Katten & Katten
[2022] FedCFamC2F 187
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Katten & Katten [2022] FedCFamC2F 187
File number(s): MLC 2246 of 2019 Judgment of: JUDGE MCNAB Date of judgment: 23 February 2022 Catchwords: FAMILY LAW – application by grandmother for enforcement of spend time orders with grandchild – orders not followed by mother – whether it is in the best interests of the children to enforce prior orders or make fresh orders discharging final parenting orders – rule in Rice & Asplund – leave granted for the mother’s application to proceed for final parenting orders to be discharged. Legislation: Family Law Act 1975, (Cth) s 68L (2). Cases cited: Aldridge & Keaton (2009) FLC 93-421
Bonner & Chandler [2021] FedCFamC1A 81
CDJ v VAJ (1998) 197 CLR 172
Church & Overton & Anor [2008] FamCA 953
Maldera v Orbel (2014) FLC 93-602
Marsden & Winch [2009] FamCAFC 152
Reid & Lynch [2010] FAMCAFC 184
Rice & Asplund [1978] 6 Fam LR 570
SPS & PLS [2008] FamCAFC 16
Valentine & Lacerra & Anor (2013) FLC 93-539
Watson & Watson [2018] FCCA 1791
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of last submission/s: 9 November 2021 Date of hearing: 11 November 2021 Place: Melbourne Counsel for the Applicant: Mr T Byrne Solicitor for the Applicant: Marcou and Associates Pty Ltd Solicitor for the Respondents: Hartleys Lawyers ORDERS
MLC 2246 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KATTEN
Applicant
AND: MS KATTEN
First Respondent
MR HANSEN
Second Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
23 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Mother have leave to proceed to seek to obtain the orders set out in her amended application filed 16 April 2021.
Trial date
2.These proceedings are listed for final hearing before his Honour Judge McNab at 11.00 am on 15 March 2022.
Hearing fees
3.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 (Cth).
4.The Applicant and the Respondent must pay the setting down and hearing fees in equal amounts (or seek an exemption) not later than 4.00 pm on 14 days prior to hearing Regulation 2.03 of the Family Law (Fees) Regulation 2012 (Cth).
Material to be filed
5.Not later than 4.00 pm on 3 March 2022 the parties are to file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021
6.Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at the final hearing without the leave of the Court.
7.Not later than 4.00pm on 7 days prior to hearing each party file and serve an outline of case document including the following:
(a)A list of the documents to be relied upon;
(b)A brief chronology;
(c)An outline of contentions and summary of argument with respect to:
(i)whether the presumption of equal shared parental responsibility applies (s.61DA),
(ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);
(iii)each of the considerations relevant to determining the best interests of the children (s.60CC factors);
(iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and
(v)any other matters relevant to the decision; and
(d)List of authorities;
(e)A list of tender documents; and
(f)A minute of orders setting out the precise orders sought.
8.Not later than 4.00 pm on 7 days prior to hearing the parties are to confer and prepare, and the Applicant is to forward to the Chambers of his Honour Judge McNab.
(a)A joint chronology in Microsoft Word format setting out all agreed facts that the parties ask the Court to take into account; and
(b)A trial plan.
Costs Disclosure (Rule 12.14 Federal Circuit and Family Court of Australia (Family Law) Rules 2021)
9.Not later than 4.00pm 7 days prior to hearing the lawyer for each party must give the party a written notice of:
(a) the party's actual costs, both paid and owing, up to and including the trial; and
(b)any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses; and
(c)on the first day of trial,
a party's lawyer must give to the court and each other party a copy of the said notice given to the party.
Electronic Court/Trial Book
10.On or before 4.00 pm 5 days prior to the hearing the parties must:
(a)eFile on the Commonwealth Courts Portal a Court/Trial Book (Tender Bundle) being the material each party intends to rely upon at final hearing as follows:
(i) Case Outline document setting out:
A.List of documents;
B.Chronology;
C.Outline of submissions and contentions with respect to the relevant legislation;
D.List of authorities; and
E.The respective Applications, Responses, or Minutes of Orders setting out the orders sought by each party;
(ii) The Affidavit/s relied upon by the party for final hearings: noting the provisions of Rule 5.08 Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
(iii) Any other material the party seeks to rely upon at hearing,
with such documents to be consecutively paginated.
(b) Forward to [email protected] certification that:
(i) The Court/Trial Books have been eFiled; and
(ii) The matter is ready to proceed for final hearing.
11. The question of the costs of this application be reserved.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Annexure 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 (Cth) 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 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: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal 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 the pseudonym Katten & Katten is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge McNab
INTRODUCTION
On 21 November 2019, the Court made final orders (“Final Parenting Orders”) in relation to the Applicant Maternal Grandmother spending time with the child, X born in 2014 (‘the child).[1]
[1] Katten & Katten & Anor (2019) FCCA 3369 per Blake J.
The applications that come before the Court are the Grandmother’s amended initiating application filed on 16 April 2021 and the First Respondent Mother’s amended response filed on 6 May 2021. The hearing on 11 November 2021 was to determine the issue as to whether the Mother could proceed to seek the orders set out in her amended response seeking that Final Parenting Orders be discharged having regard to the rule in Rice & Asplund.
The Grandmother is 55 years old and is a pensioner.
The Mother is 29 years old and is engaged in home duties. She also has the care of another child, Y born in 2020. The Grandmother is no longer pursuing orders in relation to the child Y.
The Second Respondent Father is 36 years old and his occupation has not been disclosed. The Mother and Father separated on a final basis in or around December 2019. The Father has played no part in this application.
PROCEDURAL BACKGROUND
I set out the procedural background in some detail to demonstrate the change in positions adopted by the parties and the reasons behind the interim hearing on 11 November 2021.
The Grandmother filed an initiating application for final orders on 9 September 2020 seeking the following relevant orders:
1.The Final Federal Circuit Court Orders of 21 November 2019 remain in full force and effect, save for the following amendments:
a. Order 2, be amended to read ‘The children, X, born in 2014 (‘X’) and Y born in 2020, live with the first respondent Mother.’
b. Order, be discharged and amended to read ‘Changeover to occur in the foyer of the Suburb D Police Station (Address: E Street, Suburb D), or as otherwise agreed between the parties in writing.’
c. Order 5, be discharged.
d. Order 6, be amended to read ‘The Applicant be permitted to send cards and gifts to X and Y on their birthdays and at Christmas.’
The Mother filed a response to the initiating application on 1 December 2020 seeking the following orders:
1.That the parents have equal shared parental responsibility for the Children, X born in 2014 and Y, born in 2020.
2.That the children live with the Mother.
3.That the Final Orders dated 21 November 2019 be discharged.
4.That there be no order for the children to spend time with the Applicant Grandmother until such time as:
a. The Applicant Grandmother enrols and completes an Anger Management Course and provides proof of completion of the program to the Mother’s solicitor.
b. That the Applicant Grandmother completes family violence counselling and provides proof of completion to the Mother’s solicitor.
5.That the Applicant Grandmother forthwith do all acts and things necessary to undergo a psychiatric assessment by such person nominated between the respective solicitors in writing and a report of the assessment be made available to the other parties within 7 days of the report being made available and it is requested that this be funded by Victoria Legal Aid.
6.That if in the future that Children are to spend time with the Applicant Grandmother it be supervised at a nominated contact centre as agreed between the parties.
7.That for the purpose of the Applicant Grandmother’s supervised time the parties do all such things necessary to enrol in the nominated Contact Service.
On 9 December 2020 the Court made orders:
1.Order 6 of the Orders made on 21 November 2019 be amended to read ‘The Applicant be permitted to send and gifts to X and Y born in 2020’.
2.The proceeding be adjourned to the Federal Circuit Court of Australia at Melbourne on 26 March 2021 at 10.00am for Interim Defended Hearing.
On 26 March 2021 the Court made the following orders:
1.The Applicant file and serve any amended application within 21 days of the date of this order.
2.The Respondents file and serve any Response within 42 days of the date of this order.
3.The Applicant file and serve any further affidavit/s in support by 1 September 2021.
4.The Respondents file and serve any further affidavit/s by 15 September 2021.
5.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 1 October 2021 at 10.00am for Interim Defended Hearing.
On 16 April 2021 the Grandmother filed an amended application seeking the following orders:
2.The Final Federal Circuit Court Orders of 21 November 2019 remain in full force and effect, save for the following amendments:
a.Order 4, be discharged and amended to read ‘Changeover to take place and be facilitated by MR F collecting the child from the First Respondent Mother’s residence at the commencement of time, or at another location as otherwise agreed between the Applicant and First Respondent in writing’
b.Order 5, be discharged.
c.Order 6, be amended to read ‘he Applicant be permitted to send cards and gifts to X and Y born in 2020, with the gifts to be sent directly to the First Respondent Mother and the First Respondent Mother is to confirm receipt of the gifts within 7 days of receiving same.’
3.In the instance that MR F is deemed to be an inappropriate changeover facilitator by the Honourable Court, then references to Sunday in the Federal Circuit Court Orders of 21 November 2019, specifically orders 3(a) and 3(b) be amended to read Saturday instead.
4.Any other orders as deemed appropriate by the Honourable Court.
On 6 May 2021 the Mother filed a response to the amended application seeking the following final and interim orders:
Final Orders Sought
1.That the parents have equal shared parental responsibility for the Child, X born in 2014.
2.That the child live with the Mother.
3.That the Final Orders dated 21 November 2019 be discharged.
4.That the child spends time with the Applicant Grandmother as agreed between the parties in writing.
Interim Orders Sought
1.That the parents have equal shared parental responsibility for the Child, X born in 2014.
2.That the child live with the Mother.
3.That the Final Orders dated 21 November 2019 be discharged.
4.That there be no order for the Child to spend time with the Applicant Grandmother until such time as:
a.The Applicant Grandmother enrols and completes an Anger Management Course and provides proof of completion of the program to the Mother’s solicitor.
b.That the Applicant Grandmother completes family violence counselling and provides proof of completion to the Mother’s solicitor.
5.That the Applicant Grandmother forthwith do all acts and things necessary on to undergo a psychiatric assessment by such person nominated between the respective solicitors in writing ad a report of the assessment be made available to the other parties within 7 days of the report being made available and it is requested that this be funded by Victoria Legal Aid.
6.That if in the future the child is to spend time with the Applicant Grandmother it be supervised at a nominated contact centre as agreed between the parties in writing.
7.That for the purpose of the Applicant Grandmother’s supervised time the parties do all such things necessary to enrol in the nominated Contact Service.
8.Pursuant to Section 68L (2) of the Family Law Act 1975, the Child be independently represented and it is requested that Victoria Legal Aid fund the appointment of an Independent Children’s Lawyer.
9.That without admitting the necessity of such order, the parties, their servants and agents be and are hereby restrained by injunction from:
a.denigrating each other and their families to or in the presence or hearing of the Child or any of them and permitting any other person to do so;
b.passing messages through the Child to the other parent;
c.discussing parenting disputes and/or issues with or in the presence of the Child or any of them permitting any other person to do so;
d.exposing the Child to any conflict between the parties and their families and permitting any other person to do so; and
e.from discussing the court proceedings including any ancillary proceedings with or in the presence or hearing of the Child or any of them and permitting any other person to do so.
On 3 August 2021 orders were made referring the matter to FDRS and to a compliance hearing before Registrar Campbell to be conducted on 16 December 2021.
The matter came before the Court on 1 October 2021 listed as an interim hearing. By an outline of case document filed on 20 September 2021, the Grandmother sought the following orders:
1.The Final Federal Circuit Court Orders of 21 November 2019 remain in full force and effect, save for the following amendments:
a.Order 6, be amended to read ‘The Applicant be permitted to send cards and gifts to X and Y born in 2020, with the gifts to be sent directly to the First Respondent Mother and the First Respondent Mother is to confirm receipt of the gifts within 7 days of receiving same.’
2.Any other orders as deemed appropriate by the Honourable Court.
The Mother filed a case outline on 29 September 2020 seeking the following orders:
1.That the parents have equal shared parental responsibility for the Child, X born in 2014.
2.That the child live with the Mother.
3.That the Final Orders dated 21 November 2019 be discharged.
4.That the child spends time with the Applicant Grandmother as agreed between the parties in writing.
Orders were made on 1 October 2020 adjourning the hearing of the interim application to 11 November 2021, with orders being made for the parties to file updating affidavit evidence and case outlines. The orders include the following notation:
At the hearing on 11 November 2021 the Mother must satisfy the Court that the Rice & Asplund issue is satisfied and that it is appropriate and in the interest of justice for the Court to reconsider the final orders made in this matter on 21 November 2019.
The matter came before the Court for interim hearing on 11 November 2021. By her case outline filed on 9 November 2021, the Grandmother sought the following orders to be made:
1.The Final Orders of 21 November 2019 remain in full force and effect, save that:
a.All time between the Applicant and the child X born in 2014 (“the child”) be suspended until such time as the G Contact Service (as named in the Final Orders) (‘the changeover service’) can facilitate changeover;
b.On the first Sunday following the commencement of the changeover service’s ability to facilitate changeover, time pursuant to Order (5)(a) of the Final orders shall commence;
c.Three months after the commencement of time between the Applicant and the child, time pursuant to order (5)(b) of the Final Orders shall commence.
d.That no later than fourteen (14) days after the making of these Orders, the Respondent Mother shall nominate three contact centres that can facilitate changeover with regard to time under Orders (3)(c) and (3)(d) of the Final orders, with the Applicant Grandmother to select one.
FACTUAL BACKGROUND
After commencing a relationship and cohabitation in or around 2013, the Mother and Father separated in around 2014. In 2019 the Mother and Father recommenced their relationship (noting the child was born in 2014).
Pursuant to [3]-[5] of the Final Parenting Orders the Grandmother was to spend time and facilitate changeover with the child as set out below:
3. X spend time and communicate with the Applicant Maternal Grandmother:
(a)for the first 3 months, for 2 hours on one Sunday per month at times as agreed between the parties but failing agreement from 11am until 1pm commencing on Sunday, 1 December 2019;
(b)thereafter, for 3 hours on one Sunday per month at times as agreed between the parties but failing agreement from 10am until 1pm commencing on 1 March 2020;
(c)commencing in the term 2 school holidays 2020, for 6 hours on a day and at times as agreed between the parties but failing agreement from 10am until 4pm on the first Monday of the holidays in odd numbered years and the second Monday of the holidays in even numbered years;
(d)commencing in the 2020/21 long summer school holidays for 6 hours on days and at times as agreed between the parties but failing from 10am until 4pm on the first and third Mondays; and
(e) otherwise as agreed by the parties.
4. Changeover occur at G Contact Service and that:
(a) changeover be supervised by such service; and
(b) all costs associated with the service be borne by the Applicant.
5.The parties forthwith do all things and sign all documents necessary to enrol with the G Contact Service to facilitate contact changeover in order 4 above.
The Respondents to the initial application in March 2019 were the child’s parents who were at that stage in an intact relationship.
In reaching the decision of the prior judgment in 2019, his Honour at [5]-[7] noted by way of background the following matters including the spiteful and acrimonious relationship between the Mother and Grandmother:
5.The First Respondent has a very acrimonious relationship with the Applicant. The acrimony is deep seated and has extended over many years.
6.A number of matters are effectively agreed, or not in dispute, between the parties. Relevantly, these matters are:
a) X is not at any risk of harm while in the care of the Applicant.
b) X is well cared for by the Respondents.
c)X has a relationship with the Applicant. The extent and depth of that relationship is documented in a report prepared by Ms A of the Family Contact Service. Ms A in the lead up to trial had observed the Applicant with X.
d)X has not spent any regular time with the Applicant since 3 October 2019, when she spent time with him at McDonalds under the supervision of Ms A.
7.The Applicant seeks to re-establish regular contact with X. She is not seeking that X live with her. Her Amended Initiating Application seeks that she spend six hours every fortnight with X unsupervised. She also seeks time with X on special occasions and during school holidays. The Applicant says that she loves X and that she enjoys spending time with him.
The prior judgment makes reference to evidence contained in a report prepared by a Family Consultant after a Child Inclusive Conference and a psychiatric report made on the Grandmother. At [16] his Honour extracted the recommendations from the Family Consultant contained within the section 11F Report following the Child Inclusive Conference (copied exactly):
FUTURE DIRECTIONS
•It is respectfully recommended the court considers:
•Ongoing litigation is unlikely to resolve the issues in this matter. The issues seem deeply entrenched in longstanding family relationship issues that are unresolved and thwart the parties reaching agreements about spend time in the course of everyday family life between X and his grandparents. Ongoing litigation may entrench the parties’ positions further and any financial or other stressors placed upon the parents may only serve to diminish their parenting capacity and in turn compromise X’s care. There is no suggestion from either party that X’s living arrangements should be changed, the issues revolve around spend time with the Grandmother. There is no dispute X and the Grandmother have shared a relationship.
•The parties may want to consider family therapy in an effort to resolve some of their issues, which may in turn enable them to reach some agreements about, spend time.
•The parents have shared parental responsibility.
•X lives with his parents.
•If X is to spend any regular ongoing time with his Grandmother, which cannot be agreed upon between the parties, it may be beneficial for this to be structured and supervised. Any spend time arrangements should be cognisant of the impact this will have on the parents parenting capacity.
•The parties may consider J Families family recognition program, 3-4 times a year supervised by J Families.
•The Grandmother is permitted to send birthday cards, Christmas cards and presents to X.’
The prior judgment also refers to concerns raised by the Family Consultant in relation to the Grandmother's mental health and it subsequently contains a psychiatric report from Dr B. In regard to that his Honour stated as follows at [18]–[20] (copied exactly):
18.In the 11F Report, the Family Consultant raised some issues in relation to the Applicant’s mental health. Those issues are as follows:
‘Mental Illness
•The Grandmother suffers from anxiety, depression and PTSD, all of which she receives treatment for through a Psychiatrist she has regularly consulted. She says her mental health issues were exacerbated when she separated from her partner. She says she has sought treatment and she is stable.
•The parents report concern about the (sic) not only the Grandmother has diagnosed mental health conditions but also underlying personality structures and her interpersonal relational style. They report concern she has “borderline personality disorder” and is a “narcissist”. They describe she has stalked and harassed them. She has written under a pseudonym to one of the father’s employers in (sic) and he has lost his job. She has written emails to one of the Mother’s colleagues disclosing personal information. They allege she is not child focused and only concerned with her own needs. The Grandmother said she was desperate to see her grandson and went through the Mother’s Facebook page and sent pleading emails to some of her friends to help. She denies contacting the father’s employers, saying the parents have no proof of this.’
19.Subsequent to the 11F report, the Applicant visited and obtained a report from Dr B. Dr B is a psychiatrist. In his affidavit, Dr B deposes that he does not think that the Applicant satisfies the diagnostic criteria for Major Depressive Disorder, Post Traumatic Stress Disorder or any serious psychiatric illness such as Schizophrenia or Bipolar Disorder. In his report, Dr B notes that the Applicant appears stable.
20.While the report of Dr B is generally positive for the Applicant, it is apparent from the face of Dr B’s report that his observations as to the behaviour of the Applicant are heavily qualified. For example, his observations were based upon a sole 75 minute interview. He was not provided with any of the Court material, or any other material. He states expressly that he cannot:
•‘Based on a single psychiatric interview… Diagnose a Personality Disorder, but clearly Ms Katten has at least personality traits in the areas of dependency, emotional dysregulation as she can be volatile at times as well as perfectionism with stubbornness.
•My diagnosis is of Adjustment Disorder with Mixed Anxiety and Depressed Mood, which is her emotional response to complicated relationships she has with members of her family of origin…’.
His Honour at [28]-[32] considered the impact of orders on the Mother including that the Grandmother may have used the proceeding to cause her distress:
28.The First Respondent’s affidavit material annexed to it a range of communications from the Applicant to the First Respondent. Those communications disclose that the Applicant speaks to the First Respondent in terms that can only be described as insulting, demeaning and degrading. No child should have to endure the sort of communication that I have in this matter seen the Applicant visit upon the First Respondent.
29.The Applicant in the witness box accepted that she had sent these communications. There is no doubt, in my view, that the nature of these communications constitute family violence visited by the Applicant upon the First Respondent. While the Applicant acknowledged she had sent the communications, she demonstrated little insight into the effect such communications would have on her child, the First Respondent.
30.The evidence before the Court also discloses that the Applicant may have used these proceedings to cause further distress to the First Respondent. I was taken to an email that suggests that the Applicant was fully aware that the First Respondent would be unable to access Legal Aid, while the Applicant would enjoy such access. That email concluded that the Applicant would fight to see her grandson ‘whatever the cost’.
31.I am satisfied, having observed the Applicant in the witness box, and having read the affidavit material, that the Applicant is a person of little insight into herself, or the way in which her behaviour may affect others. A similar observation was made by the Family Consultant that conducted the Child Inclusive Conference. In the 11F Report prepared on 7 August 2019, the Family Consultant made the following observation of the Applicant at interview:
‘The Grandmother presented at interview focused on her need to spend time with X and demonstrated little insight into how her current application may diminish the parent’s resources and what if any impact that in turn will have on X. She reported a view that the Mother wanted her when she needed help and then discarded her. Of some concern was her view that regardless of whether or not ongoing litigation will “set them back”, or add pressure to the parents lives and financial situation, she will pursue the legal processes she views this as her last resort to spend time with X.’
32.It is difficult to cavil with a view expressed by the Family Consultant. It accords with my own view and impressions of the Applicant.
His Honour also made findings at [37] about the consequences continued contact with the Grandmother would have on the Mother:
37.When all of the above is considered, I am satisfied of the following. First, I find the Applicant has engaged in significant verbal abuse and denigration of the First Respondent. I am satisfied that she has engaged in family violence toward the First Respondent. Second, I find that there is a real likelihood that, if the First Respondent is required to have contact with the Applicant, the Applicant will continue to abuse and denigrate the First Respondent. Third, I find that the First Respondent’s mental and general health will suffer if she is required to have contact with the Applicant.
His Honour at [43]-[44] also canvassed the difficulties faced by the Mother if any orders were made for the child to spend time with the Grandmother and the risk of further proceedings if such order was made:
43.A significant consideration in this case is the practical difficulty of the Respondents potentially needing to communicate with the Applicant, especially in relation to matters such as changeover. It is clear to me that if any time is to be ordered, it can only be ordered on the basis that the Respondents not be required to have any contact with the Applicant.
44.It was also submitted by the Respondents that I should make an order that X spend no time with his Grandmother on the basis that it was highly likely to lead to further proceedings. That may be the case. It may also be the case that no further proceedings will arise if the Applicant is able to enjoy some limited time with X in circumstances where the First Respondent’s health is not compromised by the spend time arrangements.
His Honour noted at [41] that he did not place great weight on the child's disclosure to the Family Consultant that he would like to see the Grandmother given the child’s young age. The Family Consultant noted that the child interacted with familiarity with the Grandmother and separated from her without distress.
OUTLINE OF EVIDENCE
The concerns that were expressed in the prior judgment regarding the ongoing tension between the parties and the risk of further litigation have come to pass. On 9 September 2020 the Grandmother issued an application seeking orders which are set out above.
The Grandmother supported her application with an affidavit sworn on 9 September 2020. By that affidavit, the Grandmother asserted that the Mother had failed to comply with the orders that required her to enrol with the G Contact Service (“the Contact Service”) to allow her time with the child to commence.
The Grandmother also gave evidence that she became aware that the Contact Service was closed on Sundays and therefore could not provide the changeover service.
Upon the advice from a community's legal service, the Grandmother sent the Mother an SMS suggesting that the Suburb D Police Station could facilitate changeovers as an interim measure. There was further correspondence between the Grandmother's legal representatives and the Mother but no agreement was reached regarding a venue for changeover.
The Grandmother sought to initiate mediation with the Mother through the Victoria Legal Aid Dispute Resolution Service but the Mother refused to participate. The Grandmother also gives evidence about highly derogatory Facebook posts made by the Mother the day after the prior judgment was delivered.
Significantly, the Grandmother also deposed that since 21 November 2019, the Mother gave birth to a second child, Y born in 2020. The Grandmother had requested to spend time with that child. That request was refused. She also noted that the Mother and Father had separated and that the Mother was living in rented accommodation with the children and the Maternal Great Aunt.
The Mother filed a response to the Grandmother's application on 1 December 2020 and by that response sought orders relevantly that the Final Parenting Orders be discharged.
The Mother filed an affidavit in support of the response. I refer to the Mother’s affidavit filed on 22 October 2021 (“October 2021 affidavit”) as that incorporates the matters raised in her earlier affidavits. By that affidavit, the Mother denied contravening the order in relation to enrolling with the Contact Service and states that she was advised that the Contact Service was unable to facilitate supervised changeover on a Sunday. Given that the orders provided for the time to be spent on a Sunday, the Mother explained there was no point in signing up for a contact service which could not provide the services required under the orders.
The Mother does not agree to have the changeover at the Suburb D Police Station, citing in the October 2021 affidavit at [14] that a police station is not an appropriate venue for change. The Mother raised concerns that the police were not aware of the background between the parties and that attending the police station could be confusing for the child.
The Mother does acknowledge however at [25] of the October 2021 affidavit that the Final Parenting Orders had not been followed stating:
“However, I believe that if the final orders were enforced, this would be detrimental to both myself and for X”
In the October 2021 affidavit, the Mother raised concerns in relation to the Grandmother's conduct, in particularly that the Grandmother had been seeking to pass on presents that she had purchased for the children on an almost weekly basis.
The Mother also raised concerns regarding family violence, where she alleges that she was being surveilled by the Grandmother watching the property where she was living. The Mother claims there were instances where the Mother drove past the property looking in. It is contended that the Grandmother has continued to send messages to the Mother which distresses her. I note that the history of family violence perpetrated by the Grandmother has been acknowledged in the prior judgment.
The Grandmother's mental health remains a significant concern to the Mother, which she says subsequently impacts on her capacity to care for the child. The Mother gave evidence that the Grandmother recently sent messages indicating that the Mother and her siblings had been abused as children by her Father (the Maternal Grandfather). The Mother maintains that there is no basis to those allegations.
The Mother gave evidence in relation to the changes that occurred within the family since the Final Parenting Orders were made. It is stated at [71] in the October 2021 affidavit that following the 2019 proceedings, that she and the Father had separated on a final basis and that they now live separately. That was not the case when judgment was delivered in 2019.
The Mother and Father continue to co-parent, with the children living with the Mother during the week and spending time with the Father on weekends. Specifically, the Father currently cares for the children between Friday evening and Sunday afternoon, with the Mother attending for the child Y for one night over the weekend as she is still young and relies on the Mother overnight. The Mother asserts that time with the Grandmother would undermine these arrangements and routines which have been put in place.
The Mother also stated that the child participates in a range of extracurricular activities such as swimming and football. At the time of swearing the October 2021 affidavit, these activities had been interrupted by COVID-19 restrictions.
In an earlier affidavit sworn on 1 December 2020, the Mother at [43] states that during the Mother's pregnancy with the child, the Grandmother had sent abusive messages including that:
She (Grandmother) “hoped I died from the pain of childbirth”.
The Mother claimed this formed part of the long history of abusive messages that she had received. Whilst the abusive conduct on the part of the Grandmother was canvassed in the prior judgment, this particular instance of the Grandmother's behaviour does not appear to have been specifically addressed.
The Mother submitted that given the change of orders sought by the Grandmother, this would consequently lead to a separation of the children during the time that the child spent with the Grandmother. Given that the child Y was excluded from the operation of spend time orders, it was submitted that orders separating the children is not in the best interests of the children.
The Grandmother by her affidavit dated 5 November 2021 refers to what she states as the Mother's blatant disregard to the Court orders. The affidavit evidence attaches a disparaging Facebook post made by the Mother in relation to the Final Parenting Orders. The Facebook post stated:
What’s the worst that could happen after spending 10k to defend my right as a parent? Let me think… doing it all for nothing and having the other side win!! I could have had a car that fuking works by now I could (have) been enjoying life instead of struggling I’ve spent the whole year working my ass off with nothing to show for it!! I didn't put myself here to loose (lose)
Other strongly derogatory remarks were made by the Mother about the Grandmother and the Court, clearly showing she was unhappy with the Final Parenting Orders made by the Court and the cost of obtaining legal representation.
The Grandmother deposes that she has sought to engage in dispute resolution with the Mother and also sought to arrange suitable changeover and supervision venues so that she could see the child. The Grandmother states that she has not seen the child since 3 October 2019 when she saw the child under the supervision of the Family Contact Service. The Grandmother also gives evidence that she is attending upon a psychiatrist and CASA for counselling.
By way of the Grandmother’s affidavit of 5 November 2021, the Grandmother suggests that she does have a relationship with the Mother, or alternatively, is capable of having a relationship with the Mother. There is limited contact through the sharing of recipes and communications via Facebook. That there is any such relationship is denied by the Mother.
As can be seen from the procedural background which is set out above, the Grandmother has modified her position through the course of this proceeding since her application was made in September 2020. She is no longer seeking any substantial amendment to the Final Parenting Orders. The only change she seeks are machinery orders to give effect to the Final Parenting Orders.
CONSIDERATION
As can be seen from the procedural background which is set out above, the Grandmother has modified her position through the course of this proceeding since her application was made in September 2020. She is no longer seeking any substantial amendment to the Final Parenting Orders. The only change she seeks are orders to give effect to the Final Parenting Orders.
This matter was the subject of an interim hearing on 11 November 2021. The parties relied upon their affidavits referred to above and those affidavits referred to in their respective outlines of case, which I refer to. At the hearing the Mother sought the following orders as set out in her outline of case filed on 8 November 2021:
(1)the parents have equal shared parental responsibility for the child;
(2)the child lives with the Mother;
(3)the Final Parenting Orders be discharged; and
(4)the child spends time with the Grandmother as agreed between the parties.
At the hearing on 1 October 2021, the representative of the Mother asserted that the Mother was not seeking for the case to be reopened but simply wishing for the Grandmother’s application to be dismissed. Counsel for the Grandmother submitted that the Grandmother was only seeking the enforcement of the Final Parenting Orders and did not seek the imposition of sanctions. Counsel for the Grandmother submitted that the Mother was seeking a substantive change to the Final Parenting Orders and in order to do that has to satisfy the rule in Rice & Asplund [1978] 6 Fam LR 570.
The Court made orders on 1 October 2021 making specific reference to the rule in Rice & Asplund in the notations to that order.
The Court noted at the hearing on 1 October 2021 that before the matter could be heard as a final hearing the Court must be satisfied that is appropriate for the case to be reopened having regard to the principles in Rice & Asplund.
In Rice & Asplund [1978] 6 Fam LR 570 Evatt CJ said at [7]:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, …there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…
In applying these principles as set out in Rice & Asplund, the Court in this case must give consideration to the following:
(a)the circumstances at the time of the making of the Final Parenting Orders in 2019, having regard to that earlier order and the reasons for and material on which that order was based;
(b)whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing; and
(c)if there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation:
In SPS & PLS [2008] FamCAFC 16 (“SPS & PLS”), Warrick J said at [48] that the rule in Rice & Asplund is “merely a manifestation of the best interest’s principle”.
In Reid & Lynch [2010] FAMCAFC 184, at [20] – [22], the Full Court said that:
a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment, unless the court can be satisfied that there is some changed circumstance which would justify such a serious step, or some fact which was not previously disclosed which would have been material in the making of the orders.
I would also in this context refer to the observations of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 at 118 (albeit made in the context of the admission of further evidence on appeals in parenting cases) that the “important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.” (See also Watson & Watson [2018] FCCA 1791 at [369] per Judge Kelly, where His Honour set out a detailed analysis of the rule and its application).
The Court must also consider Marsden & Winch [2009] FamCAFC 152 (“Marsden”) and whether a variation to the current orders would benefit the children more than the disruption and emotional harm likely to be caused to them by re-litigation.
In Marsden the Court stated at [48] that:
“… 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.”
Further, as was found in Marsden at [47], in circumstances where the Court has been asked to determine this matter at a preliminary stage the following principals apply:
“...when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”
Paragraph [44] of the prior judgment indicates that the Court contemplated that there may be further proceedings arising from the Final Parenting Orders, if orders were made for the child to spend time with the Grandmother.
His Honour also sought to fashion orders whereby the parties may have no contact with one another to avoid the stresses arising from communication, which was acknowledged to be likely.
A number of matters must be noted. First, the application made on 9 September 2020 by the Grandmother was not simply to enforce the Final Parenting Orders, but a variation was sought to take into account the Mother’s second child Y. That position has been amended subsequently.
Secondly, since the Final Parenting Orders were made the Mother has given birth to the child Y. In those circumstances the Court must have regard to the child Y’s best interests in considering the operation of the Final Parenting Orders as her interests may be affected by them.
Thirdly, the relationship between the Mother and Father has broken down and they are no longer living together. The child Y is spending weekends with her Father.
Fourthly, if the orders were enforced it would result in the child Y being separated from her sibling during the times that the child X spent with his Grandmother;
Fifthly, there is evidence from the Mother that the relationship between the Grandmother and the Mother has broken down further since Final Parenting Orders were made.
Sufficient evidence has been placed before the Court to provide a basis for the Court finding that it is arguable that the Final Parenting Orders ought to be set aside as they may not operate in the best interests of the child. The question of what order should be made will be made the subject of the final hearing. The Mother sought for those orders to be made at the interim hearing on 11 November 2021, however it was made clear that the purpose of the interim hearing was to determine whether the Mother’s application to discharge the Final Parenting Orders and the Grandmother’s application to enforce those Orders should proceed.
There is evidence to support submissions that the enforcement of the Final Parenting Orders or making of new orders that provide for the Grandmother to spend time with the child or children are unlikely to operate without a great deal of acrimony. There is evidence before the Court that may support a finding that the level of acrimony and very high level of stress this situation brings on is not the best interests of the children.
There is a serious question that there may be little benefit to the child or children in enforcing the Final Parenting Orders against the Mother. There is sufficient evidence to make a submission that the disruption and cost to her and the children is likely to be significant if that was to happen as the enforcement of the orders may impact on her capacity to parent. The Mother has clearly not sought to make the previous orders work and the Court does not approve of that or condone such conduct and the Court’s disapproval of it was made plain during the course of the hearing. However, the Mother urges that this conduct must be viewed against the background of long term and high level conflict that was set out in the prior judgment. The resolution of that issue is a matter for final hearing.
A serious question arises as to whether enforcing the Final Parenting Orders or making new ones involving the children spending time with the Grandmother will benefit the child or children. If the Grandmother persists with seeking to enforce the Final Parenting Orders there is a serious question as to whether the risk of harm to the child as a result of ongoing litigation outweighs the benefits to the child seeing the Grandmother.
Further, a serious question arises that given that the parents of the child are now separated, the time that the Father spends with the child will be affected by orders requiring that the child spend time with the Grandmother. This may be said to impact on the quality of the relationship between the Father and the child and is it consideration as to whether the Final Parenting Orders are in the best interests of the child or children.
Whilst not determinative, I also have regard to the fact that the primary Judge was mindful that in making the Final Parenting Orders that further litigation may follow. The Family Consultant giving evidence before the primary Judge expresses similar views.
When those matters are considered cumulatively, there is a sufficient change in circumstances to warrant that the application on the part of the Mother for the discharge of those orders proceeds. An order dismissing the Mother’s amended response is unlikely to lead to an end to this litigation as the application by the Grandmother to enforce the Final Parenting Orders would continue to be opposed by the mother
Finally by way of clarification in considering this application I have regard to what was said recently in Bonner & Chandler [2021] FedCFamC1A 81 per Austin J at [22]-[23]:
22.The magistrate’s reliance upon the cited portion of Church was indeed misplaced because that part of Benjamin J’s judgment was later expressly disavowed by the Full Court in Valentine & Lacerra & Anor (2013) FLC 93-539 at [42]–[43].
23.The Full Court has repeatedly affirmed that, in child-related proceedings, the parents of the subject children do not enjoy superiority over any other person who is keenly interested in the children’s welfare, though the status of parenthood does require careful consideration in the application of s 60CC of the Act because some factors pertain only to parents (Maldera v Orbel (2014) FLC 93-602 at [79]–[81]; Valentine & Lacerra at [42]–[43]; Aldridge & Keaton (2009) FLC 93-421 at [42]–[61], [75]–[81] and [83]).
In the decision which was the subject to appeal, the primary Judge had made reference to and gave approval to the following passage from the decision of Benjamin J in Church & Overton & Anor [2008] FamCA 953 where his Honour said at [60]:
60.It is not the role of the court to peer over the shoulders of functional parents, and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner, and consider whether a better approach is not to make no order at all.
During the course of the hearing I referred the parties’ legal representatives to paragraph [60] in Church & Overton without reference to the Full Court authorities that expressly stated that passage was not a correct reflection of the law. Given the clear statement from the Full Court, I do not rely on that passage in Church & Overton when considering this matter.
CONCLUSION
For these reasons, the Court finds that the Mother has placed sufficient evidence before the Court of a change of circumstance to warrant the matter proceeding to determine the question as to whether the orders that she seeks discharging the Final Parenting Orders should be made.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 23 February 2022
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