HADEN & NESTOR
[2020] FCCA 638
•24 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HADEN & NESTOR | [2020] FCCA 638 |
| Catchwords: FAMILY LAW – Final hearing – Rice & Asplund threshold issue – intractable parental conflict – whether children at risk if exposed to further litigation – likelihood of orders being varied in a significant way. |
| Legislation: Family Law Act 1975 (Cth), s.65DAC |
| Cases cited: Marsden & Winch [2009] FamCAFC 152 |
| Applicant: | MR HADEN |
| Respondent: | MS NESTOR |
| File Number: | SYC 2985 of 2012 |
| Judgment of: | Judge M Neville |
| Hearing date: | 5 March 2020 |
| Date of Last Submission: | 5 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sansom SC |
| Solicitors for the Applicant: | Abrams Turner Whelan Family Lawyers |
| Counsel for the Respondent: | Mr Cummings SC |
| Solicitors for the Respondent: | Barkus Doolan |
ORDERS
The mother’s application be dismissed.
Any application for costs is to be made within 28 days.
The matter is, otherwise, removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Haden & Nestor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2985 of 2012
| MR HADEN |
Applicant
And
| MS NESTOR |
Respondent
REASONS FOR JUDGMENT
Ms Nestor (the mother) and Mr Haden (the father) are the parents of B, presently aged 12 years and C, presently aged 10 years.
On 30 May 2014, they entered into final parenting orders, by consent.
The mother now seeks to vary those parenting orders. The father resists the variation sought and invokes the principle in Rice & Asplund. The matter was listed on 5 March 2020 for hearing on that threshold issue.
Background
The parents were married in 2006. B was born in 2007 and C, in 2009.
The parents separated on a final basis in August 2010 (on the mother’s case) or in January 2011 (on the father’s case).
On 23 May 2012, the mother commenced proceedings in the Family Court of Australia. In the course of those proceedings, a family report was prepared by Ms D on 29 August 2013. The children attended upon Ms D as part of her assessment process.
The final hearing of the application was listed to commence on 3 June 2014 however following mediation, the matter resolved by the making of final orders, by consent on 30 May 2014 (“the 2014 orders”).
Relevantly, the 2014 orders provided:
a)The parties have equal shared parental responsibility for the children.
b)The children to live with the father 5 nights each fortnight and otherwise to live with the mother.
c)The children spend time with each parent during school holiday periods and on special occasions.
The provisions of the 2014 orders dealing with school holiday periods were expressed as follows:
11. That the children live with the father as follows:
…
11.5 From the commencement of the Term 1 school holiday period in 2015 for the entirety of the holiday periods that commence at the conclusion of terms 1, 2 and 3 each year (including any pupil free days) with the exception of the first 7 nights of each said school holiday period;
11.6 For the second half of each Christmas school holiday period commencing in 2015 and each alternate year thereafter and for the first half of each said school holiday period in 2016 and each alternate year thereafter and if the calculation of one half would meant he children were to spend half a day with the father, then that half of the school holiday period shall conclude at 4pm on that half day;
…
15. For the purposes of these Orders, school holidays shall be the holiday dates published by the New South Wales Department of Education and training for the relevant period in each year and shall include any pupil free days.
On 27 March 2015, the father filed an Initiating Application and an Application in a case seeking a variation of the 2014 orders so as to clarify the school holiday periods. That application was determined by Rees J who delivered reasons and made orders on 16 August 2016 as follows:
(1)That Order 15 made 30 May 2014 be vacated and in lieu thereof the following order be made:
(2)That for the purpose of these orders, school holiday shall commence on the morning of the day immediately following the last day of the school term and shall conclude on the evening of the day immediately before the children attend school in the next term.
On 1 November 2017, the father filed an Initiating Application seeking orders on the discrete issue of the high school B was to attend. By Response filed 17 November 2017, the mother sought the application be dismissed and, inter alia, sought orders that B be assessed by a child psychologist.
I pause to note that in mid-2017, concerns had emerged in relation to the children’s behaviour at school and by late 2017, the mother considered that B should be taken to see a paediatrician. The parties were unable to communicate effectively on that issue.
The parents and B attended a Child Inclusive Conference on 4 April 2018).
On 9 May 2018, the father filed an application in a case seeking orders in relation to medical treatment, medication, paediatric assessment of B and attendance at family therapy. Orders were made, by consent, on 13 August 2018 to the following effect:
a)That each party be restrained from:
i)taking either child to any health care professional without the other party’s prior written consent, other than a GP from time to time or otherwise in the event of an emergency; and
ii)administering any medication for ADHD to either child without the other party’s prior written consent.
b)A paediatric assessment be carried out in relation to each child by a nominated paediatrician, with a report to issue confirming any diagnosis made and associated orders relating to:
i)authorisation of each parent to make appointments and requiring each parent to keep the other fully informed of the details for appointments;
ii)payment for the costs of assessment and/or treatment in relation to each child;
iii)authorising the paediatrician to discuss matters relevant to B’s treatment with each parent and otherwise requesting that the paediatrician ensure that each parent be included on correspondence in relation to each child.
c)That, pursuant to s 10H of the Family Law Act, the parties attend upon Mr E for family therapy:
i)with the father to arrange the therapy at first instance and communicate to the mother the first available appointment in 2018; and
ii)with the parties to comply with Mr E’s recommendations as to therapy.
On 17 April 2019, the father filed an Amended Initiating Application. In addition to the orders seeking B attend high school at F School, he sought orders regarding school holiday time, medical issues, extra-curricular activities and family therapy.
On 23 August 2019, Judge Boyle conducted a hearing on the discrete issue of B’s high school. Her Honour delivered reasons and made orders on 17 September 2019 that B be enrolled in G School to commence in 2020 or such other school as may be agreed between the parties in writing.
On 10 October 2019, the mother filed an Amended Response setting out the orders she seeks that are the subject of the present controversy.
The matter was listed on 12 December 2019 for call over. On the same date, the father filed a Further Amended Initiating Application abandoning his application for parenting orders and otherwise raising the principle in Rice & Asplund as a threshold issue and seeking that the parties be substituted for each other such that the mother become the applicant for parenting orders and the father become the respondent.
When the matter was called over, the mother was substituted as the applicant for parenting orders and the father was substituted as the respondent. The matter was listed on 5 March 2020 for hearing on the Rice & Asplund issue. The parties reserved their positions as to whether cross-examination was required or whether the matter would proceed by submissions only.
When the Rice & Asplund hearing commenced, each party agreed that the matter would proceed by way of submissions only.
On 16 March 2020, the mother filed an application in a case seeking to stay the delivery of judgment and to re-open her case to adduce further evidence and otherwise expand the relief sought to include orders in relation to C being permitted to sit any selective high school tests that either C or the mother deemed appropriate. This issue was resolved by consent orders prior to the determination of the Rice & Asplund issue.
The competing applications
Orders sought by the parties
By her Amended Response filed 10 October 2019, the mother seeks parenting orders as follows:
(1)The father and the mother have equal shared parental responsibility for the children save as for as provided in orders 2 and 3.
(2)That the mother has sole parental responsibility in relation to the children’s medical decisions.
(3)That in the event a decision is required as to a long term medical and/or health related issue and the parties are unable to come to an agreement as to the decision, then the mother shall have the ability to make the decision, provided that:
(3.1) Within 48 hours following the medical appointment, the mother notifies the father in writing of the medical/health issue which requires a decision and notifies the father of the possible options, as well as the decision that the mother is proposing to make;
(3.2) The mother seeks the father’s written response in relation thereto;
(3.3) The father provides a reply within a further 7 days;
(3.4) The mother shall consider, by reference to the best interest of the child/ren, any such response from the father prior to making any such decision; and
(3.5)The mother advises the father in writing of the mother’s ultimate decision not later than 48 hours after the decision has been made.
(3.6) Both parents will comply with the instructions of the healthcare practitioner, including administering any medication or other therapies or reporting of side effects.
(4)That all previous orders in relation to school holidays are discharged and the following shall apply:
(4.1) The children shall live equally with the mother and the father during the term 1, 2, 3 and 4 school holiday periods.
(4.2) In even numbered years, the children shall live with the father for the first half of each holiday period and with the mother for the second half;
(4.3) In odd numbered years, the children shall live with the mother for the first half of each holiday period and with the father for the second half;
(4.4) Each school holiday period shall commence as from the conclusion of the last day of the school term and shall conclude at the commencement of school on the first day of term;
(4.5) The “mid-point” shall be at midday on that day falling at the middle of the period defined in order 4.4, and in the event of an odd number of nights such period, the midpoint shall be determined by the first half being one day longer than the second half of such period.
(4.6) Any pupil free days are to be included in the school holiday period.
(4.7) The parent with whom the children spend the first half of the holidays will be responsible for delivering the children to the other parent at the “midpoint”.
(5)In relation to the children’s sporting and extra-curricular activities:
(5.1) The children shall each determine one sport and one creative extra-curricular activity each school term, which may be a continuation of an existing activity;
(5.2) That the mother and father shall each ensure the children’s attendance at the children’s additional activities;
(5.3) The mother and father are otherwise permitted to enrol the children in any other sporting or extra-curricular activity and not require the other parent’s time or support otherwise, although it may be voluntarily given.
(6)That the children be permitted to freely communicate with each of their parents whilst in the other parent’s care and for the purpose of this order:
(6.1) The mother shall provide each child with a mobile phone that can be connected to Wifi;
(6.2) Each parent shall ensure that the children have access ot the mobile phone and a charger;
(6.3) Each parent shall ensure that the children can freely access the mobile phone.
The father seeks that the mother’s Amended Response filed 10 October 2019 be dismissed.
Material relied upon
Senior counsel for each party had identified the material relied upon in their respective case outline documents prepared for the hearing.
In addition to the material identified in his case outline document, the father tendered the exhibit to his affidavit sworn 25 February 2020 and correspondence between the parties’ lawyers and the parties themselves.
In addition to the material identified in her case outline document, the mother tendered a bundle of e-mails exchanged between the parties directly.
The Law
There was no controversy between the parties as to the applicable legal principles. They can be stated as follows.
In Rice & Asplund (1979) FLC 90-725, Evatt CJ said:
(The Court) 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 circumstances 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.
This has become known as the rule or the principle in Rice & Asplund.
The rationale for the rule is to give expression to the principle that there must be an end to litigation, particularly in relation to children: see McEnearney & McEnearney[1]; SPS & PLS[2].
[1] (1980) FLC 90-866
[2] [2008] FamCAFC 16
Having regard to the principle, and the rationale for it, a departure from the principle requires cogent arguments as to why earlier decisions of this court are wrong and should not be followed: Poisat & Poisat[3].
[3] [2014] FamCAFC 128 (21 July 2014)
The rule in Rice & Asplund is a manifestation of the best interests principle: SPS & PLS[4]; Marsden & Winch[5].
[4] Supra
[5] [2009] FamCAFC 152 (at [47])
The rule may be considered at a preliminary stage or after a final hearing: Marsden & Winch; Poisat.
Whether it is determined at a preliminary stage or after a hearing, as the Full Court observed in Poisat:
The underlying intention is the same and is grounded centrally in the best interests consideration…: the rule’s application recognises the benefit of the finality of litigation but also recognises that considerations acutely relevant to a child’s best interests can change, including, for example, by reference to the child’s age and level of maturity.[6]
[6] Supra (at [41])
Where the principle is determined at a preliminary stage, an application should not be dismissed for some technical reason. Rather, if an application is dismissed, it is because assuming the evidence of the applicant is accepted, insufficient change of circumstance has been demonstrated such as to justify embarking on a hearing. The underlying conclusion will be or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue: Marsden & Winch.
Where the issue is raised as a threshold issue and determined without a full hearing, the court may find it more difficult to determine the issue where it may not be possible to resolve all (or indeed any) disputed facts: Miller & Harrington[7].
[7] (2008) FLC 93-383.
In determining the application, the court must look at:
a)The past circumstances, including the reason for the decision and the evidence upon which it was based;
b)Whether there is a likelihood of orders being varied in a significant way as a result of a new hearing;
c)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child caused by the litigation itself. Thus, small changes may not have sufficient benefit to compensate for the disruption caused by significant litigation.
Marsden & Winch[8]
[8] Supra (at [48]).
The parties’ positions
The mother contends that the 2014 orders, varied as they were by Rees J, are no longer operating in the children’s best interests. She contends that the landscape, 6 years on, is very different in the following respects:
a)B and C are now 6 years older. B is now in high school and C has now commenced school. The children have matured and developed.
b)The father now lives with his partner, Ms H and they have 2 children, who are siblings to B and C.
She contends that the passage of time has revealed issues which were not in the knowledge or the contemplation of the parties in 2014, namely:
a)The parental conflict evident in 2014 continues;
b)Parental communication has deteriorated;
c)There is now a question as to whether B has ADHD.
In addition to these matters, she submits that there have been 2 further proceedings that have been determined without a Rice & Asplund issue, namely the proceedings before Rees J in 2016 clarifying the school holiday provisions; and the proceedings before Judge Boyle in 2019 to determine the issue of B’s schooling.
The mother contends that the court should have regard to the father’s conduct of the proceedings in that he commenced these proceedings on 1 November 2017. The relief he sought was expanded by the Amended Initiating Application he filed on 17 April 2019, to seek orders in relation to C’s schooling, injunctive relief including in relation to sporting activities and orders further varying the provisions relating to school holiday time.
The mother contends that to dismiss her application for parenting orders will be to leave the children to struggle on against the reality of the inability of the parents to deal with and resolve their parenting disputes.
For his part, the father contends that notwithstanding the ongoing parental conflict, the parents have been able to implement the parenting arrangements under the 2014 orders. He contends that there is no prospect of the 2014 orders being varied in a significant way, and that to continue the litigation would draw the children further into the parenting dispute which is not in their best interests.
The past circumstances
It is important to commence by observing that the 2014 orders were made by consent. There was no hearing on the merits and the court did not make any findings of fact on disputed issues.
This does not mean that there is no evidence as to the circumstances in existence at the time those orders were made.
It is not controversial that at the time of the making of the orders, B was aged 6½ years. He was in year 1, at J School. C was aged 4 years. She attended long day care at Suburb K for 2 days each week, she spent one day each week with her grandmother, one day with the mother and one day with the father.
As noted earlier, during the course of those proceedings, Ms D prepared a family report on 29 August 2013. Ms D observed the following matters about the parenting dynamic:
a)During interview, each parent expressed concern about the tone and manner of the other parent’s communication with them.[9]
b)At the time of the interviews, each parent reported that they were in the process of completing L Families Keeping Kids in Mind post separation program.[10]
c)The mother described the co-parenting relationship as “difficult” and “toxic”. She described communication as “very very bad” with “little productive dialogue”.[11]
d)The mother commented that the father tends not to reply to her emails or text messages or will only respond to the issues he considers relevant.[12]
e)The mother reportedly did not anticipate that the nature of the parental relationship or their ability to engage in “productive discussion” would ever improve.[13]
f)The mother was concerned about how practical an order for shared parental responsibility would be and that in reality, it will mean ongoing conflict and, potentially, further litigation.[14]
g)The father was concerned that the mother was exaggerating communication difficulties as a part of a legal strategy designed to gain advantage in the proceedings.[15]
h)The father was “optimistic” about the co-parenting relationship, however, he considered the mother could be inflexible around varying parenting arrangements and would dismiss his requests to change arrangements without giving them reasonable consideration.[16]
i)The father stated a preference that the mother email him only once each week, as he considered the timing and tone of her emails to be deliberately provocative and the volume of her emails to be intrusive, unnecessary and inappropriate.[17]
j)The father was reportedly concerned about the mother’s capacity to promote a positive image of him to the children and that she was attempting to turn the children away from him by talking about him negatively and/or discussing adult/parenting issues with the children.[18]
[9] Family report, 23/08/13: [15].
[10] Family report, 23/08/13: [18].
[11] Family report, 23/08/13: [21] – [22].
[12] Family report, 23/08/13: [22].
[13] Family report, 23/08/13: [23]
[14] Family report, 23/08/13: [32].
[15] Family report, 23/08/13: [33].
[16] Family report, 23/08/13: [34].
[17] Family report, 23/08/13: [36].
[18] Family report, 23/08/13:[38].
Ms D reported the following matters in relation to the children:
a)Neither parent raised any concern about C’s health, behaviour or overall development.[19]
[19] Family report, 23/08/13: [44].
b)Both parents reported that B (then in Kindergarten) was settling in to school, but that he was experiencing some challenges in relation to his behaviour in social situations, with his peers and his ability to engage in classroom learning. The parents had differing views as to the degree and source of such problems. These concerns were echoed by his classroom teacher who Ms D interviewed in the course of preparing her report.[20]
[20] Family report, 23/08/13: [46], [51].
c)Neither B or C gave any indication that they understood why they or their parents were at court.[21]
[21] Family report, 23/08/13: [49].
d)Ms D considered that there were some indications that B in particular had an awareness of the parental conflict and the problems that his parents experience in talking directly to one another. She considered changeovers and his parents being in close proximity to each other would appear to, at times, leave B feeling worried or anxious.[22]
[22] Family report, 23/08/13: [50].
e)B’s classroom teacher reported[23]:
i)He appeared “keen” to attend school.
ii)He was clever and capable and was advanced in reading.
iii)He struggled to maintain eye contact.
iv)In relation to group activities, he tended to watch from the sidelines rather than joining in.
v)He was very inhibited in relation to interacting with or even wanting to interact with his peers, and that he more often than not appeared to prefer being by himself.
vi)Whilst he had, on a couple of occasions hit another student in the playground, it was not necessary unusual for his age and was not a pattern of behaviour she was overly worried about.
vii)B can be easily emotionally overwhelmed – a matter she had raised with each of the parents.
viii)B’s academic progress was not being impeded by his social difficulties, but it would be prudent for the parents (and the Court) to consider professional assistance to help B develop the confidence and skills that would give him the best possible chance of reaching his full potential.
[23] Family report, 23/08/13: [51].
Ms D expressed concern as to the viability of equal shared parental responsibility whilst communication and co-operation between the parents was as unsatisfactory as it had been. She considered, however, that the children would likely benefit from the involvement of both of their parents in decision making about education, extracurricular activities and health. She considered that notwithstanding the communication problems, that there was nothing to suggest that the children’s best interests would be served by one parent holding sole parental responsibility.[24]
[24] Family report, 23/08.13: [64].
Having regard to the above matters as set out in Ms D’s report, I consider that at the time the 2014 orders were made, the co-parenting relationship could be described, at best, as difficult. Communication was, apparently, poor. Each parent considered that there were issues with the tone and frequency of the other parent’s communication. The parents were, apparently, communicating primarily through email on a once weekly basis.
I further consider that B was aware of and was impacted by the difficult co-parenting relationship, although it is not possible to identify the nature and extent of that impact.
Insofar as B had issues in relation to social interaction and learning in a classroom environment, these apparently started to emerge when he commenced in Kindergarten. It is not possible to determine the cause of those issues, nor the extent to which the parental separation and ongoing conflict impacted upon the emergence of those issues – if at all.
It is clear, however, that at the time of Ms D’s report, both his classroom teacher and Ms D considered he required professional assistance. Their respective views had been communicated to his parents.
At the time the 2014 were made, the parties had had the benefit of Ms D’s report for some months. After attending a mediation, it appears that Ms D’s recommendations were picked up by the parents and are largely reflected in the consent orders that were made.
Given that each party was legally represented at the time the 2014 orders were made, I infer that at that time:
a)Each parent received advice as to the nature and effect of the orders.
b)Each parent considered that they could comply with the obligations created by the orders and the consequences that may follow if the orders were to be contravened.
c)Each parent was satisfied that the parenting arrangements formalised by the orders were in each of B’s and C’s best interests.
I consider that the above matters give the best indication of the circumstances that were in place at the time that the consent orders were made in 2014.
What are the changed circumstances
Looking then at the events and occurrences since the orders were made, it appears that the following matters represent the significant changes identified by the mother in the life of the children and the family:
a)The children’s ages, general development and educational progression;
b)The father having re-partnered;
c)Continuation of the parental conflict and the deterioration of parental communication;
d)Investigation of the children’s medical needs.
Turning then, to each.
The children’s ages, general development and education
Each of the children is now 6 years older than they were at the time of the 2014 orders.
B is now aged 12 years. He has progressed through his primary school education and is now in high school. The parenting dispute about his high school was resolved by Judge Boyle who made orders that he commence at G School in 2020.
C was aged 4 years at the time the 2014 orders were made. She was attending long day care and being cared for by family members. She is now aged 10½ years and has made the transition from day-care to school.
Clearly, the children are older and have progressed developmentally in the intervening 6 year period.
In December 2018, each of the children underwent assessment by a multi-disciplinary team at M Paediatrics. B’s strengths were reported to have been that he is an empathic child with very high intellectual skills and having above grade level academic abilities. C’s strengths were reported to have been that she is a social and engaging child, with extremely high intellectual skills and above grade level academic skills.
During that assessment, each of the children was described in very positive terms by their parents and staff at their respective schools. Notwithstanding some issues for B in relation to his capacity for concentration and hyperactivity or impulsivity, he appeared to be meeting his physical and developmental milestones. Similarly, notwithstanding that C experiences some issues in relation to anxiety and sleep, she appeared to be meeting her physical and developmental milestones.
It appears, however, that growing up over the past 6 years in the shadow of an ongoing parenting dispute has caused some impact on each child’s emotional wellbeing with each child considered to have demonstrated some anxiety related to ongoing parent acrimony.
Insofar as either child may have an awareness of the litigation that has been on foot between the parents, the evidence does not disclose whether or not C is aware of the court proceedings that the parents have engaged in prior to this point.
The situation is different for B. During the course of the Child Inclusive Conference on 4 April 2018 family consultant Ms N made the following observation about B:
B appeared to be quite aware of the current parenting dispute about his future schooling and appeared to be somewhat caught in the middle about what his wishes should be.
There is a certain sadness from this observation in that B was considered to be struggling to identify what his wishes should be rather than feeling free to explore and develop his own thoughts and feelings about his future school arrangements.
Two years have passed since B attended the Child Inclusive Conference. Now aged 12 years, he is on the threshold of adolescence. If it has not already occurred, it is reasonable to expect that he will soon start to have stronger and more independent views about how he spends his time and what communication he has with each of his parents when he is not with them. As he enters adolescence and grows through his teenage years, he will start to individuate from his parents and have a greater say in the decisions that affect him.
C, aged 10½ years is not quite at the same stage, however, she is not far behind B. In approximately 18 months’ time, she too will be entering into the next phase of her life and she too will start to have stronger and more independent views about how she spends her time and what communication she has with each of her parents when not with them.
The father has re-partnered
It is not controversial that the father has gone on to form a new relationship. He and his new partner, Ms H, have 2 children – O aged 3 years and P aged 9 months. The composition of the father’s household has clearly changed, and B and C have gone on to develop new relationships with Ms H, O and P as members of their paternal family.
The continuation of the parental conflict & deterioration of parental communication
Senior counsel for the mother commenced submissions by observing that where parents enter into consent orders, one would hope that this would lead to a reduction of conflict over time. This is an apt observation. Regrettably, it has not occurred in the present case.
The history of litigation between the parents has been outlined earlier in these reasons. Since the making of the 2014 orders, the parents have approached the court on a number of occasions for assistance in interpreting and re-interpreting the orders and to resolve disputes between them on discrete issues.
The parental conflict identified in Ms D’s family report in 2013 has not abated. Many of Ms D’s comments made 7 years ago describing the conflict remain apposite today.
The mother’s contention is that the implementation of the 2014 orders is a process that is fraught with difficulty. In her evidence, she includes email communication and solicitors’ letters that have passed between her and the father going back as far as 2013, but concentrated throughout the period 2017 to the present time. I anticipate that the material tendered by her in this regard represents but a small portion of the correspondence that has passed between the parents over the years. In submissions, Senior Counsel for the mother described some of the communications as unpleasant.
She gives evidence that the father will not take any calls from her by telephone and that he diverts her calls to voicemail. She gives evidence that he will only read emails from her once per week on a Friday.
This was described in submissions as being a “recipe for parenting disaster”, a clear example of which arose after the decision of Judge Boyle was handed down in relation to B’s high school arrangements on 17 September 2019.
The evidence reveals that on that date, the mother – apprehending that the father may appeal the decision – emailed the father to suggest that the parties inform B that a decision was pending, that the parents were still discussing the issue and whichever school was chosen, it was jointly supported and a great option for B.[25] The father (through his solicitor) wrote back to the mother informing her that he told B of the orders made by her Honour, and that as the father only reads emails from the mother on a Friday, he had not seen the email the mother had sent.
[25] Exhibit C: letter from ATW to BD, 20/09/19.
This is a very sad situation. There is no controversy that B was upset after he learned of her Honour’s decision, although each party’s understanding as to why he was upset appears to be at odds with the other’s.
In another example of the impact of poor communication cited by the mother, the evidence indicates that in May 2019, the mother wrote to the father by email to inform him she had booked appointments for the children to have flu shots that day and asked him to inform her if there were any issues arising. There is no response to that email in evidence. About 3 hours later, she wrote a further email to the father to the effect that the children had informed her that the father had already taken them for flu shots. The mother contends that such a situation could have seriously compromised the children’s health.
The mother includes in her affidavit material, evidence about disputes in relation to C’s sports activities, B’s sports activities and difficulty making arrangements for holiday changeovers.
The evidence is littered with examples of the parents engaging in emails back and forth on a variety of issues including the exchange of children’s clothing and equipment; medical issues; extracurricular activities; and arrangements for school holiday changeovers. It is clear that communication between them is voluminous and, at times, robust. It does not, however, appear to have degenerated into abuse, foul language or threatening communication as is sometimes the case in many of the matters this court sees.
For his part, the father appears to accept that communication between the parties is voluminous. It is not controversial that the father only reads emails from the mother on Friday each week. He gives evidence that he has implemented this as a means of managing the volume of communication he receives from the mother. It is also clear from a number of the emails sent that where an urgent issue needs discussion, he requests the mother to contact his mobile telephone.
Notwithstanding the communication issues, the father contends that the parents have been able to reach agreement on most matters concerning the children. He cites examples of the parents reaching agreement in relation to family therapy with Mr Q, attendance on Ms R, management of B’s myopia, the referral for each child to the school counsellor, engagement with M Paediatrics, agreement in relation to C’s high school, resolution of aspects of the children’s extra-curricular activities, an agreement to engage Dr S, psychologist for the children and ultimately, agreement (on a case by case basis) in relation to school holiday changeover arrangements.
The issue of parental conflict and poor communication is not a new one. It has not emerged over the past 6 years since the 2014 orders were made. It predated those orders and it appears to have been a consistent and persistent feature of the parents’ lives.
Ms D identified as far back as 2013 that the father was reading emails from the mother once per week. It therefore appears that this has been a longstanding practice. It also appears that the volume of correspondence has not changed markedly over the years.
Whilst the mother contends that the persistence of the conflict and poor communication was something that was revealed only after the passage of time since the making of the orders, I consider that Ms D’s report identifies that it was something that the mother, at least, was pessimistic about at the time the consent orders were made, and in that regard, the fact that it continues does not represent a change in circumstances.
It also appears that notwithstanding the evident conflict and voluminous correspondence between the parties both directly and via their lawyers, the parenting arrangements set out in the consent orders have been implemented by the parents. The children attend school. Their medical needs are met. They are engaged in extra-curricular activities, albeit not without some difficulty.
Despite the poor communication and difficulties between the parents, it was not controversial that, at the time of the hearing, the parents had arranged to attend for mediation with Ms T and were in the process of finalising the agenda for the mediation. It was also not controversial that the mother’s application to re-open the proceedings was resolved by the making of consent orders.
B’s medical needs
In 2016 – 2017, the mother became concerned that B was displaying behaviours beyond general anxiety. She observed that he had developed rigid thinking patterns, avoidant behaviours, school refusal and a refusal to attend co-curricular activities. She observed that he had a lack of impulse control that resulted in almost continuous fighting with C in the mother’s household.
The parties subsequently entered into consent orders to facilitate B attending on Ms R for family therapy and for a report to be prepared by her. During the course of the family therapy, the mother raised her concerns about B’s presentation. The mother gives evidence that Ms R told her that she had made similar observations of B, and suggested that he see could see a paediatrician to explore whether his issues were beyond personality and anxiety and included, perhaps autism or ADHD. No report was prepared by Ms R.
In mid-2017, B’s school principal met with the parents to discuss issues relating to B and C, and apparently informed the parents that they may able to attend on Ms U, the registered school psychologist.
Each parent made a referral to the school counsellor and that, at the school counsellor’s suggestion, the parents undertook a Connors Assessment of both children.
Following that assessment, the mother came to the conclusion (having considered her observations of B, prior feedback from other professionals and a recommendation from Ms U) that B should attend a paediatrician. On 11 December 2017, she placed B’s name on a waiting list for Dr V of W Paediatrics.
The mother deposes that she informed the father of her intention to take B to see a paediatrician in a letter sent to the father by her lawyers on 12 December 2017. She sought the father contribute 50% of the cost. She contends that whilst a response was made by the father (through his lawyers) to other parenting issues, she did not receive a response to the proposed attendance on a paediatrician.
In March 2018, the mother was offered an appointment with Dr X of W Paediatrics for 27 March 2018. She took B to that appointment. There is no indication in her affidavit that she took any step to inform the father of the appointment after it was made and prior to it occurring.
Whilst the mother deposes that the purpose of the appointment was for her to understand the “pathway to diagnosis”, during the appointment, she understood Dr X to have felt able to make a diagnosis of ADHD. He advised medication was necessary and urged her to commence B on a medication trial. This she declined on the basis that she could not accept a prescription without the father’s consent. She sought Dr X prepare a letter detailing his diagnosis.
The letter was prepared by Dr X on that date[26]. He opined that B had scored extremely highly for ADHD combined sub-type in the Connors Assessment. He also considered B met “the diagnostic criteria for combined ADHD (ie features of both inattention and hyperactivity) and it is impeding him socially and academically”. He opined there was a strong evidence base to support the use of medication in inattentive ADHD and recommended that with a cautious and appropriate low dose to start, that the side effects were usually minimal.
[26] Affidavit of mother, 04/02/20: Ann G.
Whilst the mother gives evidence that the purpose of the letter was to provide it to the father and his solicitor, it is clear that she had not done so prior to the Child Inclusive Conference on 4 April 2018 and she had not done so by the time the Child Inclusive Conference memorandum was received by the parties on or around 9 April 2018. The significance of this, is that the father discovered that B had attended on Dr X who had made a diagnosis of ADHD via the memorandum and the mother promptly received a letter from the father’s lawyer about this.
There are two references in the memorandum to the diagnosis. One is the mother’s report of the matter to the family consultant. The other, however, came from B himself. The family consultant reports “B said that he went to the doctor recently who said that he has ADHD, which he described as having trouble concentrating in class and that he gets easily distracted. He said that his mother had asked him not to tell people about this diagnosis until they receive the doctor’s report and he was somewhat hesitant about discussing this with the writer”.
I infer from this comment that B considered that his mother did not want him to communicate the diagnosis to anybody until the doctor’s report had been prepared, and that B felt somewhat conflicted by having disclosed this in interview with the family consultant.
Upon becoming aware of these matters, the father commenced action to prevent the administration of medication and to prevent further unilateral medical decisions being taken by the mother in relation to either child. This ultimately resulted in the parties agreeing to engage M Paediatrics for assessment of each of the children.
It would appear that each parent accepted that that organisation was appropriate to assess the children, to make any necessary diagnosis and to provide recommendations as to future management of the children’s emotional and health needs.
Neither B nor C have a diagnosis of ADHD. B is considered to have clinically elevated symptoms of ADHD, but does not fulfil the full diagnostic criteria for the condition. It is clear that this is an issue for B that will require ongoing monitoring and assessment.
As noted, each child was assessed as having issues pertaining to anxiety in the context of exposure to parental acrimony. The multi-disciplinary team at M Paediatrics has made clear recommendations as to future management strategies for each child. The parents appear to have agreed that Dr S will be the preferred psychologist for the children to assist them into the future.
Is there a likelihood of the orders being varied in a significant way?
As was noted by Senior Counsel for the mother, there are some limitations inherent in considering the likelihood of the orders being varied, in a significant way, on a preliminary basis. Having regard to the approach to be taken as set out in the authorities earlier discussed, I approach consideration of the likelihood of the orders being varied in a significant way by taking the mother’s evidence at its highest and assuming it to be true. In doing so, I have not disregarded the evidence given by the father in the proceedings.
I also approach this issue by considering not only the likelihood of the orders being varied at all, but the likelihood of any variation being a significant one that will provide a real solution to the parental conflict here.
By reference to the 2014 orders, as varied by Rees J in 2016, the present parenting arrangements are, in broad terms, as follows:
a)The parents hold equal shared parental responsibility.
b)The children live with the mother.
c)During school terms, the children spend time with the father for 5 nights each fortnight.
d)During the shorter school holiday periods at the end of terms 1, 2 and 3, the children shall spend time with the father with the exception of the first 7 nights of the holiday period.
e)During the longer school holiday period at the end of term 4, the children are to spend the first half with the mother and the second half with the father in odd numbered years, and the first half with the father and the second half with the mother in even numbered years.
f)School holidays are to be taken as commencing on the morning of the day immediately following the last day of the school term and as concluding on the evening of the day immediately before the children return to school.
The orders now proposed by the mother relate to 4 issues:
a)Parental responsibility;
b)Clarification of school holiday periods;
c)Children’s enrolment and participation in extra-curricular activities; and
d)Communication between the children and each parent when they are in the other parent’s care.
Turning then, to each.
Parental responsibility
Essentially, the mother seeks to hold sole parental responsibility for long term medical and/or health decisions. Implicit in her proposed orders is that she envisages that the parents will try to come to an agreement about a long term medical and/or health decision before exercising sole parental responsibility.
Also implicit in her proposed orders is that she will obtain advice, share that advice with the father, consult with him and consider his views prior to taking any decision in the exercise of sole parental responsibility. The orders she seeks will require the parents to be involved in ongoing communication, to attempt to make decisions jointly and in the event the mother forms the view that the parties are deadlocked she will be authorised to take the ultimate decision.
Section 65DAC of the Family Law Act sets out the effect of a parenting order that provides for shared parental responsibility. It provides that where a decision is to be taken in relation to a major long term issue in relation to a child, each person sharing parental responsibility is required to:
a)Consult the other person in relation to the decision to be taken; and
b)Make a genuine effort to come to a joint decision about the issue.
The parents presently hold equal shared parental responsibility. The requirement of that order is, in reality, very similar to the orders the mother seeks.
The distinction between the 2014 orders (and the resultant obligations created by s 65DAC) and the orders proposed by the mother is that under the mother’s proposed orders if parents were to find themselves unable to reach agreement, the mother would have responsibility for making the ultimate decision. In this way, she could act as the arbiter or “circuit breaker”. The orders she seeks would not, however, preclude the father from approaching the court to seek to restrain her from making or implementing a decision. Having regard to the history of the parents approaching the court for relief, I do not consider that the order the mother seeks represents a significant variation from the present orders.
As discussed earlier, the mother contends that the parents are in dispute about medical issues, and that the children’s medical needs are at risk of going unmet and the children may be at risk of adverse health outcomes if parental responsibility does not vest in one parent.
The father contends that vesting sole parental responsibility in the mother for medical decisions would be “a disaster”. In support of this, he cites the recent example of B’s attendance on Dr X and the doctor’s diagnosis of ADHD and recommendation of a trial of medication. It was submitted for the father that if the mother’s approach to this issue had prevailed, B would have been medicated for a condition he does not presently have, based upon a diagnosis made without input from the father.
It was further submitted for the father that notwithstanding this issue, the parents have been able to co-operatively reach agreement on medical decisions such as the management of B’s myopia. He contends that agreement has also been reached on attendance on Mr Q at Y Family Therapy Centre which resulted in engagement with Ms R; on B’s engagement with the school counsellor; and more recently, upon the nomination of Dr S as a psychologist for the children.
The evidence does not clearly establish that it is likely that the orders as to parental responsibility sought by the mother would be made. The mother’s actions in taking B to Dr X without informing the father of the specifics of the appointment and seeking to act on a diagnosis made without the benefit of the father’s input, raise a question about her capacity to consult with the father and give consideration to his views prior to taking a decision. As was observed by the father, there have been other occasions where the parents have been able to reach agreement in relation to medical issues.
In addition, the evidence does not clearly establish that the orders sought by the mother will ameliorate or resolve the parental conflict.
It appears that the orders lay the foundation for further disputation in a number of areas. There is the potential for disagreement about what constitutes a “long term medical and/or health related issue”.
The mechanism proposed by the mother for the exercise of sole parental responsibility requires the parents to first attempt to come to an agreement about the decision to be taken. It requires a process of information gathering, consultation, consideration and decision making. It envisages the parents will be in communication with each other. The orders she proposes require the parents to work together much in the same way as they currently must by operation of the 2014 orders and the legislative obligations arising where there is an order for shared parental responsibility. The mechanism proposed by the mother cannot oust the father’s ability to approach the court for relief in the event the mother proposes to make a decision that does not find favour with the father.
School holiday time
The orders sought by the mother in relation to school holiday time appear likely to achieve little when it appears uncontroversial that the children will attend public schools for their education. The children will not have the extended holiday periods that private schools offer and so the present arrangements for the children to spend the first 7 nights of the school holiday periods with the mother and the balance with the father is unlikely to result in any serious inequity in the time each child spends with each parent during school holiday periods.
Additionally, the mother’s proposed variation to the definition of school holiday periods and the mid-point of school holiday periods is something that ought be worked out between the parents – especially when consideration is given to the relief first sought by the father in the Amended Initiating Application he filed on 9 April 2019. The evidence indicates that the parents have been able to navigate and negotiate school holiday arrangements so that the children spend time with each of them. This is not to say that it has been an easy or a comfortable process, however, as was submitted by Senior Counsel for the father the business of negotiating this issue ultimately gets done by the parents.
Extra-curricular activities and communication
In relation to the proposed variation about extra-curricular activities, the children are fast approaching the age where they will have a greater say in the activities that they choose to undertake and will have greater independence in getting themselves to and from those activities. Similarly, in relation to the orders proposed concerning the children’s ability to communicate with each parent when they are not with them, the children are reaching the age where they may have their own mobile telephone or will be able to access a landline or other form of electronic communication independently of their parents.
Is there a risk to the children if the parenting proceedings continue
The mother seeks to embark on a fresh round of parenting proceedings in which the issues of parental responsibility, school holiday time, attendance at extracurricular activities and communication between the children and each parent will all fall for determination.
In the event that the mother’s application proceeds, the father will be required to file a response setting out the orders he proposes. As was observed by Senior Counsel for the mother during the course of submissions, these proceedings commenced by the father filling an Initiating Application seeking orders in relation to the children’s school enrolments; restraints on the administration of medication and the children’s attendance on health care professionals; the children’s attendance for family therapy; clarification of school holiday arrangements; and the exchange of the children’s property between the parent.
If the proceedings continue, it is unknown whether the father would seek the same relief or whether he might seek relief in more expansive terms.
I consider, therefore, that it is possible that if proceedings continue that the scope of the dispute may expand, rather than remain static or contract.
Senior Counsel for the mother submitted that when the court looks at the indicia warranting the appointment of an Independent Children’s Lawyer set out in authorities such as Re K, the current parenting conflict would be characterised as “intractable”. In the course of submissions, he invited the court to appoint an ICL should the matter proceed. There is force in this submission and it seems that in the event that a new round of parenting proceedings commences, it will be necessary to appoint an ICL to represent the interests of the children. Such a course is likely to require the children to meet with and be interviewed by any ICL appointed for them.
It also seems that in order to navigate the determination of further proceedings, the court will require assistance from an expert such as a family consultant or an expert in family psychology. Given B and C’s respective ages, their participation in the process of preparation of a report cannot be avoided. It is likely they will need to be interviewed, assessed and observed.
Notwithstanding the fact that the mother does not seek interim relief in the pleadings she has filed to date, it cannot be ruled out that one or either of the parties may make an application for interim relief at some point in the proceedings. Given B and C’s respective ages, this gives rise to the potential for the children to be involved in an event such as a Child Inclusive Conference.
The reality of these matters for the children is clear. B and C have been described as highly intelligent children. They will know that their parents have returned to court. B in particular has been aware that his parents have been to court in the past including, in recent times, in relation to the issue of high school. By meeting with an ICL and by participating in family report processes, each child’s experience, thoughts and feelings will be observed, explored, assessed and analysed. It is likely – although not inevitable – that school records and counselling records will be subpoenaed. Further litigation is likely to be invasion into the lives of children who should, at this point, be concerned with childhood worries such as navigating friendships, achieving at school or on the sports field or in their chosen hobbies or pursuits.
It was not controversial that it will take some time to conclude further parenting proceedings. It will not be quick and the matter will not be resolved in a matter of weeks or months. Rather it will likely take a year or more.
With the best will in the world, it will not be possible to quarantine B or C from involvement in the proceedings. It is inevitable that by embarking on a further round of parenting proceedings, the children will be aware – for a significant period of time – that the parental conflict continues and that their parents are at court again. This can only be to the children’s detriment.
If B and C were children who were, to date, largely unaffected by the parental conflict then the detriment of future litigation may not be so significant. This, however, is not the case. As was observed in the M Paediatrics report prepared on 5 December 2018:
B is at risk of increasing emotional, social and behavioural difficulties in the context of ongoing exposure to acrimony and disharmony between his parents. The priority for intervention continues to be for B’s parents to access family support services aimed at reducing conflict and improving family relationships….It will be important for B to access individual counselling to support his mental health and wellbeing, and for strategies to improve his attention and behaviour. We encourage the family to consider accessing support from a psychologist for B…[27]
[27] Mother’s affidavit, Ann J, p. 116.
The same observations and recommendations were made in relation to C in the report prepared following her assessment on the same day.[28]
[28] Mother’s affidavit, Ann K, p. 143.
It appears inevitable that parental conflict will continue either with or without ongoing litigation. If that is correct, B and C will continue to be exposed, to some extent, to the risks identified by the multidisciplinary team that undertook the assessment. I consider, however, that the identified risks of emotional, social and behavioural difficulties arising from the parental conflict are likely to be exacerbated by further litigation, particularly in circumstances where the children cannot be quarantined from that litigation. The reality is that not only will the children be exposed to the usual levels of parental acrimony and disharmony, they will be exposed to the additional levels that will arise as a consequence of each parent’s participation in the litigation process.
I therefore consider that there is a risk to the children’s emotional, social and behavioural wellbeing in the event that they are exposed to parental conflict through the process of litigation.
Conclusion
Accepting the mother’s evidence at its highest, there is a real question as to whether the orders she seeks would be made in any event when regard is had to the time it would take to hear and determine the application, the ages of the children now and at the likely time of final hearing, the factual disputes between the parties and the evidence about communication and decision making to date.
Even if the orders sought by the mother were to be made, it appears unlikely that they will, individually or in their totality, reduce the conflict between the parents significantly or at all. It appears unlikely that the orders proposed by the mother, individually or in totality will reduce the potential for further family law proceedings significantly or at all.
The process of embarking on a further round of parenting proceedings is one that comes with a risk to the children. The children are presently at risk of emotional, social and behavioural difficulties arising from their exposure to parental acrimony. Given that parental conflict appears inevitable, I consider that the risk to the children is likely to be exacerbated by further litigation.
I do not consider that the risk to the children can be ameliorated because I do not consider that it is possible to shield them from the litigation nor to quarantine them entirely from the court’s processes.
In the event that the relief sought by the mother – if granted – was likely to reduce the parental conflict or to result in a set of orders that the parties could “live with” thereby avoiding future litigation, then the benefit to the children of a reduction in conflict may outweigh the detriment to them. Unfortunately, however, the evidence does not indicate that this is a likely outcome.
I consider that the risk to the children arising from further litigation outweighs any benefit to them that might arise if the orders proposed by the mother were to be made. I consider, therefore, that the mother’s application should be dismissed.
I certify that the preceding one hundred and forty five (145) paragraphs are a true copy of the reasons for judgment of Judge M Neville
Associate:
Date: 7 April 2020
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