H & W
[2006] FMCAfam 376
•27 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & W | [2006] FMCAfam 376 |
| FAMILY LAW – Child aged 4 years and six months – application to vary existing orders for residence – consent orders made on 20 January 2005 which provide for child to live with father in D – maternal grandmother seeks orders that would see child living in I (Q) with her – child’s mother deceased – child has lived predominantly with father since mother’s death in March 2004 – father and child share indigenous background – maternal grandmother does not – maternal grandmother raises issues of exposure to family violence and neglect of child – whether child’s best interests dictate the issue of where she is to live should be re-opened – application of the rule in Rice & Asplund – application of section 60K of Family Law Act – application of less adversarial procedures – significant change of circumstances. |
| Family Law Act 1975 – ss.4, 60CA, 60CC, 60K, 69ZN, 69ZQ, 69ZR |
| Rice & Asplund (1979) FLC 90-725 Boyd and Boyd Unreported decision delivered 22 June 2006 NA5 of 2006 JG & BG 18 Fam LR 255 |
| Applicant: | E N H |
| Respondent: | S E W |
| File number: | DNM 170 of 2004 |
| Judgment of: | Brown FM |
| Hearing date: | 18 July 2006 |
| Date of last submission: | 18 July 2006 |
| Delivered at: | Darwin |
| Delivered on: | 27 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms S |
| Solicitors for the Applicant: | N & T |
| Counsel for the Respondent: | Ms P |
| Solicitors for the Respondent: | N A A L A S |
ORDERS
That pursuant to section 69ZW of the Family Law Act the Department of Family and Children’s Services (N T) (hereinafter referred to as “the Department”) is required to produce the following documents to the court:
(a)Any notifications to the Department of suspected abuse of the child Z J M born 18 December 2001 and in particular any details of notifications regarding the exposure of the aforesaid child to family violence or neglect;
(b)Any assessments conducted by the Department of investigations conducted by it in respect of such notifications together with any findings in respect of such notifications regarding the aforesaid child;
(c)Copies of any reports commissioned by the Department in respect of the aforesaid child in the course of investigating any such notification.
That the documents referred to in Order 1 hereof are to be produced by the Department to the court on or before 12 September 2006.
That pursuant to section 91B of the Family Law Act the Department is invited to intervene in these proceedings.
That the parties do attend Family Dispute Resolution at the Family Court of Australia Level 1 TCG Centre 80 Mitchell Street, D on a date and time to be advised to the parties with a family consultant, to discuss the care, welfare and development of the child Z J M born
18 December 2001 in an endeavour to resolve any differences between the parties in relation thereto.
That a copy of these reasons for judgment be provided to the Department of Family and Children’s Services and the Manager of Child Dispute Services at D.
That the proceedings be adjourned for further directions to 9.30am on 20 September 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 170 of 2004
| E n H |
Applicant
And
| s e W |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern Z J M, who was born on 18 December 2001. Her mother, T M M died tragically and unexpectedly on
6 March 2004. Since that time Z has lived predominantly with her father in the D area.
The parties to the proceedings are Z’s maternal grandmother E N H (hereinafter referred to as “the grandmother”) and her father S E W (hereinafter referred to as “the father”). As a result of an application filed in this court on 10 April 2006, the grandmother seeks final orders that would see Z living with her in I in Q and spending time with her father in D during school holiday periods. On any view this would be a substantial change to the arrangements which have persisted for Z’s care since her mother’s death.
The father filed a response to the grandmother’s application on 31 May 2006. It is his position that the grandmother’s application should be dismissed. Essentially it is his position that it would be inappropriate for the court to re-examine arrangements for Z’s care, as these were formalised by orders of the court made on 20 January 2005. These orders provided that Z should live with him in D and have regular contact with the grandmother both in D (if she chose to live in D) and Q (if she chose to live in I).
These orders were made, with the consent of each of the parties concerned, on the morning that the earlier applications of the parties, regarding Z, had been listed for final hearing. At that stage Z was separately represented and the court and the parties each had access to a family report, which had been prepared by Ms M, a psychologist in respect of Z and her respective relationships with both her father and grandmother. Ms M recommended that Z continue to live with her father in D. The consent orders, to which the parties consented on 20 January 2005, reflected Ms M’s recommendations and were supported by Ms O, who was Z’s representative.
In seeking the dismissal of the grandmother’s application, the father relies on the so called rule in Rice & Asplund, which cautions courts such as this one against “lightly entertaining an application to reverse an earlier custody order”. It is Mr W’s position that it would be contrary to Z’s best interests for there to be further proceedings to determine what arrangements are likely to be in her best interests, given it is only recently that similar such proceedings were concluded, ostensibly with the acquiescence of all those involved in Z’s care.
It is the grandmother’s position that, since the consent orders were made, there has been a significant change in Z’s circumstances, which justifies the court re-opening the issue of where she should live in future. These factors relate to allegations that Z has been subject to neglect by her father, particularly in relation to dental hygiene and has also been exposed to a violent and abusive relationship between Mr W and his current partner Ms K G.
The grandmother also alleges that the father has failed to make Z available to speak to her on the telephone, as required by the orders of 20 January 2005. In such circumstances, she argues that it is likely that the father is not willing to support Z’s important relationship with her grandmother and this is another reason why the earlier orders should be revisited.
The father does not accept any of these assertions. Both he and Ms G have filed affidavits which refute the allegations made against them. It is Mr W’s position that the grandmother’s application has no prospects of success and it is unwarranted for the court to entertain it, particularly as Ms M’s report addressed some of the issues which have been raised by Ms H both now and in the earlier proceedings. In addition Ms M was of the view that Z had “a close, secure relationship with Mr W” and as a result her “psychological welfare [would be] seriously compromised if she is removed from [his care].
Mr W and so Z have an indigenous background. Ms H does not. As a result, Z has a large extended family on her paternal side, which is centred in and around D. Ms M commented on this matter in her earlier report and was of the view that Z was not likely to enjoy the same level of family support and exposure to her indigenous cultural background, if she moved to live in Q.
Bearing in mind these two significant factors, which the father asserts have not changed since January 2005 and which were highly influential in the parties agreeing to the orders they did on that occasion, the father argues that the grandmother has little chance of succeeding in her application. Essentially it is his position that the fundamental aspects of Z’s care have been unchanged since Ms M’s death and there is no justification to change them now on the basis of any of the matters subsequently raised by the grandmother.
The parties’ competing applications first came before the court on 6 June 2006, on which occasion I determined to fix the matter for argument in respect of the application of the rule in Rice & Asplund[1] to the case. In Rice & Asplund Evatt CJ 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 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 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 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.”
[1] Rice & Asplund (1979) FLC 90-725
It is clear from authority[2] that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances to justify the re-opening of the issue of residence in respect of a child, which has earlier been determined by concluded proceedings, as a discrete or preliminary issue, prior to hearing any of the substantive applications.
[2] See D & Y (1995) FLC 92-581 at 81,764
These reasons for judgement are directed to resolving this preliminary issue and particularly whether at this stage it is likely to be in Z’s best interests for the grandmother’s application to be dismissed and so further litigation between the parties avoided. It being feared that the already poor relationship between Ms H and Mr W can only be worsened by such litigation and that this in turn can only have detrimental consequences for Z, which cannot be justified at this stage.
In order to resolve this issue it is necessary to examine the matters which brought the parties to the consent order of 5 January 2005.
Background
The father was born on 7 November 1982. The grandmother was born on 30 September 1962. The late Ms M (herein after referred to as “the mother”) was born on 27 February 1981. The father and mother met in D in 1999 and began to live together shortly afterwards. They were living together when Z was born. They separated in December of 2003. After the parties separated Z continued to live with the mother at premises situated at Unit 3/1 T C, G. The mother applied for a domestic violence restraining order against the father in December of 2003. The father apparently consented to the making of such an order.
Initially the domestic violence order provided that the father was not to contact the mother in any way. However the parties concerned subsequently agreed to vary the order so that they could communicate with and approach one another, although the father was restrained from assaulting or threatening the mother. Accordingly there was no formal impediment to the father visiting the mother and Z at the T C property. It seems he did visit the mother on many occasions prior to her death, usually at least once a day.
The mother died at the Emergency Department of the R D H on
6 March 2004. The Deputy Coroner of the N T investigated the death but determined not to hold a full inquest. A post-mortem examination was performed and the cause of death could not be determined. The mother was reported to have suddenly collapsed. No evidence of organic disease was found. There was no evidence of trauma. Other than a trace of methylamphetamine, no suspicious substances were found in her blood or urine.
The Coronial Findings were tendered to the court in the earlier proceedings between the parties. The police determined there were no suspicious circumstances surrounding the mother’s death. The findings examined the nature of the relationship between the mother and the father in the period prior to her death. The father was spoken to by police in regards to several incidents which occurred between him and the mother on 10 December 2003. The police did not charge him with any offence arising from the matters that occurred on that day but intended to charge him later on summons. However the necessary prosecution file was never completed.
On 18 January 2004 the father was arrested by police for making verbal threats to the mother and smashing property at T C. The mother subsequently indicated to police that she did not wish to proceed with any charges against him and none were laid. It seems that the parties continued to see one another.
On the evening of 5 March 2004 the parties went out separately in D. The father consumed a large amount of alcohol. The mother returned to her home at 4.30 am on 6 March 2004. The father walked past the mother’s unit at some time around 5.00 am and saw a light on. He went in and had some discussions with a Mr H, who was staying there. The mother and father apparently had some discussions about another man. Mr H describes this discussion as a “light argument”. He did not see any physical contact between the mother and the father.
Whilst the father was present in the T C unit, the mother collapsed. An ambulance was called at 5.43 am arriving at 5.46 am. The father attempted to rescuitate the mother but was unsuccessful. She was taken to hospital but pronounced dead at 6.37 am. The police commenced investigating the death shortly afterwards and both Mr W and Mr H were interviewed that morning.
The grandmother and her husband arrived in D on the evening of
6 March 2004 and viewed the mother’s body. They alerted police to what they believed was evidence of bruising on her neck and shoulders. No other person involved with the investigation of the death or in providing medical treatment to the mother observed this bruising. The Deputy Coroner considered that these indicia of assault were likely to be as a result of post-mortem changes and formally found there was no such bruising “despite the Hs’ firmly held belief” there was.
Due to Dr S, the pathologist who performed the original autopsy, being unable to determine a cause of death, the Deputy Coroner sought a second opinion from Dr C, the Chief Forensic Pathologist for W A.
Dr C provided the following opinion:
“In view of the history and absent demonstrable structural medical problems it appears likely that T has died of a sudden disturbance in the normal beating of the heart (arrhythmia). Deaths of this type are seen from time to time, particularly in young adults. The arrhythmia is thought to arise on the basis of an underlying abnormality of the electrical conducting system of the heart.
Amphetamines and caffeine are both stimulants to the heart, but the apparent absence of the amphetamine in the blood and the low level of the latter makes it unlikely that these agents have been significant factors in the death.
Accordingly, the likely mechanism of T’s death is an unexpected fatal cardiac arrhythmia, as may occur with the long Q-T syndrome. As indicated above, these arrhythmias may arise unexpectedly in people who have no preceding medical history, and may be fatal. In W A Coroner’s cases, with about 1500 post mortem examinations a year, we would see a sudden death of this type about once or twice a year. As the deaths are “functional” rather than “structural” there is usually no structural abnormality to be demonstrated at the time of the post mortem examination.”
These circumstances were known to the grandmother prior to her consenting to the orders of 20 January 2005. In her current application she places weight on two statutory declarations the mother purportedly made to police prior to her death. Neither statutory declaration provided to me has been actually executed and one is inexplicably dated 19 May 2004. The grandmother also points to the fact that the father acknowledged in earlier affidavit material that on two instances his relationship with the mother had “got out of control”. These incidents occurred on 7 December 2003 and 18 January 2004 respectively.[3] It is the grandmother’s position that the relationship between the father and the mother was one marked by domestic violence and Z was exposed to it.
[3] See Father’s affidavit filed 14 October 2004 at paragraphs 4-5
The grandmother’s view of the father was and remains essentially negative. She regards him as violent and anti-social. She has concerns that he has a serious addiction to marijuana. It is her position that these factors render him an inappropriate custodian for a child of tender years such as Z. She believes that these matters render him liable to be neglectful of Z’s health and safety.
In an affidavit filed by him on 14 October 2004, the father alluded to being charged by police with the offences of assault; disorderly behaviour; and criminal damage.[4] The incident giving rise to these charges occurred on 7 January 2004. In his affidavit the father indicated an intention to defend the charges. The charges had apparently been fixed for trial on 9 February 2005.
[4] Ibid at paragraph 7
It is not the function of these proceedings or of any subsequent final hearing to act as a critique or review of the coronial finding into the mother’s death. However given the overall circumstances of the matter it would not be surprising if the grandmother continues to have great difficulty in accepting the validity of those findings and to believe that the father is somehow implicated in the death of the mother. For obvious reasons, this is a factor which is likely to exacerbate tensions between the parties.
The grandmother first commenced proceedings in this court on
21 April 2004. She sought orders that Z live with her and be known as Z M rather than Z W. She alleged that the father was not Z’s biological father and sought orders for parentage testing to clarify this issue. At that stage she acknowledged that Z was in the care of the father. She was however highly critical of the father in his care of Z and asserted that he was often under the influence of marijuana.
The father responded to this application on 18 May 2004. He sought orders that Z should live with him and spend time with the grandmother as the parties agreed but once she had reached school age that Z should half of each school holiday with the grandmother. The father denied that he was in any way lax in his care of Z or that he used marijuana to any significant degree.
He indicated that he had been visited by officers from Family and Children’s Services (FACS) on 26 March 2004 in respect of complaints regarding his ability to care for Z. These complaints of neglect were not substantiated by FACS. For his part the father was also highly critical of the grandmother and asserted that she herself had a significant drug problem and criminal connections.
Overall it was his position that Z had suffered a significant trauma due to the death of her mother and it was not warranted to remove her from the environment with which she was familiar and her remaining parent and other family members with whom she shared a close relationship.
The parties’ competing applications came before the court on 1 June 2004, at which stage it was agreed that the issue of Z’s paternity should be resolved by appropriate scientific testing. In addition it was ordered that Z be separately represented in the proceedings and that an urgent family assessment should be commissioned, bearing in mind the serious allegations both Ms H and Mr W had made regarding the appropriateness of the other to care for Z.
On 25 June 2004, a DNA parentage testing procedure revealed that Mr W was Z’s father beyond any reasonable degree of doubt. Ms O, a D solicitor was appointed as Z’s representative in the proceedings. She commissioned Ms M, an experience psychologist to prepare a family assessment. This assessment was completed on 29 July 2004. It included a detailed assessment of the relationship between Ms H and Z but not between Mr W and Z, as Mr W failed to keep a later appointment with Ms M, although he did attend for the initial one arranged.
At the stage of her first report, Ms M was well aware that the grandmother was highly critical of the father and believed that the level of attachment between him and Z was low. Ms M regarded Z as a vulnerable child, as a result of the loss of her mother. She noted the concerns raised by the grandmother regarding the father’s dependency on marijuana. In her report Ms M provided the following assessment:
“Mrs H has a positive and nurturing relationship with Z and it is evident that Z feels secure in Mrs H’s care. Whilst I have no doubt that Mrs H is able to meet Z’s needs this is not a sufficient basis to disrupt this child’s relationship with her father, unless that relationship severely compromises her welfare. As this cannot be assessed at the present time, I would be loathe to recommend a change of residency on the basis that this could be quite traumatic for Z and may disrupt her adjustment to the loss of her mother. However I do believe that there are significant benefits to Z maintaining regular contact with Mrs H as this relationship is her primary connection with her mother’s family and to her having access to information about her mother that cannot be provided through any other source.
It is evident that the relationship between the parties is characterised by hostility that interferes with their ability to negotiate Z’s needs. I do not believe that either party has sufficient regard for the other and I have serious doubts that either would be capable of maintaining Z’s relationship with the other if either obtained residency. While Z is too young to be aware of the conflict between the parties, it is my opinion that as she gets older she is likely to be drawn into such conflict and will find herself in the unenviable position of having to choose between a relationship with her father and her grandmother. This is not a healthy situation for the child and may in fact result in her rejecting her relationship with either of the parties in favour of the other.
Mrs H has indicated that if she obtains the residency of Z she will return to Brisbane to live. She advocates that she will ensure that Z maintains contact with her family in D through visitations and by regular telephone contact. Given the animosity between the parties I am of the view that their ability to facilitate contact at a distance will be severely compromised and that such contact is unlikely to occur at a level that would maintain a close relationship between Z’s extended family in D.
Z is a mixed race child of Aboriginal, Australian, Scottish and Chinese heritage. Her physical appearance is that of an Aboriginal child and as such it is this heritage by which she is most likely to be identified. While I have no doubt that Mrs H will endeavour to promote Z’s Aboriginal identity to the best of her ability and has already made effort to contact a number of indigenous schools and Early Childhood facilities in Q, this does not recognise that Z’s affiliation is to the M and K clans and to her extended family in D who have a responsibility in promoting her identity as a person of Aboriginal descent.”[5]
[5] See Family Report dated 29 July 2004 at paragraph 8.2 – 8.4
Accordingly Ms M recommended that Z should continue to live with the father and have regular contact with the grandmother. She also recognised that there should be a further assessment of the relationship between the father and Z and in particular the quality of the care giving environment which he could provide her. On 17 August 2004 the parties and Ms O each consented to orders being made to this effect on an interim basis. The matter was fixed for final hearing and it was ordered that the family assessment be updated as recommended by Ms M.
The parties each filed additional affidavit material in anticipation of there being a contested final hearing between them regarding the issue of where and with whom of them Z was going to live in future. Ultimately the final hearing was scheduled to take place on 20 & 21 January 2005. In the grandmother’s case she filed the following affidavit:
i) An affidavit of herself filed on 6 January 2005.
No doubt if the matter had proceeded to hearing on 20 January, the grandmother would have sought to rely on a number of affidavits which had been filed on her behalf for use at the interim stage of proceedings.
In the father’s case he filed the following affidavits:
i)Two affidavits of himself filed on 14 October 2004 and 17 January 2005 respectively;
ii)An affidavit of a medical practitioner, Dr H filed 14 October 2004;
iii)An affidavit of S S, the director of the Child Care Centre then attended by Z filed 22 October 2004;
iv)An affidavit of S M the father’s half sister filed on 17 January 2005;
v)An affidavit of K M G, the father’s partner filed on 14 October 2004.
The matters raised by the grandmother in her affidavit of 6 January 2005 included the following:
·The father was immature and irresponsible in his care of Z;
·He did not feed her appropriate or nutritious food;
·He was neglectful of issues to do with her health and failed to provide her with the routine necessary for a child of Z’s age, particularly when she should go to bed;
·That the circumstances surrounding the death of the mother were suspicious and that the father himself had an extensive criminal record;
·That the father continued to smoke large quantities of marijuana;
·That the father put his own needs to socialise and stay out late at night before Z’s needs;
·That in April of 2004 Z had broken her front tooth and the father had failed to provide appropriate dental treatment for her;
·That the father was rude and discourteous to her (the grandmother).
The father deposed that in July of 2004, he had commenced a relationship with Ms G. She has a child from an earlier relationship,
K born 27 September 2001. The father, Ms G, Z and K had apparently been living as a family since mid 2004. The father refuted any suggestion that his care of Z was in any way lacking.
The father’s position, unsurprisingly, was supported by Ms G; Ms M and Ms S. Dr H viewed Z as “bright, active, happy, well dressed and clean” from his two observations of her. He noted a good rapport between Z and the father. He was not unduly concerned that Z had contracted Giardia (a concern of the grandmother) and noted that the illness itself was not indicative of neglect or omission.
Originally the final hearing of the matter had been scheduled for 16 & 17 December 2004. These dates were vacated because Ms M was not able to complete the family report by this date. This was not due to any failing on her part but rather because the father declined to attend the necessary appointment with Ms M because “he did not feel comfortable with her” apparently because he felt she lacked a degree of rapport with him. As a result his then legal advisers applied to have another person complete the family report. I declined this application and directed that the father should make both himself and Z available to Ms M so that the necessary report could be completed.
Ms M completed the second family report on 15 January 2005. It included observations made by her of Z interacting with the father, which occurred whilst Ms M visited the father’s home. Z was observed to have “a close, nurturing relationship with Mr W whom she refers to as Daddy”.[6] At this stage Ms M made the following recommendations:
[6] See Family Report dated 15 January 2005 at page 3
“Z is a three-year-old child who has endured the loss of her primary attachment figure, Ms T M, when she was aged 2 years
3 months. From this time Z’s father, Mr S W assumed the role of primary caregiver for Z. At the time of her mother’s death Z would have suffered a significant grief reaction and psychological stress that would have continued for some time. Her loss would have been somewhat eased by the continued presence of her father, with whom it would she had significant contact since birth. With the loss of her mother Z would have transferred her attachment to Mr W who provided the majority of care to her. From observations it is my opinion that Z enjoys a close, secure relationship with Mr W and relies upon him to meet her needs. Mr W is attuned to Z and responds to her in an age appropriate manner. There was no evidence to suggest that Z is at risk in her father’s care or that her best interests are not being met.
Mr W is prepared to support Z to maintain a relationship with her maternal grandmother and despite the differences between himself and Mrs H he appears to be respectful of this relationship. Unfortunately the same cannot be said for Mrs H who considers Mr W an unsuitable parent and who has little positive to say about the nature of Z’s relationship with her father. I do not believe that Mrs H would positively support Z’s relationship with Mr W or that she would take the steps necessary to ensure that this relationship was maintained in the long term. In my opinion, Mrs H has many unresolved issues with respect to the death of Ms M and in particular her perceptions of Mr W’s role in this. Given this it would be almost impossible for her to develop a positive attitude towards Mr W or to ensure that Z developed a positive view of her father.
Mrs H has indicated that it is her intention to return to Q if Z resided in her care. Aside from Mrs H and her husband, Z has no extended family in Q with whom she has a relationship. The majority of her extended family, with whom she has regular contact, reside in the N T. These family members offer support to Z and Mr W and have had a relationship with Z since infancy. It is highly improbable that Z would enjoy the same level of family contact and support if she were to relocate to Q. In addition, her Aboriginal cultural connection is with the N T and not Q, and hence even if she were to attend an Aboriginal school in Q, she would not be exposed to her own culture.
Both parties have made serious allegations about the substance abuse problems of the other party. Mr W has acknowledged that he uses marijuana recreationally while Mrs H denies any history of drug usage. From my contact with Mr W and Mrs H I did not observe either to be under the influence of illicit substances or that this interfered with their ability to care for Z.
It is my opinion that Z’s psychological welfare will be severely compromised if she is removed from the care of Mr W. She is doing well in her father’s care and is able to enjoy a relationship with her maternal grandmother and extended family members…”[7]
[7] Ibid at pages 3-4
This was the background to the consent orders, which were made on
20 January 2005. On that date, I had anticipated that there would be a final hearing of the parties’ competing applications. There was ample time to accommodate such a hearing. However, the parties, without any previous direction from me, apparently voluntarily negotiated the orders which were subsequently made. I am unable to discern why Ms H consented to the orders, which are obviously not in keeping with the tenor of the material she had filed up to that point or her position now.
The orders which were made on 20 January 2005 are annexed to these reasons for judgement at schedule one. I had no reservations whatsoever about those orders, which I was content to make. Having reviewed all the material filed up to that point, particularly the reports of Ms M, I was satisfied at that time that the orders were the ones best calculated to serve Z’s interests.
I acknowledge that a final hearing, which is concluded by way of a consent order, is different in quality to one which is concluded after a contested hearing at which evidence is taken and findings of fact are made. At a fundamental emotional level, the latter type of proceeding allows an accuser to put his or her accusations to the person he or she accusers of some omission or fault and see that person’s response to it. In this way evidence is put to the test through the process of cross-examination. A final hearing is after all another term for “trial”.
A further consequence of the process may be that such a public and rigorous examination of issues may clear the air and so lead to a sense of acceptance on the part of the persons concerned of a particular state of affairs, which in turn leads to a willingness to move on and put past issues aside. In the modern jargon, this is often referred to as a sense of “closure”. Strong emotions may be vented which are publicly and officially acknowledged. The effect may be cathartic.
Clearly in this particular case, the conclusion of the proceedings on
20 January 2005 did not provide Ms H with such a sense of closure and leave her with a sense of acceptance of the result. As I say I do not know why she chose to compromise the proceedings. No doubt she was told by her legal representatives and by Ms O that, as the evidence then stood, she had little prospect of success. I suspect she found the process deeply unsatisfactory.
Events since 20 January 2005
The father and Ms G continue to live together. They now have a child, K W W who was born on 13 March 2006. Z and K are attending the
B P S and have done so for the past two years.
The grandmother left D in February 2005. She currently lives in I in Q. Her husband P H is an interstate truck driver, who travels regularly between Q and the N T.
On 30 September 2005, the grandmother commenced contravention proceedings against the father, alleging that he had breached order 13(e) of the orders made on 20 January 2005. The breach was alleged to have occurred the previous day to that on which the application was made. The order concerned was intended to enable contact between the grandmother and Z to take place in addition to the specified fixed contact periods provided by order 13(a)-(d) and referred to contact “at any other times as agreed”, provided notice was given.
The grandmother’s complaint was that she had sought additional contact and provided notice but the father had not provided Z to her as requested. The difficulty created by the order concerned is that the contact enabled by it is predicated on the basis that the parties agree about it. In this case the parties obviously did not agree about the additional contact requested. After these issues were canvassed between the parties, the grandmother elected to withdraw her application and the father elected not to pursue any application for costs. Again I suspect that the grandmother found this process deeply unsatisfactory.
It seems that, regardless of the difficulties the grandmother experienced in September of 2005, Z has spent regular periods of time with her during school holidays as provided for by the orders of 20 January 2005. The grandmother complains that she has experienced difficulties in having regular telephone contact with Z.
The Current Applications
The grandmother commenced the current round of proceedings on
10 April 2006, less than eighteen months after the finalisation of the initial proceedings. The grandmother seeks, on both an interim and final basis, that Z live with her in I in Q. She proposes enrolling Z at the A K and P, which has an emphasis on providing for the needs of children with an Aboriginal background. If she is successful in her application, she proposes that Z spends time with the father during school holidays and that the parties share equally the cost of Z travelling between Q and the N T.
As an alternative, if she is unsuccessful in her application that Z live predominantly with her, she seeks an order that Z spend time with her during the Easter school holiday each year in addition to the contact provided by the orders of 20 January 2005. She also wishes to vary the earlier order so that the parties would share the travel costs involved in Z moving between D and B, rather than she bearing all the costs as the orders currently provide. Finally she seeks a number of orders that would enable her to be provided with information concerning Z’s education; health; and requiring both her and the father to advise each other in respect of change of address or other contact details.
In support of her application the grandmother relies on the following documents:
i)Her application filed 10 April 2006;
ii)An affidavit of herself filed 10 April 2006;
iii)An affidavit of her husband, P N H filed 10 April 2006;
iv)An affidavit of her son D J A filed 24 May 2006.
The father responded to this application on 31 May 2006. He seeks orders that the grandmother’s application be dismissed and, in future, she be restrained from bringing any further applications without the court’s leave.
In support of his application the father relies on the following documents:
i)His response filed 31 May 2006;
ii)Two affidavits of himself filed on 31 May 2006 and 18 July 2006 respectively;
iii)An affidavit of K M G filed 3 July 2006.[8]
[8] Ms G is referred to in various affidavits as “G” “G” and “G”. I have chosen to refer to her as Ms G to be consistent. If this is incorrect, I convey my apologises. No offence is intended.
Essentially it is the father’s position that Z is happy and well settled in his care and the grandmother’s application is vexatious and it can serve no useful purpose for the court to entertain it at this stage.
The grandmother’s affidavit is a lengthy document and traverses many of the issues she previously raised in her earlier application. Her view of the father remains a negative one and she is highly critical of his ability to provide an appropriate level of care for Z. Her concerns span many years, in spite of her earlier ostensible acquiescence to Z continuing to live with the father as evidenced by her consent to the final orders of 20 January 2005. She repeats many, if not all, of the criticisms she made of the father in the earlier proceedings.
When asked to identify the matters which are significant to her client’s application and which have arisen since the orders of 20 January 2005 were made, Ms S, counsel for the grandmother, identified the following areas:
·There is evidence to indicate that Z has been exposed to family violence between Mr W and Ms G.
·New evidence has come to light about Mr W’s criminal history, which has implications for Z’s well being.
·There is evidence to indicate that Mr W is not adequately providing for Z’s dental needs.
·There is evidence to indicate that the father has not been supportive of the grandmother communicating with Z by telephone as envisioned by the orders of 20 January 2005.
I turn now to consider the evidence in respect of each of these matters, some of which was revealed as a result of a subpoena the grandmother directed to the Commissioner of Police for the N T on 22 May 2006. The terms of the subpoena were extremely wide. The Commissioner was directed to produce all documents “including but not limited to” relating to the following held in respect of Mr W:
a)Any audio tapes and/or video tapes;
b)Police referrals to any hospitals (including Suspect Child Abuse and Neglect Teams – SCAN), specialists including but not limited to Social Workers, Psychologists, Psychiatrists, Therapists, Counsellors, Educational Specialists and the reports, records and assessments obtained and/or provided;
c)Criminal histories including details of convictions, penalties, warrants and sentences;
d)All files, documents and paper writings including details of any/all charges (if any) pending or outstanding;
e)CRISP System Crime Reports and QP9 – Court Briefs;
f)Diary notes, police notes and signed copies of official police notebooks;
g)All statements and documents including but not limited to signed statements by the accused, the complaint, the informant, professional and other witnesses, police witnesses;
h)Traffic history;
i)Domestic violence history.
Neither the Commissioner nor the legal representative of the father objected to the terms of this subpoena. However I have little difficulty in reaching the conclusion that the subpoena was an exercise in fishing, designed to enable the grandmother to discover something damaging about the father, which she could then allege against him. It confirms my view that the grandmother currently views the father through a prism of hostility. Clearly her view of the father provides fertile ground for her suspicions about him to grow. Obviously the issue of such a subpoena is a tactic calculated to broaden rather than lessen the adversarial nature of proceedings such as these.
(a) The Allegations of Family Violence
It is the grandmother’s position that the relationship between the father and the mother was one characterised by family violence, a fact which is confirmed by the father himself[9], the statutory declarations made by the mother prior to her death[10] and the findings of the Deputy Coroner. Clearly these are not new issues and Ms S submits that although they remained of concern to her client, Ms H wished to put her concerns in the past, after she agreed to the orders of 20 January 2005.
[9] See father’s affidavit of evidence filed 14 October 2004
[10] See Annexure B to the grandmother’s affidavit filed 10 April 2006
It is now her position that a number of new matters, which have subsequently come to light, when added to her previous concerns are such to indicate that the father is essentially an inherently violent person, with a propensity to indulge in family violence, particularly against his partners. Many of these concerns relate to alleged disclosures made by Z herself.
In April of 2005 Z is alleged to have said to the grandmother “Daddy makes K cry…he bites K and pushes her on the floor”. These matters are said to make Z feel scared.[11] On 3 May 2005, Z is alleged to have reported that “K is crying…cos my Dad hurt her and she fell to the floor…” The child’s response to this report is that she is scared of her father and wants to go to the grandmother’s home.[12] At some unspecified date after 15 July 2005, Z is alleged to have disclosed that “my Dad pushed K on the floor and she is crying”.[13] A similar complaint is made by Z on 25 August 2005.[14]
[11] Ibid at paragraph 206
[12] Ibid at paragraph 207
[13] Ibid at paragraph 228
[14] Ibid at paragraph 237
The grandmother does not directly depose in her affidavit whether of not she referred her concerns to FACS. However, during the course of her submissions, Ms S confirmed that the grandmother had made some notifications to FACS. What was the result of these notifications is unknown to me. The grandmother has not filed a formal notice of child abuse in the current proceedings.
Of more concern to the grandmother is something that has come to her attention from the documents subpoenaed from the N T Police. This relates to an incident which occurred on 12 May 2006 at 03.45 when police attended at Mr W and Ms G’s home in relation to what is described as “domestic disturbance” between them. The police report reads in part as follows:
“Both provided different stories but it appears W has returned home intoxicated from a night on the town and an argument has ensued. It has turned to push and shove both ways. Nil injuries to either person. Property was also damaged during the incident. Both parties blaming each other for the damage.”
The police report confirms that Z, K and K were home during this incident. Ms G, K and K were assisted by police to travel to Ms G’s brother’s home. Z apparently stayed with Mr W. No one was arrested. What was described as “DVO options” were explained to both parties. The report also indicates that a “FACS report was submitted” which related to “neglect emotional”. The alleged perpetrators are said to be “both mother and father”.
The grandmother does not advise what was the outcome of this purported notifications to FACS. I presume she does not know. The matter is not alluded to in her affidavit material. It has not been the subject of any formal notification by her to the court regarding a risk of child abuse to Z. The court was made aware of the incident only when the documents which related to it were formally tendered on 18 July 2006. I imagine that the grandmother herself only became aware of it when the documents concerned were discovered, which was after leave was granted on 6 June 2006 for the parties to inspect them.
Both the father and Ms G allude to this incident in their affidavit material. As is perhaps to be expected both downplay the significance of it.[15] From Ms G’s perspective the incident was an isolated one and out of character for the father. She refers to the father accidentally breaking her jewellery box earlier in the day, which became a source of friction between them exacerbated by the father’s decision to go out socialising and drinking to the early hours of the morning. Both the father and Ms G allude to the stresses in their family, because of the current proceedings, as being a factor leading to the conflict between them. From the father’s perspective, both he and Ms G “acted impulsively on the night”.
[15] See father’s affidavit filed 18 July 2006 at paragraph 8 and Ms G’s affidavit filed 3 July 2006 at paragraph 8
At this stage of the proceedings, I am not in a position to resolve definitively what occurred on this particular occasion. Nor is the grandmother. She was not there. She has only read about the incident. Apparently the only direct witnesses to it, who are able to give evidence in formal court proceedings, are the father and Ms G themselves and the police officers who later attended the scene.
Again, as is to be expected, both the father and Ms G deny that there is anything untoward in their relationship, which both describe as a happy one. Apart from the evidence provided by the police incident report of 12 May 2006 and the evidence of the purported telephone conversations between her and Z, the grandmother is not in a position to provide any other evidence in respect of the nature of the relationship between the father and Ms G and its potentially corrosive consequences for Z. In a formal sense, she has not attempted to invoke FACS’ involvement in these proceedings.
(b) Mr W’s Criminal History
As a result of the subpoena directed to the Commissioner of the N T Police, the grandmother has discovered that the father was convicted of assault occasioning bodily harm and criminal damage on 8 February 2005. He was placed on a $1,000.00 good behaviour bond and ordered to pay restitution of $632.94.
The offences themselves occurred on 7 January 2004. There is no suggestion that either the mother or Z were involved or exposed to the offences. As has already been indicated the father alluded to this incident in his affidavit material filed in the earlier proceedings and stated his intention to defend the proceedings.
The police records indicate that, in a record of interview he gave to the investigating police, Mr W said that he was acting in self defence. The assault seems to have involved Mr W striking a person to the left side of his head with a beer bottle. The bottle did not smash and the person (a young man) was described as being “dazed”. He later experienced a black eye and facial swelling. The explanation given by Mr W for his actions was that “I thought the guy was going to hit me”. The criminal damage charge relates to the throwing of the bottle onto a car.
The incident was clearly a serious one as reflected in the convictions recorded and the good behaviour bond imposed. However the incident has not been subjected to any detailed scrutiny in these proceedings, in particular the father has not been able to be questioned about it or been given an opportunity to provide his version of the event. Other than being evidence of antisocial behaviour on the father’s part, there is nothing to tie the matter to his parenting of Z. The incident occurred at a time when the child was living with the mother. The grandmother was aware of the matter in general terms when she agreed to the consent orders in January of 2005 and by implication it did not concern her at that time.
The father’s criminal history is otherwise unremarkable. In 2000 he was placed into a juvenile diversionary scheme for some minor offences. He has no other convictions. From the grandmother’s perspective the incident of January 2004 is significant because it adds weight to her assertion that the father is violent and antisocial. She fears he may be an inappropriate role model for Z. This has been her consistent position throughout – at least in her affidavit material – but not in her acquiescence to the consent order of 20 January 2005.
In my view I must be careful in regards to the relevance of this incident to the current proceedings. I am concerned that the grandmother has an understandable propensity to assume a sinister connotation in regards to the father’s behaviour wherever possible. This is a tendency heightened by the adversarial nature of these proceedings. I also bear in mind the warning that courts such as this one should be discouraging of parties “engaging in general attacks or smear campaigns that are unrelated to the children’s welfare”[16] Just because an incident reflects badly on a person, it does not necessarily follow that the matter is helpful in determining what arrangement is likely to be in a child’s best interests.
[16] see In the Marriage of JG & BG (1994) 18 Fam LR 255 at 259 per Chisholm J
(c) The issue of Z’s dental care
In the earlier proceedings the grandmother alluded to her concerns that the father was not providing proper dental care for Z. In general terms it relates to her allegations that the father is not a “responsible” parent.[17] In particular, in April of 2004, the grandmother described Z as having broken one of her front teeth and this tooth becoming discoloured.
[17] See grandmother’s affidavit of evidence filed 6 January 2005 at paragraphs 24; 35; 56 &57.
More recently, in March of 2006 the grandmother took Z to a dentist in I, where she was found to have three teeth requiring simple restoration due to dental decay. In addition, her two front teeth were found to be grossly decayed and most probably to require extraction or root canal treatment.[18] Although she does not explicitly state it, it appears to be the grandmother’s position that the father has never taken Z to the dentist. She is critical of the father because, when she is with her, Z does not appear to know how to use a toothbrush properly.
[18] See exhibit D to grandmother affidavit of evidence filed 10 April 2006.
The father acknowledges that Z’s teeth are in “bad shape” as she has “chipped” one of her front teeth and has a cavity in another. It is his position however that he has been advised that as they are “baby teeth” they will be exfoliated in due course and as such expensive dental therapy is not warranted. He has provided a letter from a dental therapist at the B P S D C to this effect.
At this stage of the proceedings, I am not in a position to resolve whether Z is in need of urgent dental treatment or whether, more importantly, the state of her teeth is symptomatic of abuse or neglect.
I do however note that there is nothing to indicate that the issue has been raised with the T based child welfare authorities or has been an issue so far as either the B P S or the N T Education Department are concerned.
(d) Telephone contact
The grandmother is entitled to telephone contact with Z on each Sunday and Wednesday. It is her position that she has had constant difficulty in getting through to Z since March of 2005. She complains that she frequently leaves messages on the father’s mobile phone, which do not receive a response. These complaints have not been subject to a contravention application. Further it does not seem to be the grandmother’s position, apart from the incident arising from the aborted contravention application of September 20005, that she has ever been deprived of having direct physical contact with Z during school holidays. However the clear tenor of both parties’ affidavit material is that they do not have a trusting or co-operative relationship with one another and all communication between them are fraught with difficulties.
The father acknowledges that there have been problems with the grandmother’s telephone contact with Z. He ascribes these difficulties to the fact that, for financial reasons, he does not have access to a landline telephone service but is reliant on a mobile phone. He deposes at times the battery on this phone has failed and at others he has had insufficient credit to enable Z to telephone back. Again I am not in a position to resolve this issue definitively at this stage of the proceedings. The father denies that he is anything other than encouraging of Z to have a close and loving relationship with her grandmother.
The legal principles to be applied
In this, as in all matters to do with children, the best interests of the child concerned are the court’s paramount consideration in making any order to do with the child.[19] The law pertaining to the making of parenting orders, concerning children, is set out in Part VII of the Family Law Act 1975. This part of the Act has recently been subject to major amendment.
[19] See Family Law Act 1975 at section 60CA
Some of the objects of this part of the Act include ensuring that children are protected from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; to ensure that children receive adequate and proper parenting; and that parents fulfil their duties to care for their children.[20]
[20] Ibid at section 60B (1) (b) (c) & (d). The Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 indicates that section 60B (1) (b) has been inserted, in part, to cover the possible psychological harm which may be caused to a child witnessing abuse against another member of that child’s family. No doubt this is why the expression “exposed to” is used.
Some of the relevant principles underlaying these objects include that children have a right to spend time on a regular basis and communicate regularly with people who are significant to them, particularly grandparents and that children have a right to enjoy their culture.[21] In the case of Aboriginal children, they have a right to maintain a connection with Aboriginal culture and to be able “to develop a positive appreciation of that culture”.[22]
[21] Ibid at section 60B (2) (b) & (e)
[22] Ibid at section 60B (3)
How a court determines what is in a child’s best interests is by a consideration of the matters contained in section 60CC of the Act. There are two primary considerations.[23] Firstly the court must consider the benefit of the child having a meaningful relationship with both of his or her parents. Secondly the court must consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The two primary considerations outlined above have equal application and one is not to be considered superior to the other. However I take it that the importance to be given to each of these considerations will depend on the particular circumstances of any given case.
[23] Ibid at section 60CC (2)
Thereafter, pursuant to section 60CC (3) the court is required to consider a number of “additional considerations”. These additional considerations include the following:
a) Any views expressed by the child concerned and any factors such as the child’s maturity or level of understanding that is relevant in the circumstances;
b) The nature of the relationship of the child concerned with the child’s parents and with other persons (including grandparents);
c) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;
d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or from any other person (including grandparents) with whom he or she has been living;
e)The practical difficulty and expense of the child having contact with people who are interested in the children concerned;
f) The capacity of parents or any persons (including grandparents) to provide for the needs of the child, including emotional and intellectual needs;
g) The child’s maturity, sex, lifestyle and background;
h) If the child is Aboriginal, the child’s right to enjoy his or her Aboriginal culture and the impact of any proposed order on that right;
i)The attitude to the child and the responsibilities of parenthood as displayed by the child’s parents;
j) Any family violence involving the child or a member of the child’s family;
k) Any applicable family violence orders and whether such an order is a final order or was contested;
l) The orders which are the least likely to lead to the institution of further proceedings;
m) Any other fact or circumstance.
The explanatory memorandum, published in conjunction with the passing of the amending legislation, indicates that the intention of separating the factors provided by section 60CC into primary and additional tiers “is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act.” However the memorandum concedes that there may be some circumstances where what are referred to as “secondary” considerations may outweigh the primary considerations.
The definition of “family violence” has been changed by the amending legislation. Pursuant to the provisions of section 4 of the Act it is defined as:
“conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”
This definition now includes an objective level. Fear or apprehension of violence must be reasonable. There is also no doubt that both the father and Ms G are to be considered members of Z’s family pursuant to the provisions of section 4(1AB) & (AC) of the Act.
The amendments to the Act also require courts to take prompt action in relation to cases where family violence is alleged. In particular section 60K reads as follows:
“(1) This section applies if:
(a) an application is made to a court for a Part VII order in relation to a child; and
(b) a document is filed in the court, on or after the commencement of this section, in relation to the proceedings for the order; and
(c) the document alleges, as a consideration that is relevant to whether the court should grant or refuse the application, that:
(i)there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii)there has been family violence by one of the parties to the proceedings; or
(iv)there is a risk of family violence by one of the parties to the proceedings; and
(d) the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.
(2) The court must:
(a) consider what interim or procedural orders (if any) should be made:
(i)to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii)to protect the child or any of the parties to the proceedings; and
(b) make such orders of that kind as the court considers appropriate; and
(c) deal with the issues raised by the allegation as expeditiously as possible.
(2A) The court must take the action required by paragraphs (2)(a) and (b):
(a) as soon as practicable after the document is filed; and
(b) if it is appropriate having regard to the circumstances of the case - within 8 weeks after the document is filed.
(3)Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain reports from State and Territory agencies in relation to the allegations.
(4)Without limiting paragraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.
(5)A failure to comply with a provision of this section in relation to an application does not affect the validity of any order made in the proceedings in relation to the application.”
The grandmother has not filed any document, within the meaning of section 60K(1)(d), indicating that Z is at risk of family violence. However it is incumbent in the position which she has adopted in these proceedings and from her desire to re-visit the orders of 20 January 2005 that she has concerns in this regard. It seems to be the clear import of section 60K that the court must consider issues of family violence, once they have been raised in proceedings and this consideration must occur expeditiously.
It is now necessary to consider the inter-relationship between the provisions of section 60K and the principles first outlined by the Full Court in Rice & Asplund. Then consider what the impact is, if any, of the principles contained in Division 12A of the Act, which relate to the conduct by the court of “child-related proceedings”, on both these matters.
First the rule in Rice & Asplund. As has already been indicated, in all matters concerning parenting orders, the best interests of the child concerned is the paramount consideration in the making of orders. As the circumstances of both parents and children (and indeed others who are involved in the care of children) change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.
However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited. For that reason, a court will not readily reopen a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.
The principle that underlies the rule is that, generally speaking, it is not in the interest of the child to have repeated applications before the court concerning arrangements for the care of children. It is desirable that there be an end to litigation concerning children. The thrust of the rule is to encourage the parties to have a sense of finality about orders once they have been made and place a barrier in the way of repeated and unnecessary application to vary orders recently made.
It is obviously in the best interests of a child for there to be an end to the litigation concerning him or her and certainly for unnecessary litigation to be avoided. The rule in Rice & Asplund is an application of the paramountcy principle as set out in section 60CA of the Family Law Act 1975.
Collier J discussed the necessary criteria for the application of the rule in Rice & Asplund to the circumstances of each particular case in King & Finneran.[24] In particular, his honour considered how the significance of any change in circumstances, since orders had been made should be assessed. His honour said as follows:
“To apply the test in Rice & Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.”
[24] King & Finneran (2001) FLC 93-079
Collier J referred to D & Y [25], where the Full Court of the Family Court indicated that a court should be extremely loathe to reopen a case involving an issue of residence previously determined about two years before, except on strong grounds. In this context His Honour said as follows:
[25] D & Y (1995) FLC 92-581
“The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstances must be such that if taken into account there is a real likelihood that a change may follow
…
what is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
…
the purpose of the rule is to protect the children from exposure to further unnecessary litigation. [26]
[26] King & Finneran (supra) at page 88,368 - 9
Concurrent with changes to the Family Law Act dealing with the objects and principles of the Act, the Legislature has made directions as to how courts, such as this one are to conduct “child-related proceedings”. These amendments are contained in Division 12A of Part VII of the Act.
Pursuant to section 69ZN the court is required to give effect to a number of principles whilst exercising jurisdiction in respect of proceedings concerning children. These principles are as follows:
a)The court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings;
b)The court is to actively direct, control and manage the conduct of proceedings;
c)Proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect;
d)Proceedings are to be conducted in a way the will promote cooperative and child-focused parenting;
e)Proceedings are to be conducted without undue delay, formality and legalism.
Pursuant to section 69ZQ, the court is provided with a number of duties in order to enable it to give effect to these principles. It may:
a)Decide which issues require full hearing and which may be dismissed summarily;
b)Decide the order in which issues are determined or what steps should be taken to determine issues;
c)In deciding whether or not a particular step is taken, consider the cost implications of such a step;
d)Use appropriate technology;
e)Use family dispute resolution or family counselling where appropriate;
f)Deal with as many aspects of the case as possible on a single occasion and if appropriate without the physical attendance of the parties.
As a corollary to these duties, the court is provided with a number of powers pursuant to the provisions of section 69ZR. At any time in child related proceedings, it may:
a)Make a finding of fact;
b)Determine a matter arising out of proceedings;
c)Make an order in relation to an issue arising out of proceedings.
These various principles and duties have been collectively described as being procedures designed to make proceedings in regards to children “less adversarial”. Again, like the rule in Rice & Asplund, they are directed to enhancing the best interests of children. In enunciating the principles, the legislature recognises that unduly protracted litigation regarding children is usually not helpful to the children who are the subject of such litigation and certainly does not encourage those who are involved in their care to have a cooperative or collaborative approach towards their parenting.
Litigation regarding the parenting of children is liable to be expensive in both financial and emotional terms and, at its end, the parties to it are likely to remain in a close familial relationship, unlike the parties to other litigation such as an action about a contract or a tort. In the former case the parties must patch up their relationship, if they can, at the end of the proceedings; in the latter case the parties may choose never to see one another again and so their future relationship is of no moment. The principles outlined in Division 12A recognise that it is in the best interests of children that those involved in their care avoid, as far as possible, the deleterious consequences of litigation, which is rarely a constructive process, as it is often focussed on finding fault and emphasising the failings of the other party concerned.
The principles seem to have the following objects: courts are directed to discourage unnecessary litigation; closely manage that litigation which cannot be avoided; focus the minds of the parties concerned on the potential harm which may be occasioned to children by such litigation through the perpetuation of parental conflict; and consider the fiscal implications, both private and public, in the conduct of such litigation. This list is not intended to be an exhaustive one. At the same time, the court is cautioned against overlooking the need to conduct proceedings in a way which will maximise the protection of children from harm to them arising from neglect, abuse and family violence.
The principles seem to be directed to allow the court to fetter, to some degree, the freedom provided by a classic adversarial system of parties being able to investigate every issue which may possibly be of some interest to them. In the vernacular, the abrogation of the freedom “to chase every rabbit down every hole”, in the hope, often vain, that something which may advances a party’s cause will turn up through such an exercise. At the same time, the court is reminded that its essential raison d’etre is the welfare of children and such considerations should not be sacrificed on the altars of pragmatism.
In some cases, these ends may come into conflict. This may be particularly so in cases where one party has a particular difficulty in accepting the validity of a long existing state of affairs or has a propensity “to cry wolf” on the slightest of pretexts.
In the present case, the father asks the court, to summarily dismiss the grandmother’s application for Z to live with her, through the application of the rule in Rice & Asplund. He asserts that no significant issue has arisen since the making of the consent orders of 20 January 2005. He points to the potentially adverse consequences for Z and the undoubted costs of such proceedings, if the grandmother is able to pursue her application at this stage. He urges the court to take a pragmatic approach in limiting the litigation between the parties. He categorises the grandmother as obsessive, malicious and unrealistic.
For reasons already outlined, it seems highly improbable that the grandmother will accept the validity of any such decision to dismiss any part of her application. For her part she has raised issues which she asserts go to the heart of Z’s well being and wishes to re-litigate issues which she has previously raised. Her counsel asserts that these issues can only be properly examined in the Family Court where they will take a number of days to determine. She seeks that a further family report be prepared and the Z again be independently represented. Undoubtedly the financial costs of such litigation will be high and the proceedings may be lengthy. However it is her view that the centrality of Z’s best interests justify the expense involved. She portrays the father as lax, immature and violent.
At this stage of the proceedings, necessarily, the court has not been in a position to examine the issues raised by the grandmother, particularly in regards to Z’s dental health and exposure to family violence, in any detail. There are perils both in the court too readily discounting these matters – as the father seeks – or exhaustively examining them in conjunction with matters the grandmother has previously raised – as she seeks. In balancing those risks the court must consider the application of the various principles outlined in the paragraphs above. Chiefly, on the one hand, the desirability of unnecessary litigation being avoided and, on the other, the need to protect a child from potential harm by being exposed to neglect or family violence. The principles may not always be easy to reconcile at the stage of summary determination.
As Justice Warnick has recently remarked:
“The path along which Federal Magistrates must pick their way in proceedings under the Family Law Act seems in any event often in treacherous shadow as a consequence of attempts to meet that Court’s legislatively declared objectives of streamline and informality. The existence of these goals seems to (understandably) pressure the court to finalisation, even though the state of preparation and presentation of cases falls well short of the optimum.
These remarks are not criticism of either the legislative intent or the efforts of the Federal Magistrates. They are recognition of the unwieldy burden of two legitimate but disparate ends – the delivery of careful, error free, well reasoned and well explained justice, in cheap, quick and informal fashion.”[27]
[27] Boyd and Boyd Unreported decision delivered 22 June 2006 NA5 of 2006 per Warnick J
Finally it should be pointed out that the amendments to the Family Law Act brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006 are not of themselves sufficient to constitute changed circumstances for the purpose of the application of the rule in Rice & Asplund.
Discussion
The aim of the principle, as set out in Rice & Asplund, is to protect children from unnecessary litigation. Clearly the question of whether or not litigation is unnecessary must turn on the seriousness or importance of the issue or issues which are being raised in the fresh or subsequent litigation. In Justice Collier’s phrase, the court becoming advised of the fresh circumstance “would be left in no doubt that it would be necessary to relitigate the parenting issue in dispute between the parties”.
The court, at this stage, need not be persuaded that automatically there must be a change to the pre-existing arrangement as a result of this new circumstance but it must be satisfied that there is “a real likelihood that [such] a change may follow.” Necessarily, it seems to me that this exercise involves some examination by the court of the likelihood of an application to change a pre-existing parenting order being successful. This also seems to me to be in line with the majority of the principles contained in section 69ZN and the matters which flow from them, principally from sections 69ZQ(1)(a) (d) and 69ZR(1).
Z is an Aboriginal child. She has lived predominantly with her father, who shares her Aboriginal cultural background since March of 2004. Prior to that time, which is also prior to the death of her mother, who up until that time had been her primary carer, the father had been an active participant in Z’s life. Undoubtedly the relationship between the two is a significant one. Because of the loss of her mother, Z is likely to be a vulnerable child and any change in arrangements for her care must be closely considered. It is also likely to be the case that Z is part of a family unit which consists not only of herself and her father but also of Ms G, K and her recent half sibling K.
In all these circumstances, the change sought by the grandmother in her application as to where Z should live is a significant one indeed. Ms H does not share Z and the father’s indigenous background. She proposes Z living far away from where she has lived for all of her life up to this stage and far away from other of her relatives who share her background. Given the principles contained in section 60B(2)(e) of the Act, this is likely to be significant. In addition the court appointed expert, as recently as January of 2005, considered that Z’s psychological welfare would be “seriously compromised” if she was removed from her father’s care. Ostensibly at least, the grandmother sought not to challenge this finding. As a result of these matters it does not seem to me that she has a strong prospect of success in her application to change where Z is to live in future.
It is not sufficient for the grandmother to raise issues which she has previously raised in earlier proceedings and indicate that she wishes the court to re-examine these matters afresh. It does not matter that the orders of 20 January 2005 were arrived at consensually without any independent court examination of the evidence advanced by the parties at the time and without actual findings of fact being made. The absence of these matters does not affect their overall validity. The orders of 20 January 2005 are taken to have been properly reached and to have reflected Z’s best interests at the time.
However the new matters raised by the grandmother are serious ones which cannot be easily dismissed. The legislative framework provided by sections 60B, 60CC(2)(b) and (3)(j) when coupled with the provisions of section 60K require the court to take prompt action in regards to all allegations of family abuse and to regard issues of family violence as being central to a child’s essential well being.
The establishment of family violence or indeed that Z’s dental health has been neglected are not necessarily factors, which of themselves, are likely to amount to fresh circumstances sufficient to change the existing residence order in this case, given the other factors which obviously favour its maintenance. The test to be applied is one of a likelihood of change not merely that new circumstances have arisen. However the court, at the same time, is under a mandatory duty to investigate allegations of exposure to family violence once raised. These are matters that are not easy to reconcile.
By its nature, the issue of family violence is a complex one. As Chisholm J pointed out in JG & BG[28], family violence is not a homogeneous concept. Violence can take many forms – it may be impulsive and out of character, occurring in response to a stressful situation or, at the other end of the scale, it may represent a systematic and deliberate course of conduct, designed to intimidate and humiliate another family member. In JG & BG Chisholm J said as follows:
“Violence associated with a pattern of dominance, for example, may be particularly serious. For children to grow up in a climate of a potentially violent and dominating relationship between their parents seems to me to be an unacceptable model of family relationships, and would be very likely to create a situation of stress and fear that may well be damaging over a period. It is quite wrong, in my opinion, to assume that violence can be relevant only if it is directed at the children or takes place in their presence. It is equally wrong to assume that violent behaviour will necessarily be repeated, or to assume too readily that it will harm children, or to give it excessive importance; it is of course only one factor relevant to the assessment of what the child’s welfare requires, and it will be more important in some cases than in others.”
[28] JG & BG 18 Fam LR 255 at 261
In this case, the grandmother’s concerns about the father’s alleged violence do not arise from her own personal observations of him. She relies on the indirect reports of Z herself and what she has learned from the somewhat opportunistic inspection of police documents. She is unlikely to be well disposed towards the father and, as such, is hardly likely to take a dispassionate view of what she has learnt indirectly about him. As I have already observed, the difficult and tragic circumstances of the parties provide fertile ground in which suspicions may take root. In all these circumstances, the father’s contention that the grandmother’s concerns lack objectivity, is not one that is easily dismissed.
In addition, Ms G, the object of the alleged violence, refutes the existence of such violence on any perennial basis. There is no evidence to indicate that Z has actually suffered harm as a result of it. Much of the grandmother’s case is based on conjecture. The same is true, in my view, of the child’s dental health.
Although the grandmother raises the issue of family violence, she has not followed the procedures outlined in section 60K. No doubt this is because the section is a recent one and the grandmother’s application straddles the amending legislation to the Family Law Act and those advising her may not have considered the provision. In addition, although she is aware that police officers made a notification to FACS about the father’s care of Z in May of this year, she herself has made no attempt to involve the Department in the current proceedings.
The Explanatory Memorandum to the new legislation indicates as follows:
“This provision [section 60K(1)] recognises the need for any necessary protection issues to be addressed in a timely manner. It also allows the court to ensure it will have the appropriate information about the allegations.
…subsection 60K(2) provides that the court must consider what interim or procedural orders (if any) should be made to enable appropriate evidence about the allegations to be obtained as expeditiously as possible and to protect the child or any of the parties to the proceedings…”[29]
[29] See Explanatory Memorandum to Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraphs 117-119
In addition, pursuant to section 60K(3) the court is directed to consider whether it should make an order pursuant to section 69ZW requiring a Sate or Territory agency to provide it with a report in respect of any notification of child abuse received by it. It is also open to the court to order a family report or appoint an independent children’s lawyer, depending on the circumstances involved.
As a result of the provisions of section 60K, I have reached the conclusion that it would be premature to dismiss the grandmother’s application for Z to live with her at this stage because the court does not have the necessary evidence before it to assess the gravity of her concerns regarding the exposure of the child to family violence or indeed her claim that Z has been subject to neglect.
However, in my view, it would be equally premature to either fix the grandmother’s application for the residence of Z for final hearing or to transfer the application to the Family Court for that to occur, at some later stage. I do not think that such an outcome would be in Z’s best interests or in keeping with the principles contained in Division 12A of the Family Law Act. In addition, for the reasons already provided, I continue to have grave reservations about the utility of this application. Essentially I do not know what purpose it would achieve in terms of Z’s best interests.
The court’s duty pursuant to the provisions of Division 12A is clear. It is to manage actively proceedings regarding children. It is the court’s responsibility to determine what issues will be heard and the order in which they are heard. I must also consider the financial implications of such proceedings. In my view to fix blithely the grandmother’s application without some significant degree of scrutiny would not achieve these objects, particularly given her consent to Z living with the father in the fairly recent past. Mr W is legally aided. Ms H is not. The proceedings have the potential to cost both Ms H and the public purse a considerable amount of money and perhaps achieve very little apart from a deepening of the hostility between the parties, which would be an outcome unlikely to serve Z’s best interests.
Apart from the significant issue of where Z is to live in future, there remain a number of other issues outstanding. These include the following:
·Do arrangements for the grandmother to telephone Z need to be changed so that the calls occur without difficulty;
·Should the existing arrangements whereby Z spends time with the grandmother during school holidays be altered so that Z spends the Easter school holiday with the grandmother in addition to the other periods specified;
·Should the arrangements for the payment of the costs of Z’s travel between D and Brisbane be changed so that the parties share equally the costs involved.
The grandmother is highly critical of the father in respect of her ability to be able to telephone Z in accordance with the earlier orders. The father concedes there have been some past difficulties in this regard. The grandmother does not advance any particular reasons as to why the other arrangements should be changed, other than, obviously she would want to be able to spend more time with Z and, in respect of the cost of travel, it represents a significant financial burden for her and she, by implication, believes it would be fairer if the father made some contribution towards those costs. Apart from these factors she does not seem to point to any significant change of circumstances.
However these are the sorts of issues which are likely to lead to a growing sense of resentment between the parties and so make a difficult situation worse, which in turn will have implications for Z and her sense of security and stability. They are also issues which the parties themselves may be able to resolve between themselves with some assistance. In themselves, they are not complicated issues, although the question of the costs of travel may remain intractable as neither party is in a strong financial position. At this stage, I do not think it would be in Z’s best interests for the grandmother’s application in respect of these subsidiary issues to be dismissed, as the father currently seeks.
Conclusions
In conclusion, I have come to the view that it is not likely to be in Z’s best interests to allow the grandmother to re-open the issue of where she is to live in future, given that this issue was determined as recently as January of 2005. However before coming definitively to this conclusion it is necessary for the court to pursue the inquiries which are directed by the provisions of section 60K of the Act. In addition there are a number of issues regarding the efficacy of the orders of 20 January 2006, which may require further investigation by the court and which militate against the dismissal of the grandmother’s application at this stage.
Accordingly, I propose making an order pursuant to section 69ZW requiring the Department to provide to the court any documents and evidence concerning notifications made to it regarding Z. I will also invite the Department to intervene in the proceedings if they believe it appropriate. To this end I will direct that the Department be provided with a copy of these reasons for judgment.
Finally I will refer the parties to Family Dispute Resolution to see if the issues between them regarding holiday time, telephone communication and travel expenses can be narrowed and resolved. Similarly, I will direct the Manager of Child Dispute Services at D be provided with a copy of this judgment.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C W
Date: 27 July 2006
Annexure A
Orders made 20 January 2005
BY CONSENT IT IS ORDERED:
The child Z JAYDE MACKENDRY born 18 December 2001reside with the father and he be responsible for making decisions regarding the child’s care welfare and development.
WHILST THE MATERNAL GRANDMOTHER RESIDES IN D
That the maternal grandmother have contact as follows:
Until the child commences preschool
a) in each four week period, on alternate weekends
i)on the first weekend from 5pm Friday until 5pm Monday, and
ii)on the second weekend from 5pm Thursday until 5pm Monday
b) each Wednesday from 8am until 5pm
c) other contact as may be agreed between the parties from time to time.
After the child commences preschool
d) in each four week period, on alternate weekends
i)on the first weekend from 5pm Friday until 5pm Monday, and
ii)on the second weekend from 5pm Thursday until 5pm Monday
e) other contact as may be agreed between the parties from time to time.
That the maternal grandmother have the following holiday contact during which time all other contact in Order 2 herein be suspended:-
1) For the first half of the first semester school holiday in 2005 (from 5pm Friday 1 April until 12 midday 6 April in 2005) and in each alternate year thereafter (change of date in other years)
2) For the first half of the mid year school holidays in 2005 and in each alternate year thereafter (commencing 5pm Friday 24 June 2005 until 5pm Friday 8 July)
3) For the second half of the second semester school holidays in 2005 and in each alternate year thereafter (from noon on 5 October until 8am Monday 10 October)
4) For the first half of the Christmas school holidays in 2005 and in each alternate year thereafter (commencing noon 18 December until 5pm 8 January 2006)
That should Easter 2005 fall on a non contact weekend, the grandmother is to have contact to the child on Easter Sunday from 2pm until 4pm on Easter Monday.
That the grandmother have contact with the child from 11am until 5pm on Mother’s Day should that day not fall on the contact weekend.
That the grandmother have contact if requested, on 27 February and 6 March from 3pm until 5pm in 2005 and in other years providing the maternal grandmother is in D at the time and for up to four hours on the child’s birthday if that day should fall during a no contact period.
That should Easter 2005 fall on the grandmother’s contact weekend, the child is to be returned to the father at 2pm on Easter Sunday.
That should Father’s Day fall on the grandmother’s contact weekend the child is to return to the father at 10am on the Sunday.
That the child is to spend from 4pm Christmas Eve until 4pm Christmas Day with the father should Christmas Day fall within the grandmother’s contact periods and in each alternate year thereafter.
That the child is to spend from 4pm Christmas Day until 4pm Boxing Day with the grandmother if Christmas Day does not fall within the grandmother’s contact period and in each alternate year thereafter.
That should the grandmother wish to take the child away from D during contact as exercised pursuant to Order 3 b or 3 d, she provide to the father 28 days notice of her intention to travel together with an itinerary, and contact details.
That the father have reasonable telephone contact with the child should Order 11 be exercised.
SHOULD THE MATERNAL GRANDMOTHER RESIDE INTERSTATE
That the maternal grandmother have contact with the child interstate as follows:
(a)for three weeks during each mid year school holiday to commence on the first day of the holidays and to be returned 21 days later.
(b)For three weeks in the Christmas school holidays in 2005 to commence on the 22nd day of the holidays in each alternate year thereafter.
(c)For three weeks in the Christmas school holidays in 2006 commencing on 17 December and in each alternate year thereafter.
(d)By telephone at 6.30pm CST each Sunday and Wednesday with the grandmother to initiate the call.
(e)At any other time as agreed between the parties either interstate or in D, with the grandmother to provide the father with 7 days notice of her intention to travel to D at any time.
That for the purposes of exercising the contact as set out in Order 13(a) (b) (c) and (e) herein, the grandmother is to collect the child from and return the child to the D Airport until such time as the child can travel unaccompanied. Contact costs are to be borne by the grandmother.
That the father keep the grandmother informed at all times of his residential address and telephone number and notify her of any change within 4 days of the change.
That the father direct and authorise the principal of any school the child should attend from time to time, to forward school reports and applications for school photos to the grandmother.
That the father contact the grandmother in the event of any emergency involving the child.
That all applications be otherwise dismissed.
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