Hansford and Phillips (No.3)
[2019] FCCA 912
•28 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANSFORD & PHILLIPS (No.3) | [2019] FCCA 912 |
| Catchwords: FAMILY LAW – Parenting – prolonged litigation – equal time arrangement – the rule in Rice & Asplund – best interests of the child – wishes of the child – child inclusive conference. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Rice & Asplund (1978) 6 Fam LR 570 |
| Applicant: | MS HANSFORD |
| Respondent: | MR PHILLIPS |
| File Number: | ADC 4008 of 2013 |
| Judgment of: | Judge Young |
| Hearing date: | 28 February 2019 |
| Date of Last Submission: | 28 February 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 28 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms O’Connor SC |
| Solicitors for the Applicant: | D’Angelo Kavanagh |
| Counsel for the Respondent: | Ms Dickson |
| Solicitors for the Respondent: | Jacqui Ion Lawyers Pty Ltd |
ORDERS
Until further order the children [X] born … 2004 and [Y] born … 2007 spend time with the father as follows:
(a)during school terms each alternate weekend from the conclusion of school Friday until the commencement of school Monday, commencing the weekends of 8 March, 22 March, 5 April and 10 May 2019;
(b)during the April school holidays from 5.00pm Friday 19 April until the commencement of school Monday 29 April 2019.
That pursuant to section 11F of the Family Law Act 1975 (as amended) the parties and the children [X] and [Y] attend a non-privileged dispute resolution appointment provided by the Child Dispute Services of the family law courts on 16 April 2019 at 9.30am, with the parties to telephone the Registry on 1300 352 000 to confirm their attendance.
That following thereon the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.
The proceedings are adjourned to 21 May 2019 at 11.30am (allowing one hour) with respect to the following:
(a)the mother’s Initiating Application filed 21 February 2019 noting the parties to be in a position to make Rice & Asplund type submissions on that date;
(b)the mother’s Application in a Case filed 25 February 2019 seeking a variation to child support; and
(c)the father’s Application in a Case filed 27 February 2019 seeking a Hadkinson Order.
IT IS NOTED that publication of this judgment under the pseudonym Hansford & Phillips (No.3) 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
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 amenable to being read.
This is a long-running and bitter parenting dispute between two parents who regrettably are unable to parent in a way that fosters the best interests of their children. There was a six-day trial held in 2015 and orders were made for shared care and equal time, essentially. The equal time arrangement has been in place since the mother and the father moved to Adelaide in 2016. The matter has been in my list since 2017, if not 2016.
I have heard a variety of applications over the time relating to orders about which school the children should go to. The mother’s further initiating application last year seeking to have orders that the children spend less time with the father, was dismissed on the basis of the so-called ‘rule’, or principle, in Rice & Asplund, being satisfied that there was no likelihood of a change in the orders. I considered that application to be without merit and I made a costs order against the mother. I made other costs orders against the mother as well, which, in part, is a signifier of my concern about the merit of those various applications.
This matter first came back to me in its most recent iteration last year after [Y] injured her knee, tearing a ligament or cartilage during dance. She was initially hospitalised, has had surgery and her movement has been limited.
The mother said that [Y] did not want to spend time with the father under the equal-time arrangements whilst she was injured for various reasons, including the fact that [Y] was restricted in her mobility, as it was said that the father’s house was less suitable for a person with restricted mobility, but, more to the point, that [Y], as an 11-year-old, required assistance with showering and toileting.
The father’s response was to seek a recovery order. I refused to deal with that application then because I was not satisfied that I had jurisdiction because of an absence of a section 60I certificate. I also made some remarks directed towards the father about the advisability of dealing with problems related to an 11-year-old and, indeed, a 14-year-old at that stage, by way of recovery orders, which I considered was not likely to be particularly productive.
The matter has come back before me with, not surprisingly, a plethora of new affidavit material and a number of new applications. The mother has filed a further initiating application seeking a variation in time order. The father has amended his application to seek a recovery order for both [Y], the 11 year old, and [X], who is almost 15. I have never made a recovery order for a 15-year-old child. It is possible that there would be circumstances that would merit it, but, in the three and a-half years that I have been a judge, I have never seen circumstances which would merit such an order, for obvious reasons. If we are talking about teenagers, the concept of making an order and issuing a warrant for the police to go and remove children is a concept that would appear unproductive to anyone who is sensitive to the needs of children. I was pleased to hear this morning from Ms Dickson, who appears for the father, that the application for the recovery order is not pressed.
The difficulty is that it appears now that [X] has also said that she does not want to spend time under the equal time arrangement with her father that is required by the orders. There was, it appears from the affidavit material, an unpleasant scene at the school which both children attend when the father attended intending to, it would appear, insist on the time specified in the orders to be observed by all concerned, including the school. It appears after some period of negotiation that the father decided that he would not insist on strict compliance with the orders. Today, however, his counsel has told me that he wishes the orders to be complied with.
His affidavit material says very little about the wishes of the children at the moment. The mother says that the children want to spend less time with the father. I do not know where the truth lies there. The father effectively says that the mother is manipulative of the children. It is clear enough from his own affidavit material that he is inclined to be deeply suspicious of the mother.
In his affidavit filed on 12 February 2019, he reproduced an email exchange between himself and [Y] which took place on 12 December. I will read the entirety of it:
Thanks for your concern, dad, but I do not think you understand what the issue is. I’m going to be in the brace until mid-February. I can’t do any soccer things. I also can’t shower on my own because I do not have four arms. The doctor did not ask me about how I feel and what I’m comfortable with.
This is a reference, apparently, to a medical report in which the doctor says what [Y] is physically capable of. I continue the quote:
The doctor did not ask me about how I feel and what I’m comfortable with. He did not ask about showering. He does not know what I need. Mum still has to help me put my undies on. I do not want anyone else helping with that. Mum isn’t keeping me from you, I just can’t manage at your house yet. We’ve worked out a way for me to be at Christmas that I feel comfortable with, so you can get the normal amount of time. It will be 11 am on Xmas eve to 5 pm Xmas day. I do not want make-up time. There was a way that I felt comfortable, but you did not feel comfortable with that, so we haven’t seen each other. But you will see me on Christmas Eve. And it’s more important that I feel comfortable and safe than it is the exact amount of time in the orders.
The father thought he had detected an adult hand in the writing of that email, particularly as, he says, [Y] is dyslexic. Apparently, a letter was written between solicitors where he raised that concern.
On the next day, there was an SMS from [X] in the following terms:
Dad, you have fucking hurt [Y]. She just wanted you to apologise for saying she could never use such a good vocabulary and that it was impossible for her to write that email. She wanted you to understand that she wrote it. I fucking watched her write it. I helped her write it. I helped her with spelling. She does not want make-up time. She does not want you to help her shower or put on her underwear. She won’t even let me help. She’s not stupid, she just does not spout nonsense people tell her to say. You fucking hurt her.
The father then sent an SMS to [Y], in the substance, apologising.
Bearing in mind that his case, up until that point at least, has been that the mother’s explanation for the child wanting to remain with her, that is, the restrictions of her injury and the difficulties about toileting and showering, have been false and/or unnecessary it appears to me that the concession in that affidavit is very telling. It is telling for a number of reasons. First, it suggests to me that the father’s suspicion that the children’s, particularly [Y]’s, reluctance to spend time with him is simply a manipulation caused by the mother is not correct. Secondly, it suggests to me that [Y] is supported, it would appear, strongly by [X]. Both girls, doing their own thinking for themselves, have found the father’s insistence on [Y] continuing to spend time with him, notwithstanding that she required assistance with toileting and showering, to be unreasonable. That is what the children have said to their father. On the face of it, the views expressed by [Y] and [X] in their communications with the father appear to be perfectly reasonable.
The mother says that the children do not want to spend equal time with the father at the moment due to an unpleasant scene at the school. Unpleasant because it appears that the children were upset, particularly [Y], when the father was insisting in substance that the school recognise the orders and act accordingly. The school was caught in a very difficult situation, obviously, in those circumstances but through negotiation, the problem was resolved and [Y] did not actually spend time with the father.
My real concern in this case is three-fold. The first is that this incessant and protracted litigation is damaging for the children. I have no doubt, psychological harm is being inflicted on these two children and it appals me. Yet, neither of parent appears to be able to change course. The situation is harmful because, last year, I read a doctor’s note saying [X] was having thoughts of suicide. I am appalled by this matter, not because of the parents’ conduct but because two children who do not control what happens to them are being harmed psychologically. I consider this case is tantamount to abuse.
My second concern is that the pressure of litigation, which these children are undoubtedly feeling, is likely to undermine their relationship with one or both of their parents in the long-term. It is very difficult to know how these things turn out, whether it is going to be now or later, but, ultimately, this sort of litigation not only causes the psychological harm but also undermines relationships between children and their parents. I have very little doubt that this will happen in this case. Broadly speaking, I think that it is not in the children’s interests that their relationship with either parent is undermined.
The third factor is that these children, who are 11 and almost 15, are no longer passive objects, so to speak, if they ever were. It is clear to me from the email and SMS correspondence between [X], [Y] and their father that they are making their own decisions about what is going on. They are obviously exposed to the conflict. Whatever else the failings of the parents may be, the one that strikes me most is the failure to protect these children from the conflict. These children are fully aware of what is going on and they are in the middle of it and are now old enough to be drawing their own conclusions. They might not be drawing the correct conclusions, but they will be drawing their own conclusions.
In my experience, it is not unusual for children in the middle of protracted and intensive conflict as these children are involved in, as a means of psychological protection, as it were, to choose one parent over another, not because they particularly prefer that parent, but because their psychological integrity requires that they somehow protect themselves from exposure to the continuing conflict. That may be happening in this case. I do not know.
It was put to me by Ms Dickson that it was necessary, if the relationship between the children and their father were to be maintained, that the continuing equal time arrangement continue. I do not accept that submission. These children are 11 and almost 15. Their relationship with their father should be able to withstand some interruption to the period of time. I am concerned that, given the way things have developed, that a continuation of the equal time arrangement produces an unacceptable risk of harm to the children.
The unacceptable risk of harm I am considering is that, if the father continues to insist, as so far he has done, on strict compliance with the orders it might undermine the relationship between the girls and himself. That is what I am concerned about because a sensitive parent must, at times, turn around and walk away saying “I am confident in my relationship with my children. There are ups and downs. There are vicissitudes”. Sometimes there are disputes between a parent and a child or children but, if it is essentially a solid relationship, everyone gets over that. I am concerned that, whatever the rights and wrongs of this situation, the father’s, in my view, ill-advised insistence at this point on the equal time orders being observed runs a risk of that relationship between him and his daughters being harmed. It is time that the pressure should be taken off a little bit to ensure that that risk does not eventuate.
I propose to make orders that there be a child-inclusive conference held on 16 April at 9.30 am where the wishes of the children will be ascertained and there will be a discussion between the children and the family consultant. A report or a memorandum will be produced to the court. I also propose, until further order, to make a variation in the existing time orders. I propose to make an order that the children spend alternate weekends with their father starting next Friday on 8 March after school until Monday before school. In other words, the father will collect them from school and deliver them to school on the next Monday. Those weekends, on my calculation, will be the weekends beginning 8 March, 22 March, 5 April. I propose to make an order that the children spend 19 to 29 April, which is in the middle of the school holidays and, in the substance, the second week of holidays, with the father. The next weekend will be the one beginning on Friday, 10 May and then the matter comes back before me on 21 May at 11.30. I will put some time aside to deal with the other applications which are outstanding.
There is still the mother’s initiating application. I expect the parties to be in a position to make Rice & Asplund type submissions on 21 May. Bearing in mind that if, for example, I am satisfied that the children are expressing a strong wish to have a different time arrangement, I might be satisfied that there ought to be a reconsideration of that issue alone. That is not to say that I would be then inclined to open up all issues. I am very conscious that protracted litigation is thought to be inimical to the best interests of children and I think this case is a perfect example of that. I am very reluctant to have any reconsideration of any of the issues in this case beyond that which is strictly necessary.
The other issue is the mother’s application to seek, in substance, a variation of the child support order. As I say, I have read the AAT decision and I have concerns about the merit of the mother’s application there. I have already indicated some of those concerns and possible cost consequences if those concerns are found to have substance.
The other matter, of course, is the father’s application for a Hadkinson order which is essentially a type of order that is sometimes made in general civil proceedings preventing a party making further applications where there are unpaid costs orders from earlier applications. It appears to me that that is a matter that may well be considered as well. Time permitting, I will attempt to deal with each of those issues.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 9 April 2019
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