourage the relationship between the children and the non-resident parent, which results in the children continuing to love each of their parents, it is very common to hear that they want to be with each of their parents.  Idealistically, they would like their parents to get back together.  At the very least, they would like their parents to stop fighting.  In those circumstances, they are very likely to say things that please their mother when they are with their mother, and to please their father when they are with their father.   For those reasons, the Court necessarily exercises caution, or has limited regard to the statements made by young children to their parents individually. 

41. In this case, in addition to that general proposition, I have the very specific evidence on that point from a family consultant, Ms B.  In this case, she has had the opportunity to interview the children, to bring to bear her observations, to bring to bear her experience and her qualifications.  What she has informed the Court through her report and through her oral testimony, is the specifics of that general proposition I have just identified.  That is, she has identified that these children love each of their parents.  They are aware of the feud between their parents.  She raised the concern of the children exhibiting, what she identified as, "splitting", saying what they think their father wants to hear. 

1. What also emerges from the report is that the children are very anxious about their parents’ renewed conflict.  They are very aware of it and they are troubled by it, and they want it to come to an end.

2. Firstly, then, in the exercise of my discretion on the question of evaluating the father's testimony about what the children say, I take account of the general proposition referred to previously.  I take account of my own experience in these matters.  I take account of the direct testimony of Ms B.  The end result is that I am left in a situation where I would place very limited weight indeed on what the children have said in the presence of the father.

3. There is evidence to suggest that the children have been placed under some pressure from the father.  Again, that is a finding I could only make at the conclusion of a final hearing.  But there are concerning aspects of the father's case which include, of course, his determination to enlist D against her own mother, in the face of the strongest possible representations by the Court.  Secondly, as if that was not bad enough, in this case I have been exposed to the fact that the father has seen fit to exhibit to his affidavit a written document by R, a 9 year old child, written whilst in his home, saying some horrible things about her mother.  That a father would allow a 9 year old daughter to engage in that exercise leaves me almost speechless.  Even if, as the father asserts, he did not actively require or encourage R to write that letter, the fact that he would see fit to use that letter and to, as it were, use R, a 9 year old girl, as a witness against her mother, causes me very, very grave concern and does bring into issue the father's capacity to enlist the children. 

4. In any event, whilst I necessarily stop short of making the strong adverse findings against the father which would flow from a determination that he actively participated in that exercise, what it says to me is that these children have been over-involved, made overly aware of the conflict, and that it would be dangerous to place any significant weight upon what is asserted by him to have been said by the children.

5. What is not surprising, is to observe that R now presents as a damaged, concerned, upset little girl, concerned that her mother is now aware of things that she has said about her, and she expressed her hurt, her anxiety, her confusion to Ms B. 

6. At the end of the day, having regard to her age, her presentation and the circumstances I have just described, one would not be moved to make a decision based on statements made by that child to the father which, interestingly enough, are entirely inconsistent with the statements she made, and later H made, to the only independent person who has spoken to the children, Ms B.

7. The children told Ms B that they wanted this fight to end.  They wanted to stay with their mother and they wanted to see their father.  I feel very confident that they want to be able to see their father without being burdened about the need to make statements against the other parent they love so much and need so much, their mother. 

8. On this preliminary question, once one removes from the exercise statements allegedly made by the children to the father, one is left only with the evidence of the other witnesses already referred to.  The inadequacies of that evidence have been identified.

9. In all the circumstances, I find that the father has failed to place before the Court any cogent evidence of any significant change of circumstances post-September 2005, so as to justify a re-hearing. 

10. Further, in the exercise of my discretion on this point, I have had particular regard to the presentation of these children and the harm and damage that they have already experienced as a result of this matter being re-litigated to this point.  I am absolutely satisfied that it is not in their best interests that this matter be re-heard and the decision delayed.  Hopefully, the feud can be brought to an end by the resolution of this litigation at this timely moment. 

11. In all the circumstances, I propose to dismiss the father's application filed in October 2007.

RECORDED:  NOT TRANSCRIBED

1. The difficulty is that I have based my decision on the father's evidence, not on the mother's evidence, other than to note that there is a conflict on the evidence, and I was specific on the recent issue of whether or not Ms N had been in a relationship.  I declined to make any findings.  So I have noted the assertions in that regard and then retreated from any findings. 

2. In any event, I understand that the father's submissions and material was meant to be in on some date in June and I understand it did not arrive until 4 July, which was Friday.  It ill behoves the father to rely upon lateness, when he did not give the mother the opportunity to prepare a response because he was well out of time and, effectively, only one clear day from the hearing.  I think that is all academic because, at the end of the day, my decision is not based on the contested evidence, but rather based upon an evaluation of the father's testimony. 

3. Whilst in children's matters, this Court is very loath to make orders for costs, and very loath to send any signal that suggests to parents that the doors of the Court do not remain open to hear and determine matters relating to their children, at the same time I think different considerations apply with second bites at the cherry.  The doors are wide open for everyone until there has been a final determination.  Necessarily, the doors are only ajar once you have been through, otherwise we would not have principles such as Rice & Asplund.  What lies behind those considerations are issues such as the emotional and financial costs of repeated and/or unmeritorious litigation. 

4. It follows from what I have said, that I have found that the father's application was without sufficient merit and, therefore, the parties, and in this instance the mother, has been put to costs unnecessarily.  The supplementary aspect of this case is that, again, even on a second bite of the cherry, one needs to be very cautious about imposing sanctions in the forms of orders for costs.

5. But in this case, in reality, the father has been given three bites of the cherry, because the microscope was applied, I believe, fairly and squarely to the father on the 23 May.  He had concerns.  He raised the matter with the Court.  This Court was going to have a good, hard look at this matter.  This requires the father to have a good hard look at this matter, to take stock, to take advice, and particularly to evaluate the circumstances upon which he says a case is justified.  He has been given seven weeks to reflect upon it.  He has had access to legal advice.  He was given guidance about enlisting one of the children of the marriage in the exercise.  He went further and enlisted two children, including a 9 year old.

6. He has persisted, and he has persisted at the end of the day without merit.  I pose the question:  why should the mother have to fund his flawed exercise?  It is not her fault that she has incurred these legal expenses.  My only reservation in terms of making an order for costs, relates to the lack of detailed understanding of the financial circumstances of the father.

7. I am prepared to contemplate giving him time to place evidence before the Court about his financial circumstances.  That will involve another appearance and further costs and, if I make an order for costs, that will involve him in not only his costs of that further appearance, but the mother's further costs.  That is a decision that needs to be made and I accept that is a difficult decision to make without instructions.

8. What I have in mind, I should say, is making an order for costs, at the very least for all of the costs incurred from 23 May to today's date.  I do not have a closed mind yet on whether I should go back beyond that.  My inclination is finding the balance between leaving the door open, but not allowing there to be people exposed to defending unmeritorious litigation.  But the balance might be found there. 

9. If the father wishes to make submissions, then I must take the view that the question remains at large and that those acting on behalf of the mother should be entitled to argue beyond that point.  On advice, he may want to cut his losses and say, "I do not want to make any submission on financial capacity", or, "I do not want to make any submissions that it should be something less than what I've intimated is my current inclination."

10. I have in mind giving his legal representative seven days. 

11. In that sense, I will formally reserve the question of costs.  I will give the father liberty to notify my associate within seven days if he wishes to be heard in relation to that, otherwise I will be likely to proceed to make orders largely in terms of those that I have indicated.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: