Harrell and Hancock-Harrell
[2020] FamCA 583
•22 July 2020
FAMILY COURT OF AUSTRALIA
| HARRELL & HANCOCK-HARRELL | [2020] FamCA 583 |
| FAMILY LAW – CHILDREN – Application of Rice & Asplund principles – where the Court is not satisfied that there has been a material and substantial change in circumstances since the making of final parenting orders in 2016 so as to permit further litigation – application dismissed |
| Family Law Act 1975 (Cth) |
| Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 Walter & Walter [2016] FamCAFC 56 McEnearney & McEnearney (1980) FLC 90-866 Mahoney & Dieter (2020) FLC 93-955 Marsden & Winch (2009) 42 Fam LR 1 |
| APPLICANT: | Mr Harrell |
| RESPONDENT: | Ms Hancock-Harrell |
| FILE NUMBER: | BRC | 1164 | of | 2014 |
| DATE DELIVERED: | 22 July 2020 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 19 June 2020 |
REPRESENTATION
| THE APPLICANT: | Self-represented |
| SOLICITOR FOR THE RESPONDENT: | Ms C Barton Barton Family Lawyers |
Orders
That the father’s Initiating Application filed 29 November 2019 (amended 4 March 2020) be dismissed.
That if the Respondent mother wishes to pursue her Application for costs of this Application then:
(a)she shall file and serve any written submissions within twenty-one (21) days;
(b)the father shall file and serve any written submissions in response within forty-two (42) days; and
(c)unless otherwise ordered, the Application for costs shall be dealt with on the papers in Chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrell & Hancock-Harrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: BRC 1164 of 2014
| Mr Harrell |
Applicant
And
| Ms Hancock-Harrell |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant father Mr Harrell was no doubt disappointed when, on 11 October 2019, the Full Court (Ainslie Wallace, Ryan and Austin JJ) published its reasons for dismissing his appeal against final parenting orders made by a Family Court Judge on 29 September 2016 (see Harrell & Hancock-Harrell [2019] FamCAFC 177).
The father, within two months of that appeal decision being delivered, filed an Application seeking unsupervised time with his son C (born in 2011 – now aged eight years), “every second weekend…between 9am Saturday and 5pm Sunday”, together with weekly Skype communication. The father’s Initiating Application was slightly amended on 4 March 2020.
The mother, by a Response filed 27 March 2020, seeks orders that the father’s Application be dismissed and that he pay the mother’s costs of responding to his Application.
At a Directions Hearing before a Registrar on 12 March 2020, the mother’s solicitor identified that the mother sought a hearing on the principles of Rice & Asplund (1979) FLC 90-725, and the matter was listed before me on 19 June 2020.
On that day, I heard oral submissions (by telephone) from the father and Ms Barton, solicitor for the mother, and further had before me (and have considered) written submissions filed by the mother on 5 June 2020 and from the father filed 18 June 2020.
The Court will order that the father’s Application be dismissed for the reasons which follow.
Principles
The principles that apply are well settled and have been restated many times since 1979, with a number of decisions of the Full Court refining the principles, however in essence the principles require:
a)a material and substantial change of circumstances sufficient to justify re-litigating, having occurred since the Orders made by Tree J;
b)although it is not necessary for this determination on the merits to be raised as a preliminary issue, it is often dealt with as a threshold issue because “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.” (per Warnick J in SPS & PLS (2008) FLC 93-363 at [81]);
c)the Applicant’s evidence should be taken at its highest (Walter & Walter [2016] FamCAFC 56 at [51]); and
d)“At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’” (McEnearney & McEnearney (1980) FLC 90-866; Mahoney & Dieter (2020) FLC 93-955).
To enable some assessment of whether significant changes have occurred, the Court needs to look at “[t]he past circumstances, including the reasons for the decision and the evidence upon which it was based” (Marsden & Winch (2009) 42 Fam LR 1 at [50]).
Reasons of trial judge
Whilst I appreciate Tree J (the “trial judge”) based his decision delivered on 29 September 2016 on the evidence heard by him in August 2016 (when C was five years of age), it is still necessary to have regard to the findings at that time. This is necessary so as to assess whether the changes since that time (other than the child being older) are, on the father’s evidence taken at its highest, of such a material and substantial character so as to permit the litigation he has commenced to continue.
Succinctly stated, the trial judge:
a)Accepted the evidence of Dr F and found that the father “does suffer from OCD, and that he is prone to chronic relapse and remission. Additionally, I am satisfied that it does indeed, in the case of the father, justify the specifier “with absent insight/delusional beliefs,” and further, that his obsessions with the Family Court process and the welfare of the child more generally, are a product of his disorder” (paragraph 143);
b)Assessed the father presented as a risk of emotional harm to the child “but one which can be adequately mitigated by Contact Centre supervision” (paragraph 186);
c)Noting the comments made by Forrest J in his Reasons of 29 May 2015 about the need for the father to seek out and obtain continued medical and psycho therapeutic treatment, found on the evidence that the father had not done so (paragraph 185) and that the father’s disorder was not well managed, concluding (at paragraph 186) that:
“that in an unsupervised setting, and until his symptoms from his OCD are able to be managed so that they are less of an issue in his day to day life, the father does present a risk of emotional harm to the child”
In the final analysis, Tree J rejected the mother’s primary proposal that the father should neither spend time nor communicate wish the child ever again until he is an adult, but adopted the proposal contended for by the Independent Children’s Lawyer (“ICL”) for the reason summarised at paragraph 235.
The trial judge made the orders which appear as Appendix One to these Reasons. Particular reference is directed to Order 14.
The father’s case
The father’s written submissions are:
“The orders of Tree J are effectively for 2 year duration and are not final orders. This is demonstrated by order number 16 which gives me the right to seek new orders after the second year.
This is entirely appropriate as it is not legal to place a parent on never-ending supervised contact.
This right to seek new orders makes the need to meet the threshold under Rice v Asplund [1978] FamCA 84 irrelevant.
The change to orders is in the best interest of the child as C knows who his Daddy is and communicates with me. It is C’s right to have a meaningful relationship with me.
If there is a need to meet the threshold in Rice v Asplund the threshold is met in a number of ways as follows:
1.A variation is desirable as it is in the best interests of the child as per Section 60CC(2)(a) of the Family Law Act 1975 Cwth [sic] – the Paramountcy Principle
2.A variation does not materially expose C to renewed litigation and the metter is a simplem one [sic]
3.The principals in Section 65DAA(2) and Section 65DAA(3) of the Act
4.The orders of Tree were impossible to comply with as I had no available supervisor for the second year of the orders
5.My mental health was the main consideration in formulating the orders and a change in the terms of that as set out by Tree J is a significant change. The conduct that Tree J held against me in instigating for C’s safety has not occurred for over 3 years and demonstrates my mental health is stable
6.C has developed from a toddler to an infant which is a significant change
7.The orders were made without all the relevant information before the Court. Of major concern to Tree J was the fact that I provided no evidence that my care plan was working and that I was adhering to my treatment regime and that my mental health was stable. I can now get this confirmation from my treating GP whom is managing my mental health.
8.The fact that C has not seen me for over 5 years.
9.C has undertaken a SS Support program.
10.The evidence of perjury obtained in November 2017 in relation to the disposal of the illegally held firearms and the effect this had on my conduct in instigating for C’s safety and welfare criticized by Tree J
Authority that supports my application under Rice v Asplund are:
· Houston and Sedorkin (1979) FLC 90–699,
· King v Finneran (2001) FLC 93–079, 88368
· Newling and Mole [1987] FamCA 21; (1987)
· Bennett and Bennett [1990] FamCA 148.
· CDJ v VAJ (1998) FLC 92-828”
The mother’s case
Ms Barton’s comprehensive written submissions contend inter alia that:
a)the father provides no evidence to support his assertion (at paragraph 4 of his Affidavit filed 29 November 2019) that the father has “a new treating psychiatrist and have recently been discharged from Queensland mental health”. I accept this submission and the submission of the mother at paragraph 30 that even if there has been further treatment, and where it is not demonstrated the concerns raised by the trial judge were known by any of the subsequent health professionals of the father, that an assumption can not be made that the father’s mental health has improved or is now being properly managed;
b)the Court would not be satisfied that the father’s obsessional focus on the mother and the child’s welfare or his mental stability have changed and have resulted at least in the father having:
“…stopped the instigation for C’s welfare that Tree J held against me”
c)the mother’s sworn evidence filed 27 March 2020 (paragraphs 24 to 58) gives details of a number of concerning events; contraventions of Domestic Violence Orders or the like. The father did not formally respond to those allegations, and it is not necessary to make any specific findings on the charges laid against the father (some of which it appears do not relate to the mother).However, it is not in doubt that the father had contravened the previous Domestic Violence Order for the mother’s protection and when the breaches were ultimately finalised on 18 December 2018, the Magistrates Court (on application by Police), did on that day grant a new Domestic Violence Order for the protection of the mother for five years. C is listed as a party protected; and
d)“It is not in the child’s best interests to embark upon a rehearing of the matter when the same conclusion by the Trial Judge is likely to be reached and noting the psychological damage that would be done to the child and to the parties by reopening litigation”;
Conclusion
The transcript of the proceedings will demonstrate that the Court, mindful of the fact that this father (who I am prepared to accept deeply loves and cares about his son) is unrepresented and feels the system has let him (and his son) down, attempted to direct his attention to principles that apply in this application. I cannot be satisfied that I achieved the aim to do so, however I explained to him, and I find, that:
a)there is no reliable evidence that the concerns raised in the Reasons for Judgment of Tree J about the father’s mental health have been the subject of proper treatment and are being well managed. The mere fact the father asserts that is the case and that he can get a “letter” from his doctor does not fill the evidentiary gap;
b)for any medical assessment of the father since 2016 to be of value, the independent and suitably qualified health professional offering such opinion should have a proper understanding and be aware of:
i)the Reasons for Judgment of Tree J;
ii)the opinion expressed and report of Dr F; and
iii)the history of concerning behaviour identified by the wife since the trial judgment, so that the events can be raised with the father in session and his responses considered from a mental health perspective.
c)similar comments about what the father needs to do have been raised by other Judges as these Reasons identify;
d)the father failed to properly interpret Order 14 of the final Orders which provides:
“14.That in the event the father fails to take up the opportunity of spending time with C at the Contact Centre and/or fails to attend the Contact Centre regularly within 12 months of the date of these orders, then Orders 10 to 13 are discharged 12 months from the date hereof.”
e)the father conceded he did not exercise the time, for C’s benefit, prescribed by the Orders. He did not undertake the intake process for the contact centre. His explanation was that as he was appealing the decision he wished to await for the appeal decision before exercising any time. The result of his failure to exercise time was that Order 14 operated as a self-executing order and Orders 10 to 13 were then discharged; and
f)the child has not spent any time with the father now for five years. The father says the lack of any time between him and C is contrary to the child’s best interests because the child “knows who his Daddy is and communicates with me. It is C’s right to have a meaningful relationship with me”. Whilst I accept that C may benefit from a meaningful relationship with the father, unless the father is able to produce satisfactory evidence that the issues previously resulting in the assessment do not exist, further litigation about C is unlikely to lead to orders in his best interests, different from those pronounced.
The father contends that a variation of parenting orders – essentially ascertaining now whether some form of physical time should recommence “does not materially expose C to renewed litigation and the matter is a simple one”. I disagree. Apart from the assessment of any risk the father presents (if new compelling evidence was offered), the lack of time between the child and the father which directly arises from the father’s decision not to satisfy the conditions and then exercise the opportunity to spend the supervised time with C, means other issues about the child’s ability and views to recommence time (and the mother’s capacity to facilitate any time) will need assessment.
The child will need to be interviewed. He will be involved in the process.
In summary, the best interests of C are not met by permitting the father’s Application to proceed at this time on the evidence currently presented.
His Application will be dismissed.
Costs
The mother’s submissions seeks an order for costs. The father did not make any submissions as to costs. If the mother wishes to pursue such an application then the directions I make for filing of written submissions should be followed. The father, of course, should have an opportunity to make written submissions in response.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 22 July 2020.
Associate:
Date: 22 July 2020
APPENDIX ONE
That all previous orders and parenting plans be discharged.
Where the child shall live & parental responsibility
That the child, C born in 2011 (“the child”), live with the Mother.
That the Mother is to have sole parental responsibility for the major long term issues of the child.
That the Mother inform the Father of any decision she has made pursuant to her sole parental responsibility as soon as practicable after the decision has been made.
Father’s Health
That the Independent Children’s Lawyer be granted leave to provide a copy of Dr F’s report dated 5 February 2015, Ms G’s report dated 22 January 2015, Email from Ms G to the Independent Children’s Lawyer dated 13 February 2015, Dr P’s report dated 24 May 2016 and a copy of these orders and the reasons for them, to Dr M, Dr U, and MM Organisation.
That within 28 days of the date the Independent Children’s Lawyer provides confirmation that she has sent the material as provided for in Order 4, that the Father arrange and attend an appointment with Dr M and with Dr U to discuss the recommendations in Dr F’s report and to speak to his treating professionals about reviewing his medication and current treatment plan.
That the Father continue treatment with Dr M and Dr U and any other mental health professional attended by him as directed by them and follow all of their recommendations including referrals to other treating practitioners and medication.
That the Father be granted leave to provide and is to provide a copy of Dr F’s report dated 5 February 2015, Ms G’s report dated 22 January 2015, Email from Ms G to the Independent Children’s Lawyer dated 13 February 2015, Dr P’s report dated 24 May 2016 and a copy of these orders and the reasons for them, to any new treating mental health professionals in the future.
That the Father authorise and this Order acts as such authority to Dr M, Dr U and MM Organisation and any other mental health care treating professionals he attends, to communicate with the Mother about his mental health, including but not limited to providing information about:
a.attendance upon such professional;
b.compliance with medication; and
c.whether he poses a risk to the mother and/or the child.
Time with the father
10.That upon the father providing written confirmation from both Dr M and Dr U of his attendance upon them pursuant to Order 6 and their confirmation that the father is compliant with any treatment recommended by them and his mental health condition is stable:
a.Each party shall:
i.Contact the D Contact Centre at E Town (“the contact centre”) within 7 days; and
ii.Arrange an appointment for assessment for suitability for supervised time if required;
iii.Attend the assessment (if required);
iv.Comply with any appointments made by the contact centre for supervised time;
v.Comply with all reasonable rules of the contact centre; and
vi.Comply with all reasonable requests or directions of the staff of the contact centre.
b.If after assessment the parties are accepted by the contact centre as suitable for supervised time, the Father is to spend time with the child:
i.each alternate week at times nominated by the contact centre.
ii.As close to Christmas, Easter, the child’s birthday and Father’s day, if the centre is able to accommodate those additional times.
c.In the event that the contact centre offers supervised time only at times which are less regular than specified in order (b) then time will be spent at the times which are offered by the contact centre.
Time under order 10(b) is to be supervised by the contact centre and the parties shall pay the fees for the supervision on each occasion in equal shares.
The father shall not attend the contact centre or its vicinity before the time with the child is to start and shall promptly leave the contact centre and the vicinity when the time with the child is ended.
The period of time to be spent provided for in these orders may vary by reason of the closure of the contact centre’s services during school and public holiday periods, and in such event, time will be spent at times when the services can be provided by the contact centre.
That in the event the father fails to take up the opportunity of spending time with C at the Contact Centre and/or fails to attend the Contact Centre regularly within 12 months of the date of these orders, then Orders 10 to 13 are discharged 12 months from the date hereof.
That in the event:
a.The Father has been regularly attending the Contact Centre and the reports of the child’s time with him from the Contact Centre are that time has been progressing well over the previous 12 months; and
b.The Father’s treating psychiatrist and general medical practitioner confirm in writing that:
i.The Father has been regularly attending upon such professional;
ii.The Father is compliant with medication;
iii.His mental health condition is stable; and
iv.The Father does not pose a risk to the mother and/or the child;
then the child shall spend time with his Father each alternate Sunday from 9am until 4pm with such time from collection of the child until his return, and for the period between to be supervised by an adult agreed between the parties in writing and, in default of agreement, either of the Father’s sisters.
That after 12 months of the father spending time with the child pursuant to order 15 hereof, that he have liberty to apply to dispense with the requirement for supervision.
That changeovers for the Father’s time under order 15 is to occur at the E Town Contact Centre.
Communication & Information sharing
Each party be restrained from communicating with the other party, save and except for the sole purpose of communication regarding parental responsibility and informing each other in the event of an emergency involving the child.
That the Mother and the Father inform the other as soon as practicable should the child suffer any illness, other than minor childhood ailments, or should any major injury occur whilst the child is in their care.
That the Mother and the Father inform the other of any professional or other qualified person they consult in relation to the child and authorise such professional or qualified person to release information to the other parent.
That the Mother and the Father are authorised to obtain school reports, photographs and information relating to the child’s education and extra curricular activities.
That the Mother and the Father inform each other of a contact address, email address, mobile telephone number and notify each other of any change to same as soon as practicable and in any event within 48 hours of any change.
That the Father forthwith enrol in, and successfully complete, a Post-separation parenting orders programme with an appropriate service provider and shall provide a copy of the completion certificate to the Mother.
That the Mother be granted leave to provide a copy of Dr F’s report dated 5 February 2015, Ms G’s report dated 22 January 2015, Email from Ms G to the Independent Children’s Lawyer dated 13 February 2015, Dr P’s report dated 24 May 2016 and a copy of these orders and the reasons for them to any treating mental health professional she may attend.
That the parents will not denigrate each other or their family members in the presence of hearing of the child.
Other
That the parents do all acts and things necessary to arrange for the child’s attendance at the SS Support programme or another similar programme to support and educate the child with regard to the father’s mental health.
That neither party be under the influence of alcohol above the legal driving limit when the child is in their care.
That the Independent Children’s Lawyer is discharged forthwith upon her providing copies of Dr F’s report dated 5 February 2015, Ms G’s report dated 22 January 2015, Email from Ms G to the Independent Children’s Lawyer dated 13 February 2015, Dr P’s report dated 24 May 2016 and a copy of these orders and the reasons for them, to Dr M, Dr U and MM Organisation.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
And it is noted:
A.Dr F and Ms G have both recommended that the Mother attend upon a mental health practitioner to assist her in managing the complexities of an ongoing co-parenting relationship with the father. The Independent Children’s Lawyer is supportive of such recommendation.
B.Dr F and Ms G have recommended that the parties attend a V parenting course or a similar course. The Independent Children’s Lawyer is supportive of such recommendation.
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