Lasco and Lasco
[2018] FCCA 498
•6 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LASCO & LASCO | [2018] FCCA 498 |
| Catchwords: FAMILY LAW – Parenting – whether the rule in Rice & Asplund applies so as to preclude the mother from continuing her application. |
| Legislation: Family Law Act 1975 (Cth), pt.VII |
| Cases cited: Poisat & Poisat [2014] FamCAFC 128 |
| Applicant: | MS LASCO |
| Respondent: | MR LASCO |
| File Number: | NCC 503 of 2016 |
| Judgment of: | Judge Middleton |
| Hearing date: | 31 January 2018 |
| Date of Last Submission: | 31 January 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 6 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilkinson |
| Solicitors for the Applicant: | Craney Family Solicitors |
| Counsel for the Respondent: | Mrs Kearney |
| Solicitors for the Respondent: | Merridy Elphick Lawyers |
ORDERS
The application filed by the Applicant Mother on 22 August 2017 is dismissed.
The Respondent Father’s costs of today are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Lasco & Lasco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 503 of 2016
| MS LASCO |
Applicant
And
| MR LASCO |
Respondent
REASONS FOR JUDGMENT
Ex tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Introduction
By way of an Initiating Application filed 22 August 2017 the mother, Ms Lasco, aged 34, seeks to discharge orders made by consent on 29 March 2016 regarding parenting orders for X born (omitted) 2013 (“the child”), now aged four.
The mother seeks orders thereafter essentially reversing the orders that are currently in place.
The father, Mr Lasco, aged 30, by way of his Response filed 25 October 2017, seeks an order dismissing the mother’s application.
Currently, pursuant to the order of 29 March 2016, the child lives with the father and spends substantial and significant time with the mother.
Background
The parties commenced cohabitation in 2012, married on (omitted) 2015, and separated on 27 November 2015.
The parties attended mediation on 4 December 2015 and reached an agreement whereby the child lives with the father and spends time with the mother, incrementally increasing until alternate weekend time commenced on 1 February 2016.
The father provided an application for consent orders to the mother in January 2016. The mother contacted lawyers at (omitted) and received advice.[1]
[1] See paragraph 30 the mother’s Affidavit filed 22 August 2017.
The father and the mother signed the consent orders. The father’s signature is dated 26 February 2016 and the mother’s signature is dated 24 February 2016.[2]
[2] See Annexure G to the father’s Affidavit filed 25 October 2017.
The mother commenced family dispute resolution in April 2017. The parties attended a mediation on 31 May 2017 and no agreement was reached.
The mother has three children from two former partners; A (aged 14), B (aged 13) and C (aged 8).
Both A and C have been diagnosed with autism and both live with their maternal grandmother. C lived with the parties and continues to live with the mother. X has been diagnosed with autism on 5 September 2017. He was born at 26 weeks gestation.
The issue
The issue that arises in this matter is whether the rule in Rice & Asplund applies so as to preclude the mother from continuing her application.
Documents relied upon
The mother relied upon:
a)her Initiating Application filed 22 August 2017;
b)her Notice of Risk filed 22 August 2017; and
c)her Affidavit filed 23 January 2018.
The father relied upon;
a)his Response filed 25 October 2017;
b)his Affidavit filed 25 October 2017;
c)a short chronology;
d)the Mother’s Notice of Risk filed 22 August 2017; and
e)the Mother’s Affidavit filed 22 August 2017.
There were also four exhibits in the proceedings.
The law
The substantive application concerns parenting orders.
In those circumstances, Part VII of the Family Law Act applies.
In determining this matter I must regard the best interests of the child as my paramount consideration.[3] In determining the best interests, I must have regard to and consider section 60CC of the Act.
[3] Family Law Act 1975 (Cth) s 60CA.
In Poisat & Poisat[4], the Full Court said at paragraph [34]:
“The nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings (see, for example, SCVG & KLD [2014] FamCAFC 42).”
[4] [2014] FamCAFC 128.
The father provides evidence that the mother left the home without X and thereafter spent sporadic time with the child.
The mother says the father controlled her time in concert with his parents.
Since the orders have been in force, the child has predominately spent time with his mother consistent with the orders. There have been a few occasions when the mother has failed to spend time in accordance with the orders.
The father seeks a continuation of the current orders.
The mother seeks a reversal wherein the child would live with her and spend substantial and significant time with the father.
I can infer from both sets of orders that no issue is taken by either parent in regard to s 60CC(2) of the Act.
Both parents seek an order for equal shared parental responsibility. They have had shared parental responsibility since the child’s birth. There is no issue with regard to section 61DA of the Act.
The father provides evidence regarding his relationship with the child. The mother provides some limited evidence.
The father says the mother has shown a reluctance to be involved with the child in the past. The mother says the father has prevented her from being involved. Section 60CC(3)(c) is relevant.
The mother’s proposal, if proceedings continue, would bring about a significant change. Section 60CC(3)(d) is relevant in those circumstances.
The father raises a concern about the mother’s capacity to care for and meet the needs of the child. Section 60CC(3)(f) is relevant.
The mother raises coercive and controlling behaviour on behalf of the father. Accordingly, section 60CC(j) is relevant.
The child has significant health issues as a result of being born at 26 weeks gestation and now being diagnosed with autism. Section 60CC(m) is relevant.
The Threshold Issue
This is a threshold determination. In Rice & Asplund[5] the Full Court, consisting of Evatt C.J., with whom Pawley and Fogarty JJ agreed said:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and 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, to quote Mr Justice Barber, ‘there is some changed circumstance which would 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’ (passage quoted in Hayman & Hayman supra) at p. 75,680).”
[5] (1979) FLC 90-725.
Accordingly, if the application is to succeed then I must find some changed circumstance which would justify the serious step of entertaining an application to reverse the earlier order. As their Honours in Poisat & Poisat at paragraph [43] said:
“If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.”
Counsel for the mother submitted that the rule in Rice & Asplund did not apply unless there had been previous litigation.
Evatt C.J, after setting out the principles quoted previously, went on to say:
“These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should be served. These principles apply whether the original order is made by consent or after a contested hearing.” (my emphasis added)
Rice & Asplund was decided 38 years ago. Counsel for the mother did not take me to any authority to support his submission. My review of decisions since that time could not find one authority to support the submission made by counsel. In those circumstances, I reject the submission.
Section 60CC considerations
I will now turn to the relevant best-interest considerations as provided in s 60CC of the Act.
Section 60CC(3)(b)
The evidence relied upon by both parents satisfies me that this child has a strong, secure bond with both of his parents.
The child has lived with his father since birth and is cared for by the paternal grandparents on a regular basis. It is reasonable to infer that this four-year-old child would be primarily attached to his father in those circumstances.
Section 60CC(3)(c)
The father says the mother at times does not involve herself with decisions concerning the child. The mother says the father denies her the opportunity.
Exhibit 1 in the proceedings is a letter to Dr O from Dr H dated 30 November 2015. Dr O writes that the child was reviewed with his paternal grandmother and great grandfather, because his father was at work and, according to the grandmother, the mother had done a runner. The letter goes on to say that the mother had left and they had not had any real contact with the mother over the last few days.
Exhibit 3 is the child’s enrolment form with ‘(omitted) Kindy’. That form provides evidence that both parents were listed and that the mother was nominated as the first emergency contact.
Exhibit 4 is a handwritten note dated 18 February 2016 from the mother to (omitted) Kindy authorising them to adjust payments for the child by accessing her account.
The child was recently diagnosed with autism. The father says he notified the mother of the appointment and the mother did not go.
The mother says at paragraph 49 of her Affidavit filed 23 January 2018 that the father said he would get back to her regarding the appointment for assessment.
Annexure K to the father’s Affidavit filed 25 October 2017 is a text message forwarded to the mother regarding the Sydney appointment for assessment. The text satisfies me that the mother was notified of the appointment and that she responded. The text is dated 30 August 2016.
In circumstances where the mother swears that the father would get back to her about the appointment on 23 January 2018, I am satisfied that she is not telling the truth.
The father says the mother did not attend. I believe the father. His evidence is that the mother has failed to spend time with the child in the past, and I believe him when he says that.
In those circumstances I am satisfied that the mother has failed to take the opportunity to participate in making decisions and to spend time and communicate with the child from time to time.
Section 60CC(3)(d)
The evidence establishes that the child has spent his entire life with the father with substantial involvement from paternal family members.
The mother’s proposal would see a reversal of that arrangement.
The child has autism. Annexure J to the father’s Affidavit is the psychological assessment report dated 5 September 2017. At page 4 the report says:
“X can become significantly distressed at minor changes to his regular routine. His family try to maintain consistency at home to avoid upsetting X.”
Furthermore, the report says:
“He is sensitive to loud noises. He can become distressed when he hears these sounds.”
At page 9 of the report under the heading “Conclusions,” the writer opines that X demonstrates:
“Excessive adherence to routines, ritualised behaviours, and excessive resistance to change, i.e. preference for sameness, extreme difficulties with change in routine, ritualistic behaviours, non-functional routines.”
The evidence establishes that the mother’s two older boys have autism and that they live with her mother.
At paragraph 62 of her Affidavit of 23 January 2018 the mother says that the boys “prefer her (C) in small doses because she is a bit loud and excitable.”
In light of the totality of that evidence, I am satisfied that there would likely be a disadvantageous effect on the child and his relationships with his primary attachments, including the paternal grandparents, if his living arrangements are changed.
Section 60CC(3)(f)
The mother has decided it would be best for everyone if her two older boys, both suffering from autism, live with her mother.
At paragraph 60 the mother says she tries “not to disrupt their routine because of their autism.”
The mother decided for reasons best known to her, not to involve herself with the assessment appointment for this child.
The mother proposes changing this child’s residence in circumstances where she knows her daughter can be loud and excitable, where her two older boys prefer her daughter in small doses, and she knows that this child is sensitive to loud noises and very resistant to change.
In those circumstances I am satisfied that the mother lacks insight into the needs of the child. As a result, her capacity to meet the child’s needs on an emotional and intellectual level lacks somewhat.
The mother gives evidence that in April 2016 she had barely sufficient funds to support herself and C.[6] This was at a time when she was working full time as a trainee and earning limited income at a level equivalent to the Newstart Allowance.[7]
[6] See paragraph 44 of the Mother’s Affidavit of 23 January 2018.
[7] See paragraph 42 of the Mother’s Affidavit of 23 January 2018.
The mother says she now works as an (occupation omitted) between 20 to 30 hours a fortnight and still receives the Newstart Allowance, which varies depending upon her hours of work.
I am satisfied the mother is in a similar financial position now as to that she had in April 2016. She says she could barely support herself and C then, and now she wants the full time care of this child.
In those circumstances, I am satisfied that the mother lacks the capacity to meet the day-to-day needs of the child on a financial basis.
Section 60CC(3)(j)
The mother complains of coercive and controlling behaviour. This behaviour relates to the father controlling how much time she had with the child and forcing her to sign consent orders.
Exhibit 2 is the outpatient notes for the child dated 18 February 2016. The notes reveal that the “mum has no concerns”.
Exhibit 3 and 4 are records held by ‘(omitted) Kindy’. Those notes establish that the mother was fully involved in the enrolment process and in meeting the ongoing costs associated with the enrolment.
Exhibit K to the Father’s Affidavit filed 25 October 2017 is the text message from the father to the mother advising of the child’s appointment for assessment. The father clearly involves the mother as best he can. The mother attempted to mislead the court about receiving this. In those circumstances I found her to be dishonest.
Whilst I cannot make findings on a final basis regarding family violence because the evidence is not tested under cross-examination, I can weigh the probabilities of competing claims.[8] In doing so, I am satisfied that it is more probable that there was no coercive or controlling behaviour on behalf of the father.
[8] See SS v AH (2009) FCA 174.
Section 60CC(3)(m)
The child has special needs. He suffers from chronic lung disease, sleep apnoea and autism spectrum disorder.
The father has a complete understanding of the child’s needs and the insight to address those needs.
I have already commented on the mother’s lack of insight and her inability to meet the child’s needs as a result. This is a significant consideration in this matter. This child does not need uncertainty in his life. He receives certainty and routine in his father’s care.
There are decades worth of empirical evidence to support the idea that litigation between parents exposes children to conflict and conflict for children can cause psychological damage.[9]
[9] See, for example, R. Chisholm and J. McIntosh, Cautionary Notes on the Shared Care of Children in Conflicted Parental Separation, Journal of Family Studies, volume 14, 2008; Family Law Amendment (Shared Parental Responsibility) Bill 2005 Explanatory Memorandum, and; McIntosh, J.E, The Children’s Cases Pilot Project, An Exploratory Study of Impacts on Parenting Capacity and Child Well-Being, Final Report to the Family Court of Australia, Family Transitions, Melbourne 2006.
I am convinced that litigation would be particularly disadvantageous and not in the best interests of this child.
What are the changed circumstances?
Annexure G to the father’s Affidavit filed 25 October 2017 is the application for consent orders. The mother says she was forced to sign the application.
The mother’s evidence is that the parties agreed on a parenting plan. That plan provided for the child to live with the father and spend time with the mother.[10]
[10] See Annexure F of the father’s Affidavit filed 25 October 2017.
The consent orders applied for provide for further additional time between the child and mother and continue the arrangement where the child lives with the father.
The mother says she received legal advice.[11] The mother signed the statement of truth, page 42 of the father’s Affidavit, acknowledging that she was aware of her right to obtain independent legal advice and that she obtained that advice.
[11] See paragraph 30 of the mother’s Affidavit filed 22 August 2017.
I am inclined to believe that the mother was not forced into signing the application for consent orders in those circumstances.
If I am wrong about that, the question still remains, what is or are the changes in circumstances which would justify this serious step of entertaining an application to reverse the earlier order?
Page 36 and 37 of the father’s Affidavit sets out the relevant information pertaining to the child at the time the orders were made.
The child now has a confirmed diagnosis of autism. This is a change. The mother now lives in a three-bedroom home. This is a change. The mother now works 20 to 30 hours a fortnight as an (occupation omitted). That is a change. The mother is now in a relationship with Mr S[12]and there is no evidence from him. This is a change.
[12] See paragraph 37 of the mother’s Affidavit filed 22 August 2017.
That is the extent of the changes since the orders were made on 30 March 2016.
I have already referred to my findings regarding the best interest of the child. There is nothing about the changes alleged that could satisfy me that this child’s existing well-settled arrangements should be changed in his best interests.
In my view, the changes are not significant but for the diagnosis, and I am satisfied, as I said earlier, that the father has a greater capacity to meet the child’s needs in this regard than the mother.
For those reasons I am satisfied that it is not in this child’s best interests for the mother’s application to continue, and I am further satisfied that there has not been a change in circumstances which would justify such a serious step.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Middleton.
Date: 9 March 2018
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Family Law
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Civil Procedure
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