Hansford and Phillips (No.2)

[2017] FCCA 3402

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANSFORD & PHILLIPS (No.2) [2017] FCCA 3402

Catchwords:
FAMILY LAW – Parenting – application to discharge existing orders – where there is a high level of conflict – where there are difficulties communicating – where one child has mental health difficulties as a result of parental conflict – no significant or substantial new factor is raised - not in the childrens’ best interest to re-open the matter – application dismissed – application lacked cogency and merit – costs awarded to the father.

Legislation:

Family Law Act 1975 (Cth), ss.117, 117(2A)(a), 117(2A)(e)

Cases cited:

Rice & Asplund (1979) FLC 90-725

Applicant: MS HANSFORD

Respondent: MR PHILLIPS

File Number: ADC 4008 of 2013

Judgment of: Judge Young

Hearing date: 24 November 2017

Date of Last Submission: 24 November 2017

Delivered at: Adelaide

Delivered on: 24 November 2017

REPRESENTATION

Counsel for the Applicant: Ms Pyke QC

Solicitors for the Applicant: D’Angelo Kavanagh

Counsel for the Respondent: Ms Lewis

Solicitors for the Respondent: Jacquie Ion Lawyers Pty Ltd

THE COURT ORDERS THAT:

1. The application filed 20 September 2017 be dismissed.

2. The applicant mother pay the respondent father’s costs of the application fixed in the sum of $3,863.00.

IT IS NOTED that publication of this judgment under the pseudonym Hansford & Phillips (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4008 of 2013

MS HANSFORD

Applicant

And

MR PHILLIPS

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amendable to being read.

2. This is a parenting application.  It is an application brought by the mother by way of an initiating application, filed on 20 September 2017, concerning two children:  X, who is 13 years old, and Y, who is 10.  The mother's application seeks to discharge orders made by a judge of this court on 21 January 2015 when Judge Hughes, at the conclusion of a six-day trial, made orders for shared parental responsibility and permitting the mother to relocate from Canberra to Adelaide and, if the father himself relocated to Adelaide, making orders that the children spend equal amounts of time with each parent.

3. The father did in fact relocate soon after the mother's relocation and the regime that has been in place for some considerable time is an equal time arrangement for these two children.  The mother's application raises a series of factors which, she says, merit reopening consideration of the whole matter.  She lists in her affidavit in support the fact that there is a very poor level of communication between the parties.  She characterises it, really, as incessant conflict.

4. She also raises the fact that X, or X who is called "X", has been described as having suicidal ideation.  In the mother's affidavit of 20 September 2017 she annexes, at annexure H3, an emergency mental health clinical assessment made in November 2016.  I won't read the entirety of that document but I will read the part that I consider most relevant.

   History of Presenting Complaint:  X reports one month history of vague thoughts of suicide yet low mood for over six months.  She was able to identify two primary stressors, being parental conflict, X and her younger [sic - presumably “sister” omitted] are aware, although not exposed to conflict. Second and more significant stressor being X’s ongoing anxiety and uncertainty around which high school she will be transitioning to next year for the beginning of Year 8, 2017.

5. It appears to me that that entry is of great significance in this case. I should add that the dispute about schools came before me last year and the dispute was really about which school the children should attend. I made orders that I considered were consistent with the orders that Judge Hughes had made in 2015. I made orders that were substantially - well, ultimately there were consent orders, I think, but the orders were substantially reflecting the father's position. I made a costs order against the mother as a result of those proceedings. As, of course, is well known, a costs order in proceedings under the Family Law Act is a relatively rare event and is not made simply because a case is decided against a particular party but, as in this case, because the position that the party took was unreasonable, and that was the basis of the order I made.

6. The other issues raised in the mother's affidavit were issues regarding health issues about the children.  They seem to me to be about, well, a regional pain syndrome.  There is some disagreement about whether or not X, I think it was, was able to do various things or not.

7. Another factor that was raised was an intervention order made against the father on 1 June 2017.  It is not in dispute that he consented to that order without admissions.  I am not able, I think, in those circumstances, to infer anything about the events surrounding the mother's application for that order and I find it of very limited significance in a Rice & Asplund hearing.  I was also told that there is disputation about child support again.  Ordinarily I would not consider disputation about child support, which is very common in this jurisdiction, to be a matter of significance per se. I was not told very much more about the dispute and, again, I do not feel able to draw any particular inferences from the existence of such a dispute. 

8. The mother also pointed out that there is some medical material suggesting that in April 2015 the father was diagnosed as having an adjustment disorder with mixed anxiety and depressed mood.  It was said that there was a later report in June of 2017 which indicated that the father was experiencing high stress as a result of his home and work life and was experiencing difficulties with work capacity, familial obligations, and resilience building.

9. Apparently, that report was provided to the mother.  It is unclear to me precisely what the circumstances were in the provision of that report but, on its face it appears to be in support of the father being entitled to purchase extra leave from his employer.  It is not explained to me how the mother obtained that report.  As the report has no direct bearing on the father's parenting capacity and no expressed opinion about any diminution in his parenting capacity I am reluctant to conclude or infer anything from that fact alone and I do not believe I can.

10. Another issue that was raised by the mother was her own mental health.  Apparently, she suffers from a disability or a disorder described as agenesis of the corpus callosum which is sometimes, in the papers in this case, referred to as ACC.  I will turn to that issue in a moment.

11. The mother's affidavit in support of this application lists those various matters.  It emphasises - that is, the affidavit in support - the poor communication between the parties and the high level of conflict.  I have already seen evidence of the high level of conflict in the application that I dealt with last year, the one that I have already mentioned that resulted in a costs order against the mother.

12. I do not doubt that there is a high level of conflict.  That is perfectly obvious.  It also seems reasonably obvious that at different times, certainly at November 2016, the high level of conflict was having a deleterious impact on X.  The question of whether or not there ought to be a reconsideration of the orders in this case is not straightforward.  Ms Pyke submits that, given that I am dealing with the matter on an interim basis - that is, on the consideration of the papers, I am obliged to consider the mother's evidence at its highest.

13. For the purpose of this argument, I am prepared to do that.  It is not possible for me to make any particular assessments of the mother's credibility.  I should say that there are very relevant findings in the reasons for decision of Judge Hughes following the six-day trial in 2015, or 2014 and '15.  I think those findings are relevant to this application.  Judge Hughes, at paragraph 141 of the reasons, referred to the mother's mental health difficulties, that is, the ACC.  She found that the mother had difficulty reading interpersonal dynamics.

14. She found that, or she referred, at paragraph 247, to a history of poor communications between the parties.  And at paragraph 244 she noted that the mother experiences the father's communications as criticism of her with the implication that the mother's perception was not accurate in that regard.  At paragraph 245 her Honour found that the father had good communication skills and positively found that the problems in communication lay largely with the mother.  At paragraph 248 she concluded that an order for sole parental responsibility, which is what the mother seeks in this application, was not likely to cure the communication difficulties between the parties.

15. I consider each of those findings entirely consistent with the mother's supporting affidavit and the issues she raises.  She emphasises the difficulties of communication and her counsel, in submissions on her behalf, emphasised those difficulties - in substance, blaming the father or, at least, attempting to cast equal responsibility on the father for what was said to be difficulty in communication leading to chronic conflict.  As I say, the mother's affidavit in support of this application appears to me to be entirely consistent with Judge Hughes' findings or at least not inconsistent.

16. The father, on the other hand, says that while there have been difficulties in communication that, generally speaking, they seem to be able to communicate in a business-like way.  Apparently, communications have been conducted by email via a third party at different times probably as a way of addressing the problems created by the mother's ACC, that is, her misperception of communications as being critical of her. 

17. Counsel for the father also criticised the quality of the mother's evidence. I think what was meant by that submission was that there was a lack of - well, what was specifically said was that there was a lack of detail in the evidence.  I am not sure that I entirely agree with that submission about lack of detail.  I think the mother's affidavit is reasonably detailed and I have already recited some of the factors that are raised in her affidavit - in fact all of the factors that I considered that she was complaining about as significant new factors for the purposes of a Rice & Asplund hearing.

18. I do not find the grounds she has raised, as significant new factors, particularly cogent.  The one that is repeated throughout her affidavit is difficulty in communication.  Given Judge Hughes' findings, which were not subject to appeal and, really, have not been challenged either directly or indirectly by the mother in her material, I consider that the perception of conflict by the mother in the task of parenting is very likely to be, at least in part, a factor reflecting her ACC.  The factor that particularly concerns me in this case is that as recently as November 2016 X was expressing vague thoughts of suicide as a result of parental conflict and anxiety about which school she was going to attend this year.

19. The anxiety about the school she was going to attend this year was a direct result of parental conflict.  It appears to me that I can take into account what is clear evidence in this case that a renewed bout of litigation may well have very adverse effects on these children, particularly X.  The question is deciding whether or not to reopen parenting issues after orders is always ultimately a question of what is in the child's or, in this case, the children's best interests.  Ordinarily, the continuation of litigation, or repeated applications relating to the same issues, that is, parenting issues in this case, would be considered adverse to a child's best interests for the obvious reason that continued conflict is stressful and harmful to children.

20. All of the case law makes perfectly clear that it is an extremely important factor.  There is uncontradicted evidence that that is a real factor in this case.  The so-called rule in Rice & Asplund recognises this reality and requires some significant or substantial new factor or change that merits reconsideration of the issues in the best interests of the children.  I am not satisfied that any of the issues raised by the mother merit a reconsideration of the orders made by Judge Hughes in January of 2015.  I dismiss the application.

    RECORDED  :  NOT TRANSCRIBED

21. This is a costs application made by the father at the conclusion of these proceedings. The costs order under the Federal Circuit Court Rules and the schedule of costs sought amounts to $3,863. The ground on which it was sought to vary the usual rule under section 117 that each party is to bear their own costs was on the basis of section 117(2A)(e) in that the mother, in her application to reopen proceedings, has been wholly unsuccessful.

22. No other relevant matter was pointed to in the submissions made by the counsel for the father. She did not make any submission about the father's financial circumstances.  I take it from the silence of counsel on that issue that the father is not in straitened circumstances and is not experiencing any particular financial hardship that would, of itself, be a relevant factor.  On the other hand, the mother is, according to her counsel, Ms Pyke of senior counsel, in receipt of income of $154 a fortnight Family Tax Benefit - that is $77 a week - and $740 a month child support from the father and he is apparently in arrears to the extent of $1,700, so it was asserted.  There was no evidence of that.

23. If those figures are correct, and I have no reason to doubt what Ms Pyke has told me, the mother is in receipt of an income of $262 a week.  Ms Pyke also told me that because the mother is a discretionary beneficiary of a discretionary trust operated by the mother's parents that she is not entitled to any Centrelink or other welfare benefits because of the rules governing discretionary beneficiaries of trusts in those circumstances.  The mother, apparently, lives with her parents.

24. Counsel for the father pointed out some relevant parts of Judge Hughes' decision, particularly paragraph 100 and 101.  It is said that the wife's parents operate a (business omitted).  They operate a number of family companies and a family trust of which the wife is a beneficiary.  I understand it is a discretionary trust, so she is a discretionary beneficiary.  At that time in 2015, the mother's father was paying, presumably as a trustee or appointor, the mother $1,900‑odd a month after tax for work she did (employment omitted).

25. Apparently the mother's father and his wife support all of their daughters in similar ways according to the judgment.  As at the time of that judgment, the mother's parents had paid $150,000 to $180,000 for the mother's legal expenses.  That was said to have been advanced in a loan.  The mother's circumstances are, therefore, a little unusual.  While she has minimal income, she apparently has some very significant financial resources to draw on from time to time, and has drawn on them.

26. I think her financial circumstances - which is a reference to 117(2A)(a) of the Act - are not simply those of a person with a minimal income.  It would appear that she has some very significant resources behind her if the occasion demands.  I think, in the circumstances, the mere fact of her limited income is not, of itself, an issue - as it would be the ordinary case – that would mean a costs order would not be made against her.  The counsel for the mother says that there were some complex issues to consider.  I do not accept that submission.

27. I consider that the mother's application lacked cogency.  I consider that it lacked real merit.  I assume that, as she was advised or represented by experienced lawyers and very experienced counsel, she was advised accordingly.  That being the case, I cannot see that this application was anything other than speculative.  It was unsuccessful. In the circumstances I think it is reasonable to make a costs order in the sum of $3,863.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 20 April 2018