JARMIN & ELSTONE (No.4)

[2018] FCCA 4003

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARMIN & ELSTONE (No.4) [2018] FCCA 4003

Catchwords:
FAMILY LAW – Practice and procedure – evidence – evidence of historic criminal assault and neglect of child – subsequent final orders by consent – objection to reception of evidence about those historic matters in a new trial – relationship with rule in Rice & Asplund – objection overruled.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund (1978) 6 Fam LR 570

Applicant: MS JARMIN

Respondent: MR ELSTONE

File Number: ADC 3605 of 2015

Judgment of: Judge Young

Hearing date: 15 August 2018

Date of Last Submission: 15 August 2018

Delivered at: Adelaide

Delivered on: 15 August 2018

REPRESENTATION

Counsel for the Applicant: Mr McQuade

Solicitors for the Applicant: Daniel Johns Lawyers

Counsel for the Respondent: Ms Spence

Solicitors for the Respondent: Adelaide Lawyers

Counsel for the Independent Children’s Lawyer: Ms Du Barry

Solicitors for the Independent Children’s Lawyer: The Family Law Project 

IT IS NOTED that publication of this judgment under the pseudonym Jarmin & Elstone (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3605 of 2015

MS JARMIN

Applicant

And

MR ELSTONE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

(Ruling)

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

2. The question from Ms Spence related to conduct in 2013, and before that 2012, in the lead-up to [X], who is seven years old, suffering a spiral fracture of the arm which, it is agreed by the parties, was deliberately inflicted, in all likelihood by another human being.  Who inflicted it is unclear.  Mr McQuade asserts, notwithstanding that a trial has commenced, the rule in Rice & Asplund precludes cross-examination of a witness about events prior to a consent order.

3. A consent order was made between these parties in February 2017 where [X] was to live with the mother and spend time with the father.  Mr McQuade asserts that in those circumstances a court is somehow precluded from examining events prior to those consent orders, and, as I say, he relies on what he asserts is the rule in Rice & Asplund.  I do not consider that he properly states the rule in Rice & Asplund.  The rule in Rice & Asplund is, of course, intended to avoid repetition of litigation that is unlikely to be in the best interests of a child and the policy ground of the rule is well understood.

4. Very often, repetition of litigation in parenting matters, where the ordinary rules of issue or estoppel or res judicata do not apply, ordinarily would not be in the interests of a child. However, the rule in Rice & Asplund is intended to recognise that sometimes further litigation is necessary in the best interests of a child. The rule has been variously stated. Sometimes it requires a change in circumstance or a new fact or something of that kind but it is not like the strict rule permitting fresh evidence on an appeal, as I understand it.  The fact that some material may have been known to the parties prior to an earlier order does not necessarily preclude an investigation of that material.  I am satisfied that that is particularly the case in circumstances such as those that the court is dealing with here. 

5. As I mentioned, there were consent orders in February 2017 between these parties. After the consent orders in February 2017 the mother withheld the child in March and April 2017 following what was said to be disclosures of sexual abuse of the child by the father and the father’s partner.  The claims of sexual abuse were apparently made by the child to a therapist, Dr A, as well as the maternal grandmother and, if I recall, the mother herself.  Those allegations resulted in a police forensic interview of the child in about June 2017. The agreed position of the parties is that the child did not repeat his claims and the police did not pursue the matter any further.

6. After I heard an interim hearing about that last year but before I could make orders for the resumption of the child’s time with the father, further material was filed by the mother relying on, I will call it a “meltdown”, but some very serious dysfunctional behaviour by the child at his school after returning from time with his father.

7. A report was tendered from Dr A who was providing therapy to [X]. Dr A expressed the opinion that the child was terrified of his father and that was the reason for the dysregulated behaviour.  Dr A also said that the child had expressed an intention to self-harm or made threats of suicide.

8. I said at the end of that interim hearing - in fact, I think there were three interim hearings before the trial - that I was satisfied that, given that history, the rule in Rice & Asplund was satisfied and that it was “on the cards” or there was a real possibility that there may be a change in existing orders and I made an order for a family report.

9. In the family report which was released early this year the family consultant expressed very serious reservations about the mother’s functioning and her capacity.  The family consultant conducted an observation which was entirely at odds with the opinion expressed by Dr A and suggested that it was necessary in the best interests of the child that the child’s resident arrangements be changed as a matter of urgency and he live with the father.

10. The mother also relied on a psychologist’s report from a Dr B at that time and Dr B, who was providing therapy to the mother, indicated in some aspects of her report some degree of congruence, if not agreement, congruence at least with some of the opinions expressed by Dr C about the mother’s parenting capacity and her relationship with the child.

11. All of that should be seen against a background that in 2013, as I say, [X] was deliberately injured by some other person on at least one occasion resulting in a spiral fracture of the arm.  There was evidence that he had other older bone injuries as well. 

12. I would have considered that of in itself those matters amply satisfy the requirements of the so-called rule in Rice & Asplund in that the situation merited reconsideration by a court.

13. In cross-examination yesterday, the mother told the court that, in effect, she had mislead the police during the investigation into the injuries in 2013 in order to protect Mr D.  I am not aware that that concession has been made at an earlier point.  Indeed, the mother’s trial affidavit, on one interpretation, suggests that she simply had no idea that Mr D had ever sought to harm [X], which would not explain her concession yesterday that she had sought to protect Mr D from police investigation.

14. In all of the circumstances, I am satisfied that there are multiple new, significant and grave factors that require reconsideration of the parenting arrangements for this child.  Given that the rule in Rice & Asplund is applied according to the circumstances of each particular case, that is, it may be that only aspects of the prior parenting orders are reopened, for example, time. It may be in some circumstances that the whole of the parenting arrangements have to be reconsidered. In the circumstances of this case, I am satisfied that the latter situation applies and that the whole of the parenting arrangements need to be reconsidered.  That being the case, I can see no limitation, really, on the ambit of the inquiry required, and a question such as the one that was objected to relating to injuries received by the child in 2012 appears to me to be permissible.  I overrule the objection.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 31 May 2019