Hotchkiss & Marek
[2021] FedCFamC2F 456
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hotchkiss & Marek [2021] FedCFamC2F 456
File number: MLC 8449 of 2017 Judgment of: JUDGE O'SHANNESSY Date of judgment: 25 November 2021 Catchwords: FAMILY LAW – Rice & Asplund – change of circumstances established – mother’s evidence taken at its highest on Rice & Asplund test – interim parenting – interim hearing – contested allegations cannot be determined – presumption not applied but extant order for equal shared parental responsibility – different test for whether the presumption applies. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA. Cases cited: Banham & Banham [2021] FamCAFC 132
CDW & LVE (2015) FLC ¶93-683
Dundas & Blake (2013) FLC ¶93-552
Goode & Goode [2006] FLC ¶93-286
Grace & Grace (2020) FLC ¶93-996
Lysons & Lysons [2021] FamCAFC 59
Marsden & Winch (2013) FLC ¶93-560
Rice & Asplund (1979) FLC ¶90-725
Searson & Searson (2017) FLC ¶93-788
SPS & PLS (2008) FLC ¶93-363
Division: Division 2 Family Law Number of paragraphs: 80 Date of last submissions: 25 November 2021 Date of hearing: 22 November 2021 Place: Melbourne Counsel for the Applicant: Mr D Mort Solicitor for the Applicant: White Cleland Lawyers Counsel for the Applicant: Ms L Colla Solicitor for the Applicant: Stenta Legal ORDERS
MLC 8449 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HOTCHKISS
Applicant
AND: MR MAREK
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
25 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The final orders dated 7 November 2018 operate in full force and effect including but not limited to term time (order 4d); school holidays (order 4f), Christmas (order 4(i)) and changeover (orders 8 and 9).
2.For the purpose of the orders of 7 November 2018, and order 1 herein, the Father's time pursuant to Order 4(d)(i) (week 1), recommences on Friday 3 December 2021 and the Father's time pursuant to 4(d)(ii) (week 2), recommences on Wednesday 8 December.
3.The orders of 7 November 2018 be varied to provide that only the children's parents are to attend any changeover.
4.By 4pm on 6 December 2021, both the Mother and Father enrol in and then complete (separately) the Tuning into Kids Program and the Parent Orders Program and provide the other via their lawyers with a copy of their certificate of completion within seven days of receipt.
5.By 4pm on 29 November 2021, the parties be at liberty to provide a copy of the following documents to Dr B (X's counsellor):
(a)the DFFH Report dated 11 October 2021;
(b)the hair follicle test report dated 12 November 2021;
(c)the supervisors report dated 18 November 2021;
(d)the Child Impact Report dated 22 November 2021; and
(e)a copy of these orders.
6.No later than 4.00pm on 1 February 2022, the Mother shall do all acts and things and sign all documents necessary to facilitate a supervised chain of custody hair follicle testing by an appropriate facility to be paid for at her cost as follows
(a)Such test cover a period of three (3) months if possible;
(b)provide a sample of hair preferably at least 3.9cm in length;
(c)The purpose of the hair follicle testing shall be to test for:
(i)Amphetamine, methamphetamine, MDMA, ecstasy;
(ii)Marijuana and its metabolites;
(iii)Cocaine and its metabolites;
(iv)Opiates.
7.To facilitate the Mother undertaking hair follicle testing in accordance with order 7 the Mother shall contact the appropriate facility to arrange a locality for the supervised hair follicle test to take place.
8.Until completion of the hair follicle testing the Mother shall refrain from taking any step which may interfere with the provision of hair samples or to interfere with the test results including taking any step to shave, cut, shorten, colour, bleach any scalp or body hair and the Mother shall be restrained from cutting their head and body hair shorter than 3.9cm in length.
9.The Mother is directed to provide a copy of these orders to the relevant facility.
10.The Mother direct and authorise that a copy of the results be released directly to the parties' lawyers on the record in these proceedings.
11.From the commencement of school for 2022, the parents engage with Family Dispute Resolution, at their shared expense.
12.Each parent be and is hereby restrained, by himself or herself or their respective servants or agents from the following:
(a)Denigrating, insulting, rebuking, belittling or abusing the other parent to the children or within their presence or hearing;
(b)Discussing these proceedings with the children or in their presence or hearing;
(c)Showing them any document relied upon in these proceedings;
(d)Demeaning the children or either one of them in terms of their respective weight;
(e)Permitting any third party to act in non-compliance with this Order.
13.The parents each acquire the parenting app, OUR FAMILY WIZARD, at their own cost and utilize this communication platform to discuss issues relating to the care, welfare and development of the children, as required, and communication must be between the parents and not their partners.
14.The proceedings be adjourned to 17 April 2023 at 10.00am for Final Hearing (with an estimated hearing time of 3 days) at the Federal Circuit and Family Court of Australia at Melbourne.
15.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X born in 2013 and Y born in 2015 ('the children') attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children's Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 14 November 2022 and that the family report address:
(a)any views expressed by the children and any matters (such as the children's maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the children and upon the children's relationship with the Mother if the Court made orders as sought by the Father;
(d)the impact upon the children and upon children's relationship with the Father if the Court made orders as sought by the Mother; and
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.
16.Not later than 4.00 pm on 3 December 2021 the parties must provide their contact telephone numbers and email addresses to [email protected].
17.Each party will do all things necessary to ensure the children attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
18.The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
19.The Family Consultant shall be at liberty to inspect any material filed by the parties.
20.Leave is granted to each of the parties and the Independent Children's Lawyer (if appointed) to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
21.The matter may be listed for a compliance mention prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
22.No later than 56 days prior to the trial date, the Applicant file and serve:
(a)any Amended Initiating Application setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit; and
(c)other witness affidavits upon which they intend to rely.
23.No later than 28 days prior to the trial date, the Respondent file and serve:
(a)any Amended Response setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit; and
(c)other witness affidavits upon which they intend to rely.
24.No later than 7 days prior to the trial date the Applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the Respondent(s)' affidavits.
25.No later than 7 days prior to the trial date, all parties are to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages and shall include:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court; and
(c)in a parenting case, a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the children to make the orders sought.
26.Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing.
27.Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted.
28.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
29.For face to face final hearings, parties are directed to have multiple copies of the paginated documents they seek to tender or cross examine upon (a judge's working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses including the witness' own affidavit, and for final hearings via Microsoft Teams, those documents be available in an electronic court book.
30.No later than 4 days prior to trial, the legal representatives (and the parties themselves if self represented) jointly prepare a trial plan outlining any witnesses for cross-examination and an indication of the time they anticipate required for cross-examination and re-examination of each witness.
31.All extant interim applications are otherwise dismissed.
32.Costs reserved for both parties.
33.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hotchkiss & Marek has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are the settled reasons of an ex tempore judgment. The matter of Hotchkiss & Marek came before me on Monday 22 November 2021 for the second time. I heard submissions in the afternoon on Monday 22 November 2021 and submissions concluded at 4.15pm when I returned to the part heard final hearing I had listed that day. I reserved my decision until the morning of Thursday 25 November 2021. The matter concerned an application pursuant to what is known as the rule in Rice & Asplund (1979) FLC ¶90-725 (‘Rice & Asplund’), and depending on the decision on the Rice & Asplund point, an application for interim orders.
BACKGROUND
In this case, Ms Hotchkiss (‘the Mother’) is 41, Mr Marek (‘the Father’) is 42, the Mother a health worker, and the Father a finance professional. The parties are fortunate to have two children, X, aged eight, and Y, aged six. They commenced cohabitation in about 2010. They were married in 2012 and they separated in or about October 2016. The parents were divorced on 15 January 2018. These proceedings commenced on 8 September 2021 when the Mother filed an application seeking to vary existing final orders. The parents had previously been parties to proceedings where orders were made by consent before Judge Wilson, as he then was, on 7 November 2018. The parties prepared very detailed consent orders covering many matters over 21 paragraphs.
The matter was first returnable in this court on 4 October 2021. The matter was adjourned so one party had an opportunity to reply. The matter was adjourned to today, a day when I have a final hearing proceedings. On 4 October 2021 orders were made for the filing of material in reply and for hair follicle testing of one of the parents, and also an order that the child X attend upon a psychologist for therapy. In addition, a child impact report was ordered with the interviews to be over 15 and 17 November 2021. The Father's counsel made clear that at the first opportunity the Father would press an application that the Mother's application be dismissed on a preliminary hearing pursuant to the principles of Rice & Asplund.
That child impact report was undertaken and was released to the Court and the parties. The report is dated 21 November 2021 but was released to the parties on the morning of the hearing on 22 November 2021. When the matter came before me on 22 November 2021 the matter was stood down to enable the parties to consider what was in the report and the matter proceeded by way of argument in the afternoon.
When the Father had filed responding material, his position was that he disputed the events alleged by the Mother and asserted that, in any event, the events complained of by the Mother did not warrant the reopening of proceedings with the necessary conflict and impact upon the children's welfare of further litigation.
The first question to be determined is the nature of the proceedings before me. It was common ground between the parties' counsel, and counsel experienced in family law over many years, that the Rice & Asplund application would be dealt with as a preliminary hearing on the papers, but with the addition of other relevant information to the extent that that could be taken into account. That further information was the child impact report. Further I had the section 67Z response of the Department of Families, Fairness and Housing (‘DFFH’) dated 11 October 2021.
The issue then that I need to address is the nature of the evidence and the evidentiary tests that apply upon a Rice & Asplund hearing. I should add, if it is not already clear, that it is necessary for me to determine the Rice & Asplund application, before turning to the differences between the parties or the dispute between the parties as to the orders that I should make.
ORDERS MOTHER SOUGHT
The Mother sought (M1 22/11/2021) the following orders:
1.Paragraphs 4-9 inclusive (orders that related to the Father’s time and changeover) of the Orders made 7 November, 2018 be suspended.
2.The children of the marriage, X born in 2013 and Y born in 2015 (“the children”) spend time with the Father as follows:
(a) On each alternate Sunday from 12.00 p.m. until 5.00 pm;
(b) On each Wednesday from the conclusion of school until 6.30 pm.;
(c) For Christmas 2021, on Christmas Eve from 3.00 p.m. until 7.00 pm;
(d) As otherwise agreed in writing.
3.Save for changeovers at school, changeovers occur outside the Village cinemas ticketing box, C Shopping Centre, unless otherwise agreed AND FURTHER, the parents attend such changeovers in the absence of third parties, save in the case of an emergency.
4.The Mother shall no later than 4.00pm on 1 February 2022 do all acts and things and sign all documents necessary to facilitate a supervised chain of custody hair follicle testing by an appropriate facility to be paid for at her cost as follows:
a. Such test cover a period of three (3) months if possible;
b. provide a sample of hair preferably at least 3.9cm in length;
c. The purpose of the hair follicle testing shall be to test for:
i. Amphetamine, methamphetamine, MDMA, ecstasy;
ii. Marijuana and its metabolites;
iii. Cocaine and its metabolites;
iv. Opiates.
5.To facilitate the Mother undertaking hair follicle testing in accordance with order 4 the Mother shall contact the appropriate facility to arrange a locality for the supervised hair follicle test to take place.
6.Until completion of the hair follicle testing the Mother shall refrain from taking any step which may interfere with the provision of hair samples or to interfere with the test results including taking any step to shave, cut, shorten, colour, bleach any scalp or body hair and the Mother shall be restrained from cutting their head and body hair shorter than 3.9cm in length.
7. The Mother is directed to provide a copy of these orders to the relevant facility.
8.The Mother direct and authorise that a copy of the results be released directly to the parties’ lawyers on the record in these proceedings.
9.The Father forthwith enrol in, attend and complete a Men’s Behavioural Change Course and provide a Certificate of Completion to the Mother, as soon as practicable.
10.Each parent forthwith enrol in, attend and complete the following courses and provide a Certificate of Completion to the other parent, as soon as practicable;
(a) Tuning into Kids Course;
(b) Parenting Orders Program.
11.Each parent be and is hereby restrained, by himself or herself or their respective servants or agents from the following:
(a)Denigrating, insulting, rebuking, belittling or abusing the other parent to the children or within their presence or hearing;
(b)Discussing these proceedings with the children or in their presence or hearing;
(c) Showing them any document relied upon in these proceedings;
(d)Demeaning the children or either one of them in terms of their respective weight;
(e) Permitting any third party to act in non-compliance with this Order.
12.The Father be and is hereby restrained by himself or his servants or agents from cutting the children’s hair.
13.From the commencement of school for 2022, the parents engage with Family Dispute Resolution, at their shared expense.
14.The parents each acquire the parenting app, OUR FAMILY WIZARD, at their own cost and utilize this communication platform to discuss issues relating to the care, welfare and development of the children, as required.
15. All extant applications be adjourned to April, 2022
NOTATION:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
The Mother did not state what final orders she would seek but wanted to see how the therapy with Dr B would assist.
ORDERS FATHER SOUGHT
The Father sought (F1 22/11/2021) the following orders:
1.That the final orders dated 7 November 2018 operate in full force and effect including but not limited to term time (order 4d); school holidays (4f), Christmas 4(i) and changeover (8 and 9);
2.That the mother and father attend upon a parenting co-ordinator to be chosen by the wife from three nominations put to her by the husband with such nominations to be put by 4pm 29 November 2021 and the wife’s pick to be made by 3 December 2021
3.That both the mother and father by 4pm 29 November 2021 enrol in and then complete (separately) the Tuning into Kids Program and the Parent Orders Program and provide the other via their lawyers with a copy of their certificate of completion within seven days of receipt.
4.That the mother forthwith complete a further hair follicle test on the same terms as the orders referred to in order 3 – 7 of orders dated 4 October 2021
5. That the parties be at liberty by 4pm 29 November 2021 to provide a copy of
a. the DFFH Report dated 11 October 2021
b. the hair follicle test report dated 12 November 2021
c. the supervisors report dated 18 November 2021
d. the Child Impact Report dated 22 November 2021
e. a copy of these orders
to Dr B (being X’s counsellor)
6.Otherwise, the mother’s application filed 9 August 2021 be dismissed, with liberty for the Father to apply on short notice to the Chambers of O’Shannessy J., in respect of the hair follicle test referred to in order 4 herein.
AND IT IS NOTED THAT
a.The father’s contravention application has been listed for hearing before Her Honour Judge Cope commencing 15 March 2022 at 10.00am in Cairns for two days.
b.The parties have a common understanding that phone contact between the children and the Father will take place from 5pm to 5.30pm on Tuesdays and Thursdays.
RICE & ASPLUND PRINCIPLES
Rice & Asplund hearings can have various forms. Frequently, and frequently in the Melbourne Registry, Rice & Asplund applications are heard as a preliminary hearing and a hearing on the papers. That is, without the parties giving evidence or being cross examined. Other forms of a Rice & Asplund application, as demonstrated by the authorities including SPS & PLS (2008) FLC ¶93-363 (‘SPS & PLS’), is that the Rice & Asplund principle can apply at whatever stage of the proceedings the matter is pressed. That can include a special hearing where evidence is taken to determine facts in dispute and/or at a final hearing after all of the evidence is in.
The first question to be determined before me today is what applications are before me and to identify the manner in which the parties sought that I hear it. This case falls to be determined as a preliminary hearing on the papers, but with additional information such as the child impact report. The test to be applied at this hearing on the Rice & Asplund aspect is summarised in a number of authorities. I was urged by Mr Mort, counsel for the Mother, to take into account the authority of CDW & LVE which is reported at (2015) FLC ¶93-683. In particular, Mr Mort referred me to the passage that in the CCH report is at paragraph 88 where Martin CJ of the Supreme Court of Western Australia determined a Rice & Asplund case.
The ratio of the case was that his Honour determined that he did not have jurisdiction to hear the appeal, but his Honour went on to make observations in the event that he was wrong and he had jurisdiction, how he would have determined the matter. In the process of doing that, his Honour referred to and identified key principles from a number of established authorities of the Family Court of Australia. At paragraph 88 his Honour said:
[88]The cases to which I have referred make clear that identification of the asserted change or changes in circumstances is a critical step in the necessary process of evaluation and assessment…
And his Honour in that paragraph went on to say:
… Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned. So, for example, in Marsden & Winch the Full Court of the Family Court of Australia held that in order to determine, in a particular case, whether the court should be willing to embark upon another hearing, the court must look at the past circumstances, including the reasons for the decision and the evidence upon which it was based
The inference that Mr Mort urged me to draw from the circumstances in concise submissions as to the Rice & Asplund point was that the current circumstances were not within the contemplation of the parties or the Court as at the time of the final orders.
Existing Final Orders
It is necessary that I refer to and recite the final orders of 7 November 2018.
Parenting orders
1. All previous interim parenting orders be discharged.
2.The parties have equal shared parental responsibility of the children of the marriage namely X born in 2013 and Y born in 2015 (“the children”).
3. The children live with the mother.
4. The children spend time and communicate with the father as follows –
Fortnightly schedule
a. commencing from the date of these orders until 6 November 2018 –
i.in week 1, from 5.30pm Friday until 8.15am Monday, and in the event Monday falls on a public holiday time shall conclude at 5.30pm, and each alternate weekend thereafter;
ii.in week 2, from 4.00pm Thursday until 8.45am on Friday each alternate week thereafter;
iii. changeovers shall occur –
1.on Fridays at 8.45am and 5.30pm at the Caltex Service Station on D Street, Suburb E (“the Caltex”);
2.on Mondays at 8.15am and 5.30pm if they fall on a public holiday at the Caltex; and
3.on Thursdays at 4.00pm with the father to collect both children from X’s from kindergarten;
b. commencing 7 November 2018 until 21 December 2018 –
i.in week 1, from 5.30pm Friday until 8.15am on Monday, and in the event Monday falls on a public holiday time shall conclude at 5.30pm, and each alternate weekend thereafter; and
ii.in week 2, from 5.30pm Wednesday until 8.45am on Friday and each alternate week thereafter.
iii. changeovers shall occur –
1. on Fridays at 8.45am and 5.30pm at the Caltex;
2.on Mondays at 8.15am and 5.30pm if they fall on a public holiday at the Caltex; and
3. on Wednesdays at 5.30pm at the Caltex;
c. commencing 29 January 2019 until 18 December 2020 –
i.in week 1, from after school on Friday until 8.45am on Monday, and in the event Monday falls on a public holiday time shall conclude at 5.30pm, and each alternate weekend thereafter; and
ii.in week 2, from after school on Wednesday until 8.45am on Friday and each alternate week thereafter.
iii. all changeovers shall occur as follows –
1.the father to collect X from school or after school care (at his discretion and cost) and Y from kindergarten or daycare at the commencement of his time and in the event Y is not attending kindergarten or daycare on Wednesdays and Fridays, the mother shall deliver Y to X’s school to facilitate changeover at 5.30pm or at a time agreed by the parties;
2.the father to deliver X to school and Y to kindergarten or daycare at the conclusion of his time and in the event Y is not attending kindergarten or daycare on Mondays and Fridays, the mother shall collect Y at X’s school to facilitate changeover at 8.45am; and
3. on public holidays or non-school days at the Caltex.
d. commencing 27 January 2021 –
i.in week 1, from after school Friday until 8.45am on Monday, and in the event Monday falls on a public holiday time shall conclude at 5.30pm, and each alternate weekend thereafter; and
ii.in week 2, from after school on Wednesday until 8.45am on Friday and each alternate week thereafter.
iii. all changeovers shall occur as follows –
1.the father to collect the children at the commencement of his time from school or after school care (at his discretion and cost);
2.the father to deliver the children to school at the conclusion of his time; and
3. on Public holidays or non-school days at the Caltex;
School holidays
e.commencing in the term 1 school holidays in 2019, for one half of each of the school term holidays on week about basis at dates and times to be agreed and in default of agreement –
i.in 2019 and each odd year thereafter, for the first half of the term holiday period commencing after school on the last day of school until the middle Saturday at 5.30pm; and
ii.in 2020 and each even year thereafter, for the second half of the term holiday period commencing at 5.30pm on the middle Saturday until 8.45am on the first day of school;
f.commencing during the long summer school holiday period in 2018, on a week about basis at dates and times to be agreed and in default of agreement –
i.in 2018 and each even year thereafter, commencing at 5.30pm on the second Saturday of the long summer holiday period and concluding at 5.30pm Saturday one week later and thereafter alternating in the same weekly pattern thereafter until 8.45am on the first day of school; and
ii.in 2019 and each odd year thereafter, commencing after school on the last day of school and concluding at 5.30pm Saturday one week later and thereafter alternating in the same weekly pattern thereafter until 8.45am on the first day of school;
g.the fortnightly regime provided for in order 4(a) to (d) herein is suspended during the school term and long summer holidays and resumes in the same cycle as if not interrupted by the holidays;
Easter
h. during the Easter period –
i.in 2019 and each odd year thereafter, from 10.00am on Good Friday until 5.30pm on Easter Saturday; and
ii.in 2020 and each even year thereafter, from 5.30pm on Easter Saturday to 10.00am on Easter Monday;
Christmas
i. during the Christmas period –
i.In 2018 and each even year thereafter, from 11.00am Christmas Day until 3.00pm Boxing Day; and
ii.In 2019 and each odd year thereafter, from 3.00pm Christmas Eve until 11.00am Christmas Day;
Birthdays
j. on each of the children’s birthdays –
i.for X’s birthday, in 2019 and each odd year thereafter, from 5.30pm until 12noon;
ii.for X’s birthday, in 2020 and each even year thereafter, from 12noon until 5.30pm;
iii.if Y’s birthday falls on a week day and if the children are with the mother, from after school until 7.00pm;
iv. if Y’s birthday falls on a weekend or public holiday –
1.in 2018 and each even year thereafter, from 5.30pm until 12noon; and
2.in 2019 and each odd year thereafter, from 12noon until 5.30pm.
k. on the father’s birthday –
i.when the birthday falls on a week day, from after school until 7.00pm; and
ii.when the birthday falls on a weekend, from 5.30pm on the day before the birthday until 5.30pm on the birthday;
Father’s Day
l.on Father’s Day from 5.30pm on the Saturday prior to Father’s Day until 5.30pm on Father’s Day (in the event the children are not already with the father);
Melbourne Cup Day
m.on Melbourne Cup Day in 2018 and each even year thereafter, from 10.00am until 5.30pm;
General
n. such other times to be agreed in writing between the parties.
Suspension of time
5.The father’s time with the children be suspended during the following occasions when the children will return into the mother’s care –
a. during the Easter period –
i.in 2019 and each odd year thereafter, from 5.30pm on Easter Saturday to 10.00am on Easter Monday; and
ii.in 2020 and each even year thereafter, from 10.00am on Good Friday until 5.30pm on Easter Saturday.
b. during the Christmas period –
i.in 2018 and each even year thereafter, from 3.00pm Christmas Eve until 11.00am Christmas Day; and
ii.in 2019 and each odd year thereafter, from 11.00am Christmas Day until 3.00pm Boxing Day; and
c. on each of the children’s birthdays –
i.for X’s birthday, in 2019 and each odd year thereafter, from 12 noon until 5.30pm;
ii.for X’s birthday, in 2020 and each even year thereafter, from 5.30pm until 12 noon;
iii.if Y’s birthday falls on a week day and if the children are with the father, from after school until 7.00pm;
iv. if Y’s birthday falls on a weekend or public holiday –
1.in 2018 and each even year thereafter, from 12noon until 5.30pm; and
2.in 2019 and each odd year thereafter, from 5.30pm until 12 noon.
d. on the mother’s birthday –
i.when the birthday falls on a week day, from after school until 7.00pm; and
ii.when the birthday falls on a weekend, from 5.30pm on the day before the birthday until 5.30pm on the birthday.
e.on Mother’s Day, from 5.30pm on the Saturday prior to Mother’s Day until 5.30pm on Mother’s Day (in the event the children are not already with the mother); and
f.on Melbourne Cup Day in 2019 and each odd year thereafter, from 12noon until 5.30pm.
Communication
6.The parties are permitted to contact the children via telephone, SMS, video call or like communication to ensure the children are able to speak with either parent once per day on Monday to Thursday at a reasonable time in the event they have not spent time with that parent on that day.
7.Each party provide the other with at least 28 days prior notice in writing of any proposed change of address and that each party keep the other informed as to their current contact mobile telephone numbers.
Changeovers
8.Unless otherwise specified in these orders, including where changeovers do not occur at school, after school care, kindergarten or daycare, changeovers shall occur at the Caltex.
9.For the purposes of changeovers that require the attendance of both parties pursuant to these orders, if the parties are unable to attend personally then they –
a. are both at liberty to send a family member; or
b.send an alternate nominee if agreed in writing by the other party.
Education
10.The parties forthwith sign all necessary documents and do all things necessary to –
a.ensure attendance of X at F School for the commencement of the 2019 school year until completion in 2025; and
b. ensure attendance of Y at –
i. F Pre School for the 2019 and 2020 years;
ii.her continuation of Dawn till Dusk child care on non-kindergarten days at the discretion of the party whose time it is on that day from the date of these orders until the end of the 2020 kindergarten year; and
iii.enrol and ensure attendance at F Primary School for the commencement of the 2021 year until completion in 2027;
c. or such other school as agreed in writing between the parties.
11.Both parties be at liberty to attend all of the children’s parent/teacher interviews at childcare/kindergarten/school, extra-curricular activities and childcare/kindergarten/school events to which parents are invited to including the first day of school and/or first day of kindergarten.
12.Each party is hereby authorized to receive all childcare/kindergarten/school notices, reports, letters, notices and photographs at their respective expense if any.
Healthcare
13.Each party keep the other informed as to any serious illness, accident, hospitalization or medical condition with respect to the children, any attendance by either child on any medical/health practitioner.
14.The parties and children continue to attend upon Ms G psychologist, or such other psychologist as the parties agree (“the psychologist”) at their shared cost and for the purposes of ongoing therapeutic counselling to assist the parties and the children with the implementation of these Orders.
Travel
15.Each party inform the other party if they intend to take the children outside the State of Victoria during the period when the children are in their care, such notice to occur within 7 days prior to departure.
16.In the event either party intends to travel with the children outside the Commonwealth of Australia, they shall not less than 30 days prior to departure notify the other in writing as to –
a. the country/ies to which the children will travel;
b. the airline/s and flight numbers to which the children will travel;
c. the date upon which the children will depart from and return to the Commonwealth of Australia;
d.proof of appropriate travel vaccinations being completed (if the country to which travel is contemplated requires it) with the parent travelling being responsible for the costs;
not less than 7 days prior to the departure date provide a final itinerary for the children.
17.In the event either party intends to travel with the children outside the Commonwealth of Australia, both parties do all acts and things and sign all necessary documents to apply for a passport for the children at the travelling party’s expense.
Restraints
18. Each party is hereby restrained from –
a.enrolling the children in any other school, kindergarten or daycare as not otherwise provided for in these orders;
b.enrolling or committing the children to any activity during the other’s party’s time without first obtaining the other party’s consent in writing to such an activity;
c.denigrating each other to the children or speaking with the children, or to any other person in the children’s presence, in derogatory terms about the other party; or
d.assaulting, intimidating, molesting, harassing, threatening or in any way interfering with each other.
General
19.The mother shall attend a post separation course and provide a certificate of completion to the other within 60 days from the date of this order (it being noted to the father has completed such a course and provided the mother’s lawyers with his completion certificate).
20.All other Applications be otherwise dismissed, including the father’s application – contravention, and the final hearing date of 8 November 2018 be vacated.
21.Pursuant to S65DA(2) and S62B, 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 annexed hereto and these particulars are included in these orders.
The recent decision of Searson & Searson (2017) FLC ¶93-788 (‘Searson & Searson’), a case handed down on 5 July 2017, a decision of the Full Court of the Family Court of Australia, is of assistance as a recent, concise decision as to the principles to be applied. I should say that in some senses the decision of Rice & Asplund is almost like Abraham: in that the descendants of Rice & Asplund are like the stars in the sky in the terms of the number of authorities that can be referred to over the history of the jurisprudence of this court. Many decisions add or quality the essential underlying principles due to the relevant circumstances of a particular case, and it is clear that those principles have been considered and reconsidered over and over;
In Searson & Searson at 11, Murphy J cited with approval the statement in Marsden & Winch (2013) FLC ¶93-560 (‘Marsden & Winch’), a 2009 case.
[16] In Marsden & Winch the Full Court said:
[57] In Miller the Court posed the question:
[105]Adapting the language used by Warnick J in SPS and PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
And his Honour went on to quote paragraph 58:
[58]That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
At paragraph 60 of the same case Kent J stated as follows:
In considering the application of the so called rule in Rice & Asplund at the preliminary stage of the proceedings in which the primary judge did in this case, her Honour was bound to assume the acceptance of the mother’s evidence on the question of whether a sufficient change in circumstances was demonstrated…
Loughnan J agreed with those observations.
There is just a couple more decisions I want to go to. In Grace & Grace (2020) FLC ¶93-996, a Full Court decision delivered 19 November 2020, the appeal concerned an initial hearing that got off to a bad start when there was confusion as to exactly what was being heard by the Court. The Full Court was sitting as Ainslie-Wallace J. Her Honour recited paragraph 48 of Marsden & Winch, being the underlying reason why there is such a test of Rice & Asplund, and it is worth citing here:
[9]The principle is a manifestation of the best interests principle and founded on the notion that “continuous litigation over a child or children is generally not in their interests”. The application of the rule is connected to “the nature and degree of change sought” to the earlier order.
[10]In Marsden v Winch (2009) 42 Fam LR 1 (“Marsden v Winch”), the Full Court said:
[48].In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
(citations omitted)
Her Honour concisely set out a useful summary of the appropriate test or principles to be applied at paragraph 11:
[11]The determination of whether there has been sufficient change in circumstances to warrant a re-opening of parenting issues can be determined as a preliminary issue or be considered at the same time as the hearing into that re-opening. The Full Court in Marsden & Winch continued and at [58] formulated the inquiry to first establish a prima facie case of changed circumstances to have been established; and secondly a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
Tree J, sitting as the Full Court in the matter of Lysons & Lysons [2021] FamCAFC 59 at paragraph 65 gives in principle indirect approval, or restatement, of the test that it was the applicant's evidence that was to be taken at its highest when it was observed:
[65]…Further, there is no warrant for the claim that the primary judge failed to take the appellant's evidence at its highest.
On 29 July 2021 in the matter of Banham & Banham [2021] FamCAFC 132, Strickland J, sitting as the Full Court, dealt with the issue of Rice & Asplund, and at paragraph [73] set out how:
[73]…there is no doubt that the rule in Rice & Asplund is a “manifestation of the best interests principle”.
And at paragraph [76] Strickland J set out the potential detriment to children of continued litigation. Hence, I proceed on the basis that reopening of litigation and conflict between the parents is not a good thing and is contrary to the children's interests. However, such a simple statement of principle does not determine the matter.
I now look at what the Mother's says are the sufficient change of circumstances.
Before I do, I just want to address the argument put by the Father's counsel. The Father's counsel asserted that the parties had always had a poor relationship. He said they continue to have a poor parenting relationship, and that what had occurred, on either parties case, was more of the same appalling behaviour, whilst at the same time, asserting that I should accept the Father's version of some of the controversial events.
The Mother's counsel addressed me on the basis that I should accept the Mother's version of the controversial events. Having pondered both parties' submissions, I have determined that where each party was asking that I should take their client's version of the controversial events into account, they were addressing me in regard to, what I will call the interim orders dispute issue rather than the Rice & Asplund issue. But, if I am wrong about that and it was intended that on the Rice & Asplund issue I should determine on a preliminary hearing that one party's version of events is correct as opposed to the other's, I have looked at the evidence and I have taken that into account.
However, the fact is that on the Rice & Asplund issue the test is that I must take the applicant Mother's evidence at its highest. The issue now is does that evidence justify the reopening of litigation in the best interests of the children or, in this case, is the continuation of litigation in the best interests of the children. I turn to the Mother's affidavit and, for the benefit of the parties, what your lawyers will know is had I spent another day or two on this judgment it would flow more smoothly but because I have had hours, not days, it is a little bit clunky, so I apologise for that.
The Mother's Notice of Child Abuse, Family Violence or Risk filed on 8 September 2021 asserts that:
(1)the child X has been subjected to serious psychological harm as a result of exposure to an incident of family violence on 13 August 2021 wherein the Father chased the Mother and the children in his car, and;
(2)the child X has been subjected to serious psychological harm as a result of the ongoing fixation by the Father and his partner on her weight, including feeding her inadequate amounts, depriving her of treat foods whilst her sister eats them in front of them, making negative comments about her weight and weighing her weekly.
The Mother's affidavit sworn 7 September 2021 starts the narrative of recent conflict on 3 August 2021 when the child, Y, was sick with a cough and high temperature and she decided that the child should have a COVID-19 test. The nature of the parenting relationship was such that this was communicated to the Father by the Mother by her partner, Mr H, who texts the Father. That is necessary because it is not disputed that in 2019 the Father had blocked the Mother's number from his phone and that he insisted upon communications going through his brother in an attempt, he says, to limit the conflict between the parents and the abuse that he says he received from the Mother.
The text is interesting in the sense that the two parents are meant to be parenting the children but the text from the Mother's partner to the Father talks about, “We are taking Y to the doctor. We are guessing”, and that it ended, “I will keep you in the loop”. That was the communication on 3 August 2021. There was another communication at 9 o'clock on the same day, again from the Mother's partner Mr H, that on one level is courteous, on another level is either intentionally or accidentally inflammatory and includes the passage:
Y has a virus and Ms Hotchkiss can't guarantee where she has been as she has been in your care and potentially the girl you are seeing's care. I will confirm the results when Ms Hotchkiss receives
(and so on)
The text message referring to the Father's partner as, “The girl you are seeing”, is attached to the Mother's affidavit without apparent embarrassment or insight into the potential inflammatory nature of such a comment. The Father’s partner is Ms J. That comment may have been motivated, either recklessly, carelessly or intentionally. It goes back to a long held position, or at least at one time position, that the Mother had in regard to the Father's same partner evidenced by emails to him.
Monday 15 October 2018:
7.42pm‘Almost 8 inches (I’ll speak American for you) was cut from Y’s hair. Photographs will prove you more meet trim was way more to work in with yours and Ms J’s inabilities to manage children amongst a lot of other things’
Thursday 11 October 2018:
…
8.16pm I am filming both children and their inability to speak traditionally Australian’
8.17pmAll thanks to you and Ms J. You have both contributed to their developmental demise
8.18pm We live in Australia
8.18pmI’m am undertaking a full verbal psychological exam for both kids’
8.19pm This is a delaying and confusing their development
8.19pmMs J will have nothing to do with our children if she cannot adopt Australian ways
8.20pm They are all I care about and I put them first
8.20pm Suggest you do the same
8.21pmI am mortified yup would allow Australian children to take on American terminology and delay and demote their development’
8.22pm I’m seeing a psychologist/speech pathologist
8.22pm Which I’m paying for
8.23pmI will not have our Australian children raised as an American:. Let me make this very clear. Or their speech and word forming be impacted by someone who had been a parent
8.24pm Let me make it clear
8.25pmOur children deserve better. Make them your priority not some woman who is not from our world and is impacting our children speech. You should be disgusted.
8.26pm Who has never been a parent*
Friday 5 October 2018:
9.03amWhere are you Mr Marek
11.14amIt is not acceptable for our almost three year old to be calling a nappy a diaper Mr Marek. The first 5 years of child’s development a (sic) paramount. We live in Australia. I will not have Ms J confusing my daughter who is learning how to talk what the correct terminology for our country is. Nor will I have her American terminology confusing or potentially delaying her developmental capacity.
11.29amI will be seeking professional advice in regards to this matter. And a psychologist review for both children should you wish to attend. I am concerned if Y is ready for kinder in semester 1 also. She is very young for her year, I will be proceeding with advice on this too.
I do not yet know whether the Mother's partner knew of those communications at the time that he chose to make that observation about “the girl you are seeing” or whether that comes from discussions between the Mother and her partner that give rise to such a description. But the irony that the Mother's partner would refer to the Father's partner in such terms was lost on the Mother's partner and the Mother in the making of that affidavit. Nonetheless, the Mother then goes on at paragraph 20 to set out a number of matters of significant concern about the nature of the communications between the Father and what can be described as emotional abuse of the child including changeovers being filmed.
There is a lack of detail as to dates and times, but the Mother deposes that these issues and events have occurred since the orders were made in 2018. That is, they have occurred post the orders. The Mother then goes on to describe the events of the Father, she says, wrongly accusing her of lying about the results of the COVID-19 test. The Mother deposes that she was unaware that the test undertaken from a doctor's surgery would be referred back to the doctor's surgery and that she would not receive the text message. She found that she did not find the information in that circumstance until 6 August 2021. The Father regarded this, and told her so, as lying about such events.
Tailgating Violence or the Great Misunderstanding
I then need to come to what can be described as the Tailgating Violence or the Great Misunderstanding. The Mother describes at paragraph 13 of her affidavit the tailgating incident of 13 August 2021 and I will recite paragraph 13.
13.At about 5pm on 13 August 2021 I left the house with the children to collect some groceries to make dinner. I was driving in Suburb K and slowed down as there were some children on the side of the road. The next minute I heard a car horn beeping without pause behind me. X was in the back seat and looked around and said "that's Daddy". I kept driving with Mr Marek tailgating me closely, beeping his horn almost constantly. His partner Ms J was also in the vehicle and appeared to be videoing the incident on her phone. Both of them appeared to be smiling and laughing. The children and I were terrified as his driving was intimidating and dangerous. I drove through an amber light and Mr Marek got stuck on the red light. I then called the Suburb L Police Station and told them what was happening and I was told to come straight to the station. X and I were both crying and very shaken and when we arrived as the station, X got out of the car dry-retching. I made a statement to the police who told me that they would consider charges and applying for an IVO on my behalf.
The Father's account of that event is entirely different, and I will recite his account. That is to the effect that, it having been arranged by a policeman that the changeover place would be changed to the Mother's home and that he had coincidentally come across the Mother as he was driving to her home, that he attempted to have her attention drawn to the fact that he was there so that a changeover could occur.
12.Regarding paragraphs 12, 13 and 18, Ms Hotchkiss refused the proposed make up time and did not revert with a reasonable or timely alternative. She could not possibly have been of the view the children were to be in my care as of Friday morning 13 August, given that I had reminded her the Orders state after school (being 3.30pm) and there was no agreement otherwise. It was my understanding the changeover was to be before 6.30pm. Confusion and stress was reigning by then, and communications were not going directly between us. I deny the mother’s version of events. I tooted the horn in an attempt to get her attention with a view to effecting a changeover without following her to, or having to go to, her home. I was quite distressed by Ms Hotchkiss’ breach of orders that day, and I did not intend for, or expect, the situation to blow up the way it has. I did not expect Ms Hotchkiss to react as she did. She suddenly braked, and then drove fast and erratically. I was concerned about the children’s safety, and slowed down. I was not driving dangerously or “tailgating” or acting threateningly. I believe Ms Hotchkiss overreacted, placing the children at risk. I was later advised by police that the children appeared fine at the station and were both being boisterous in the waiting area. The police gave no indication the children were distressed or that X was ‘dry-retching’. I am quite concerned to imagine the nature of Ms Hotchkiss’s reaction, if that was how X in fact responded at any stage. The Police told me that they would not be supporting an application by Ms Hotchkiss for an intervention order, even though she informed me that they would. I do not believe that Ms Hotchkiss is afraid of me at all. My account of events of 13 August 2021 are not ‘complete rubbish’. An event can be seen differently by different people, particularly if it is not possible for one or the other of them to actually know everything that is going on. There was no laughing or smiling on our part, and my partner Ms J did not video anything. I was in the process of collecting the children, which I understood was to occur by 6.30pm. The children not having their belongings with them is neither here nor there. They never bring any belongings to my home, where they have everything they need, other than school bags when collected from school.
The difficulty for the Father on the Rice & Asplund application is that the law requires that I take into account the Mother's account of those events. I cannot, on the Rice & Asplund application, at this point weigh up those two events and determine which one occurred or which one is more likely to have occurred. On the Mother's account, that is a serious event to have occurred in the lives of the children.
The Child Impact Report
I also take into account the child impact report. That report included the following:
1.This report concerns the children X (born in 2013, aged 8 years 7 months and Y (born in 2015, aged 6 years). It has been informed by the review of file material, inclusive of the Application and Response, the Notices of Child Abuse and Parenting Questionnaires. Information for this report has been gathered through separate meetings conducted remotely with both parents on 15 November 2021, and a meeting with X and Y in the form of remote interview and follow up discussions with each parent on the 17th November 2021.
…
4.Although the parent’s communication remained strained post separation, the children reportedly tolerated transitions between the homes and they maintained positive relationships with both parents. Prior to the spend time changes in August 2021, the children spent around 9 nights per fortnight with the mother and 5 nights per fortnight with the father, and alternating weeks in school holidays. The significant change in circumstances in the previous months has likely caused them confusion and reduced sense of stability, particularly Y given her young age and inability to understand her situation and of the adult disputes.
5.X and Y currently reside with their mother, her partner and reportedly have three older adult step siblings. Their father resides with his partner Ms J who has been in the children lives for the past 5 years. The parent’s dispute the quality of the relationship between the children and Ms J. Both children spoke fondly of having the support of a large blended family.
6.X aged 8, presented as a charismatic, engaging, bright and talkative child with the ability to verbally articulate herself beyond her years. Her narrative appeared spontaneous and as she spoke about herself, her relationships, and her experiences of family life with confidence and seemingly balanced views. X described herself as a chatterbox and that she was good at “drawing and painting, being kind and nice and talking”. X took delight in showing her new puppy to Court Child Expert and describing in detail his personality, routines and care needs. X spoke about the importance of her animals to her, speaking excitedly about her dog, cat, rabbits and yabbies. X explained that she worried about school at times and felt as though she had experienced bullying which made her feel sad. X however balanced this discussion about her positive friendships at school and that she thought she was good at maths.
7.Y, aged 6 presented as bright and energetic, distracted by her toys and delighting in showing Court Child Expert her recent birthday presents and balloon. Y’s interview was brief given her young age and was largely limited to her toys, school, her dog, and her birthday. Y advised that she and X often fight over toys and her mum and dad both get angry about this however overall, this she gave a humorous but mostly positive description of both parents, extended family and friends.
8.The parents agree that they have significant differences in parenting approaches, structure, routines, eating and exercise habits between their homes. X described her relationships with her mother, sister and stepfather “Mr H” positively however also noted negatives such as fighting with her sister over toys and her mother getting angry when they fight. X’s narrative also suggested that there are significant differences between her parent’s houses and that she felt less comfortable at her fathers. X advised that she was concerned that her father and Ms J may have difficulty understanding her feelings with regard to this It is important that X feels free to express herself to professionals and that the content of this report is not discussed with her, or that she have any consequences for her narrative.
9.Although speaking of her father largely positively, her narrative suggested that she did not feel close to his partner Ms J. X used the example of Ms J telling her that her school photo was “shocking” and that she would weigh X regularly to see if she was “healthy like Ms J”, often telling her that she was “fat, making her exercise a lot and not letting her eat bread” which made her feel “sad”. X also advised her concern that her father and Ms J would make her cut her hair even though she wanted to keep it long. X held the school photo up to the screen often and was curious as to Court Chid Experts views of how she looked, seemingly pleased when advised the opinion that it was a nice photo. X expressed her view that Ms J was “nasty” to her but “nice” to Y. X appeared to link this to her weight.
…
11.Despite her experience, X advised that she wanted to see her father regularly and proposed each Sunday as a good time but that she did not want to stay there and was cautious about spending time with Ms J. She felt as though time during the week may be stressful as she suggested that it would be best to concentrate on school and sleeping well. X noted that she often worries about the things Ms J says to her at night time and remembering the time in the car where her father followed them, which disturbs her sleep.
12.X and Y’s parents have made mutual allegations of family violence. Ms Hotchkiss recalled the incidents of conflict between them, particularly that of the alleged occasion where Mr Marek followed them in the car. She considered this as being as an example of Mr Marek’s pattern of intimidating behaviours. Ms Hotchkiss alleged that the manner of his driving was dangerous causing her to fear for her and the children’s safety. X in particular was reportedly crying and dry retching due to the level of stress. Ms Hotchkiss alleged that following the incident X saw a medical practitioner who raised concern about what she had disclosed, as outlined in the filed material. X is now attending psychologist appointments to support her emotional wellbeing.
…
14.Mr Marek instead alleged that the mother has a pattern of erratic and physically aggressive behaviour, for example on one occasion allegedly under the influence of alcohol, came to his home uninvited to verbally abuse him, and on various occasions denigrating him and his partner in front of the children, with the use of vulgar language. With regard to the driving incident he reported trying to get the mother to pull over for changeover, not with the intention of intimidation. He was concerned about the mother’s emotionally fuelled response and dangerous driving causing the children distress, if any. Mr Marek however questioned their level of stress as reported by Ms Hotchkiss. Mr Marek advised that the children are being prevented from maintaining a meaningful relationship with their father and are subject to their mother denigrating him, seeking to influence their view of him and his partner.
15.In contrast Ms Hotchkiss reported concerns about the children’s emotional wellbeing in their fathers care, alleging that his decision making and interactions with them are not child focussed. Ms Hotchkiss alleged that the X experiences emotional abuse and body shaming and is expected to withhold information about their experiences from her mother. Ms Hotchkiss was also concerned that the father has involved them in adult matters by seeking multiple welfare checks from the police which has been significantly upsetting for the children. Ms Hotchkiss also advised of understanding that X had disclosed to a medical practitioner being smacked which was reported to Child Protection.
16.Mr Marek advised that he seeks to protect the children from what he views as their mother’s emotionally fuelled behaviour and impaired decision making. For example, Mr Marek raised concerns with regard to the results of the mothers Hair Follicle Test (HFT) being positive for cocaine. Mr Marek also alleged that the mothers own securities about weight have been transferred to X and he was curious as to whether Ms Hotchkiss may benefit from psychological support. Ms Hotchkiss advised that the HFT results were due to a one off celebration three months ago following her engagement and the children were not in her care at the time with her parenting capacity not impacted.
…
18.Regardless of who is the primary instigator of conflict between the parents, the children have been exposed to multiple incidents of conflict over the years. It is plausible that the children’s wellbeing and tolerance to moving between their parent’s houses have been reduced by both parents’ behaviours, despite perhaps innocuous intentions. While the parents have reported the ability to co-parent previously at some level, their pattern of hostile communication has likely been detrimental to the children’s sense of safety and their relationships with each parent and step-parents.
19.Ms Hotchkiss reported that the fathers interactions with Y at supervised spend time have been manipulative. For example telling Y she had more birthday presents at his house so she would want to go his house and placing pressure on X by telling her that Ms J missed her and couldn’t wait to see her. Ms Hotchkiss reported that X has been struggling emotionally following the visits, clingy to her mother and insisting on sleeping in her room. Mr Marek however reports that the visits are positive and he remains concerned that the mother is hypersensitive to what the children say, instead of respecting the importance of his role as a parent and seeking to understand the context of conversations.
25.Mr Marek and his partners’ healthy lifestyles may have an impact on X’s self-esteem and body image, leading to a feeling that she was required to make changes to herself to be accepted by them. Mr Marek has advised that their conversations have been related to health, not weight or appearance. Yet in a young girls mind, approaching puberty it would be reasonable for her to be sensitive to such conversations and it is possible that perhaps his intentions have not transferred to the intended experience for X. It is also possible that in amidst complex dynamics, Ms Hotchkiss experiences of Mr Marek has caused her to be hypersensitive to any comments made towards X.
26.However, if such conversations were occurring with X, it would likely have significant impact on her opportunity to develop positive body image and self-esteem at a crucial time in her pre-pubescent development. X will benefit from conversations with her parents that concentrate on her positives and strengths. This will provide reassurance and encouragement to support her to form positive self-esteem and confidence. For example, X sang Court Child expert an Ed Sheeran song beautifully and she delighted in positive feedback and encouragement.
…
28.The children are both at very vulnerable stages in their development, if they continue to be exposed to high conflict parenting dynamic, X and Y are at risk of poorer emotional and developmental outcomes. They require their parents to be able to focus on, and be responsive to, their needs even when they are experiencing high levels of distress or frustrations themselves. X and Y require commitment from their parents to understand the impact of their behaviours, and to ensure that their responses and attitude towards the other are respectful.
The child impact report was ordered on 4 October 2021 and undertaken on 15 and 17 November 2021. The report demonstrates a great concern about the conflict between the parents and its impact upon the children and the disruption for the children of the significant change in circumstances of their time with their father ceasing. Following the Tailgating Violence or the Great Misunderstanding, the Father's time was effectively suspended and the parties commenced intervention order proceedings. In addition to that, there are now pending contravention proceedings, and they are fixed for hearing in the following year. I note that both children were interviewed for the purpose of the child impact report. To the extent that part of the purpose of a Rice & Asplund hearing is to avoid the intrusion into the children's life of a professional unknown to them interviewing them, that has already occurred at this point, but occurred as a consequence of the Court order.
I also note that the section 67Z response states that:
Y and X are not considered to be at a level of risk in Ms Hotchkiss or Mr Marek's care that would warrant Child Protection involvement. The case will be closed at intake phase.
But, of course, whether there is an assessed level of risk such as to warrant the involvement of Child Protection is not the test. The Father's material also includes serious allegations of an unhappy state of affairs developing through 2019, 2020 and into 2021. Those events include what are the uncontested emails sent by the Mother to the Father on 15 November 2019 to which I have referred to above, and which are at paragraph 18(h) of his affidavit of 1 October 2021.
The Father also deposes to four significant events. He alleges in April 2020 that the Mother's alcohol consumption was such that the child were left in the care of someone who the Mother had only met that day and that the Mother was agitated and struck X with force.
The Father alleges that on 8 June 2020, the Mother came to the Father's home uninvited, rang the doorbell, that she was intoxicated and that the child X told the Father that following the Mother driving off at speed that the Mother had been seen drinking vodka.
In January 2021 (this is the controversial first day of school) there was a confrontation between the parents. The Father alleges the Mother aggressively and threateningly screamed at the Father to give Y to her and that the Mother had forcefully snatched the child's hand away and it was a heightened and volatile scene. I should indicate, I am not relying upon the Father's most recently filed affidavit that adds further detail to the 25 April event given the lateness of its filing.
In dealing with the Father's Rice & Asplund application that there is a continuation of appalling behaviour and trying to set the scene as to what the state of affairs was at the time of the orders, I was referred to the family report of Ms M, a family consultant, and experienced family dispute resolution practitioner who had prepared a family report dated on 27 November 2017. I was referred to paragraph 52 of that report. The counsel for the Mother's brief did not include that family report. I was referred to the page including paragraph 52 which is as follows:
52.The children were assessed as having warm and affectionate relationships with both their parents. If, as was stated by the parents, there have been past indications of insecurity being experienced by X, it was likely to be related to the conflictual tensions between the parents that she may have observed or felt. As for the younger child, Y, while she demonstrated a warm and loving relationship with both her parents, her behaviour as described by the mother was a clear indication of her experiencing some difficulties each fortnight with the length of time away from her mother. It was considered important to assist her with those feelings by returning to the schedule of two consecutive nights, at least for the next twelve months. It was therefore suggested that Y would better manage two consecutive nights per week, i.e. more time overall but shorter periods.
Paragraph 51 of that document also states:
51.The mother looked forward to sharing the parenting responsibilities with the father and was focussed on ensuring that the arrangements suited the children's emotional needs as they developed. She was assessed as committed to ensuring the children's continuing positive relationships with their father rather than having punitive intentions towards him.
I have not referred to the balance of that report as it was not referred to me and the parties did not both grasp that document, save for the parts to which I have referred. The orders of 7 November 2018 provide information from which I can infer something about the state of the parties' relationships. The orders were made by consent. They included that the parents have equal shared parenting responsibility. There was a detailed schedule of time for the children to spend with the Father and ending up in what was the arrangements of essentially a five/nine arrangement with half school holidays at the time of the disputed event of the Tailgating Violence or the Great Misunderstanding.
Based upon those two paragraphs that I have quoted of the family report and the 7 November 2018 orders I can infer what was intended by the parties by the consent orders of 7 November 2018. I infer that the parties were at the time of the orders making good attempts to resolve their personal antagonism to each other for the benefit of the children and there was at least the bare bones of a cooperative parenting arrangement and the parents intended this to continue.
I take the Mother's evidence at its highest for the purpose of the Rice & Asplund test. I again note the matters that I have referred to in the Mother's affidavit, and in the parts that I have quoted from the child impact report. I find that there has been, on the papers, and taking the Mother's evidence at its highest, a sufficient change of circumstances that unfortunately justifies further litigation that means I cannot accept the Father’s Rice & Asplund application and dismiss the Mother's application for final orders at this point.
Notwithstanding that, there was substance in the counsel for the Father's submissions that the Court cannot fix the problems that these parents have in their communication and what was the point of having court orders to order otherwise high functioning people to do what they should otherwise do as proper parents and attend courses. Notwithstanding the substance of that, it cannot be said that at the time of the final orders it was contemplated that the state of affairs as described in the Mother's affidavit would continue. Hence, I dismiss the Rice & Asplund application at this point.
INTERIM ORDERS
I now come to the competing orders between the parties. Hence, I am now dealing with an interim hearing and an interim hearing on the papers. I now attempt to apply the principles of Goode & Goode [2006] FLC ¶93-286, including paragraphs 78 and paragraph 82.
At this point, I do not accept the Mother's allegations at their highest as a matter of law. At this point, I am required by law to determine the dispute as to the interim hearing by relying upon uncontested or agreed circumstances or and not necessarily applying the same weight to competing contested allegations. In this circumstance, I place considerable weight upon the child impact report. The child impact report was very concerned as to the disruption of routine between the parents and the children and the potential for the conflict between the parents to impact upon the children.
The conclusions of the report at paragraph 33 ultimately determine that the Court would benefit from consideration of collateral information and making findings about the disputed events, including the allegations that X is subjected to emotional abuse by her Father and partner. It was also asserted that X would benefit from continuing the existing therapeutic pathway. That report was undertaken following interviews on 15 and 17 November 2021.
The Supervision Observations
In addition to that information I have the information from the supervised time. I should again make it clear that for the purpose of the decision that I am now making, that is, the dispute as to the interim orders I cannot determine the factual disputes between the parents.
I note that the Mother has tested positive for cocaine and it is intended by both parties that she will undertake a further cocaine test.
The parties had agreed that there should be supervised time undertaken. From the Father's perspective, that was the only time he was able to achieve with his children. From the Mother's perspective, that time and supervision was necessary for the benefit of the children.
The first supervised visit
The supervisors observations include:
The worker initially contacted Ms Hotchkiss on the 04.11.2021 with a time (10am – 2pm). The worker organized a visit for a 4 hour period however the mother pushed back on the amount of time and stated that 2-3 hours was going to be the maximum amount of time that she was going to allow. The worker then contacted the mother with a new set time (9:30am -12:30pm) and a location – Suburb N Park. The mother said that she wasn’t allowing anything in Suburb N and would only allow O Reserve in Suburb P.
What the Mother said to the children on the first occasion, at the start of that supervised time, can either be seen as supportive of the children's relationship with the Father or either unknowingly or intentionally undermining it. The Mother commented to the children and I will quote that:
Y mentioned that she didn't want to go to her father's house. The worker reassured Y it was only going to be at the park to play. They separated without hesitation from Ms Hotchkiss and mother’s partner ‘Mr H.
Ms Hotchkiss commented to the children, “I understand you aren’t wanting to be here, but why don’t you give it a try, and see how you go?”
The children were on the swings at the park when father arrived. X and Y instantly jumped off and ran towards their father, wrapped their arms around his waist and gave him a big hug. The father returned the affection and also gave them a kiss.
I take into account all of the observations, not only the ones that I am quoting. I do take into account that the Father had bought, in my view sensibly, presents and things to entertain the children. The Mother subsequent to this report swore an affidavit regarding the Father's presentation of presents as manipulative. On this interim hearing I cannot accept that or make that finding. The Father did tell the children initially that the presents were to be gifts for “Daddy's” house. That is, not in the Mother’s house. Y managed to negotiate with the Father that she could take the present home and bring it back. However, it is significant that the children themselves suggested during this supervised visit that they go to “Daddy's” house. At the end of the visit both children became emotional and expressed that they were not ready to leave, and I will quote from the report:
Y mentioned that she wanted to go back to her father’s house because she wanted to open up more presents and have a birthday party there… X expressed that she wanted the next visit to be all day, not just 3 hours.
And I will quote the discussion with the Mother's partner, Mr H, who raised the difficulty about the further visit because it might conflict with a camping trip.
The worker followed up with whether the children were available to have a visit the following week to which the mother mentioned she’d have to check her own schedule. While the mother’s partner Mr H was in the car, he stuck his head out and mentioned that they were going camping the following weekend and it wasn’t going to be possible. It seemed apparent to the worker that mother was unaware of upcoming camping trip her partner had mentioned.
The second supervised visit
The second visit was on 14 November 2021, and I quote the observations:
The children ran towards Mr Marek as soon as they saw him, exchanging hugs and kisses on arrival. Mr Marek mentioned how much he had missed them and handed them a bottle of water each, in preparation for the movie.
…
X and Y asked their father when they were allowed to go back to his house. Mr Marek mentioned that he missed them a lot and was currently working on having them over again, but hopefully soon. During this time, X, Y and Mr Marek conversed and bonded well, laughing at past memories the father was sharing with X and Y.
And I will quote the ending time:
… The father accompanied the children and worker towards the meeting point. Mr Marek said goodbye to the children. The children gave their father a kiss and a big hug, saying “I love you” to each other. Mr Marek departed shortly after.
The report includes a summary which is an opinion of the observations. I place only a little weight on the opinion of the report writer as to those observations. But I place considerable weight on the actual observations of what occurred and I draw my own opinion about the consequences of those observations. It is clear that the children were excited to share their experience and the toys that they had purchased. The children were excited in sharing their evening with their Father. No risk issues were identified. There were two successful visits and the Father did demonstrate positive parenting skills. The children did demonstrate an established and loving connection with their Father. I do note the child impact report reports X as observing that she would be comfortable seeing her Father during the day only.
It is clear that a factual dispute in this case between the parents is, firstly, the extent of the children's reluctance to see their Father as set out in the Mother's affidavit. That is what the Mother describes as an increasing battle. Secondly, to the extent that it is occurring, why it is occurring. The Father's case is that it relates to the Mother's antagonistic relationship to him and his partner. The Mother's case is that it is an inevitable reaction of the children to the emotional abuse that she says is being wreaked upon them.
Application of the Family Law Act 1975
In this case I also must apply the whole of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) (including section 60CA and 60CC(1), (2), (2A) and (3)(a)-(m) and I do). I do not make any findings about the Violent Tailgating or the Great Misunderstanding, save that there was an interaction between the parents and the end result is that the parents have interpreted that event completely differently. It may be that neither of them are exaggerating or lying but telling the event only from their own experience. On the other hand, one of them might be telling me barefaced lies and I cannot determine that at this point. But I do find from the evidence that the children do have an established relationship with their Father and that they have been enjoying significant time with their Father since the final orders were made.
I then must consider the presumption.
In this case, there are serious allegations of family violence and on an interim hearing in the circumstances of the allegations both ways between the parties, taking those into account, there are reasonable grounds to believe (that is the test of 61DA(2)), that one of the parents has engaged in family violence. That does not mean that it is the Father, but there are reasonable grounds here to believe that one of these two parents, one or both of them have engaged in family violence. That test of 61DA(2) is, on an interim hearing, a lower test than a finding on the balance of probabilities that that has occurred, and that test is solely for the purpose of whether the presumption should apply. So I do not apply the presumption.
Nonetheless, I have an extant order for equal shared parental responsibility. It is implicit in the Mother's case that that should be disregarded at this point. The orders the Mother seeks is that paragraphs 4 to 9 of the final orders are suspended. The Mother does not seek that the order for equal shared parental responsibility be suspended, and sensibly so on an interim hearing in the sense that I cannot possibly make findings that would deal with that. Hence, I have the circumstance that on either party's orders that they seek at this point, there will be the continuation of an order for equal shared parental responsibility.
I then must determine on this interim hearing the position of section 65DAA and consider equal time. Section 65DAA states:
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Consent orders
(6) If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Note:Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.
Neither parent seeks equal time and it can only be applied if it is reasonably practical and if it is in the children's best interests. However, I must consider and consider positively (and I refer to the decision of Dundas & Blake (2013) FLC ¶93-552), the children spending substantial and significant time, if it is reasonably practicable. The existing orders provide for substantial and significant time. The parties have demonstrated that absent the appalling parental relationship between them, the nuts and bolts of the children's time is reasonably practicable, and I must consider that.
I then consider the best interests of the children and the benefit of the children maintaining a meaningful relationship with the Father and the need to protect them from emotional or psychological abuse. By section 60CC(2A) I must give the protective primary consideration greater weight than the maintaining the relationship consideration.
In this case, the evidence demonstrates that it is in the children's interests to maintain a meaningful relationship with their Father and, indeed, that is now common ground given the Mother's position contained in M1, (the minute of the orders that she seeks), which is that there be unsupervised daytime only time. I also need to consider all of the additional considerations. The evidence demonstrates a risk to the children's emotional welfare when the parents are in the same vicinity. I cannot make findings about the events when the parents are together in the same vicinity, but there is contested evidence of the children being exposed to family violence when the parents are in the same vicinity.
Considering the relationship between the parents and the children, I find that the children have a close and appropriate relationship with both parents. The nature of the relationship observed in the supervised time is the primary matter that I place weight on in the circumstances where I cannot otherwise make factual findings. It is my determination that the time imposed in the existing orders should be put back. In other words, that is going to commence from hereon. I do not know where that is in the cycle, but that is going to commence. It should commence with the time being on the shorter period of time before moving to the full weekend time if possible. I do not have the information as to how that will occur. I do not have information as to where that cycle is up to.
In terms of the other orders, looking at the Father's orders, I will make order number 1. I will not make order number 2 in regard to a parenting coordinator because I am persuaded to make the order number 13 of the Mother's minute that the parents should engage in family dispute resolution at their shared expense. I am not dismissing the benefit to these parties of the “parenting coaching”. I do not have any evidence as to what is contained in that concept, who would do it and when. My understanding of the concept is such that I think it is a good idea, but I am not going to impose it on the parties at this point in the circumstances where I am going to impose family dispute resolution on them. That did not occur here. It is common ground that the parents should undertake the Tuning Into Kids course and the Parenting Orders Program.
So then going to the Father's minute, I will make orders 1. I will make order 3. I will make order 5. I dismiss or do not make order number 6. Turning to the Mother's minute, I will make the hair follicle test in the terms as sought by the Mother as in order number 4 through to number 8, but I will add the requirement that the testing facility be provided with a copy of the order ordering that. I will not make order number 9 (men’s behavioural change program). The Father has told the child impact report process that he intends to undertake such course. I am not going to order that he do so, but I am placing weight on what he announced his intention was. I will make order number 11, the non-denigration order, because I am concerned at the extent of the parties abusing or denigrating each other. I will not make order number 12 relating to the haircutting. The evidence in regard to the haircutting incident precedes the final orders that were made. I will make order number 13. I will make order number 14. Subject to asking the parties whether there is any objection to a further qualification to that order, there are two other orders that I intend to make which I will give you the opportunity to address on.
I will otherwise fix this matter for final hearing at the next available time in my list for 3 days. It will be in March 2023. I will order a family report to be undertaken in or about November 2022 depending upon factual findings different orders may be made at that time. I will not bring the matter back before me for further interim hearing. I am proceeding on the basis that the Mother's next hair follicle test will demonstrate what she says it will and that is that she has been abstinent. In the event that it does not, or in the event there are other unfortunate events, the parties will have the usual position to make application before me.
The further matter that I want to raise in regard to number 14 and that the communication between OurFamilyWizard - I have not given the parties a chance to respond to this, but I am contemplating making an order that the communication via OurFamilyWizard must be between the parents and not their partners. Further, I am contemplating, but I do not know the practicalities of it, making an order that changeovers that are to be at Caltex, that is, not at school are to be with the parents present and not partners present, and that there is not to be filming changeovers. I have not given the parties an opportunity to contemplate that and I will.
Further submissions after reasons delivered
Following the delivery of the above reasons I gave the parties an opportunity to take instructions and make submissions about the matters I raised in the preceding paragraphs and the usual rotation of the existing orders. Neither party objected to those two matters and further submissions were made as to when the time would recommence. The days I provided these reasons was in the middle of the shorter two night period. The children were at school and I determined that the time should not start that evening because neither the Mother nor the children had been prepared for that change in arrangements. Balancing the potential for upset in the Mother’s household, including to the children, I decided a further short delay in the resumption of time was preferable.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 30 November 2021
2
0