Leal and O’Hegarty

[2013] FamCA 870

FAMILY COURT OF AUSTRALIA

LEAL & O’HEGARTY [2013] FamCA 870

FAMILY LAW – CHILDREN – Interim Orders – mother’s application for fresh interim orders – Rice v Asplund (1979) FLC 90-725 – whether there has been a material change in circumstances or revelation of new evidence since last interim proceedings – where one child sustained injuries that required hospitalisation while in the father’s care – mother alleges the father’s supervision of the children is unsatisfactory – finding that there was no material change in circumstances and no revelation of new evidence

Family Law Act 1975 (Cth) s60CC

Rice v Asplund (1979) FLC 90-725

APPLICANT: Ms Leal

RESPONDENT: Mr O’hegarty

INDEPENDENT CHILDREN’S LAWYER: Kathryn Renshal

FILE NUMBER: SYC 3101 of 2012

DATE DELIVERED: 11 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 11 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: Titan Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYERS: Mr Clarke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Kathryn Renshal

Orders

IT IS ORDERED THAT

1. The Application in a Case filed by the mother on 9 September 2013 is dismissed.

2. The Response to an Application in a Case filed on 10 September 2013 is dismissed.

3. Save as to costs, any and all outstanding applications for interim orders pursuant to Part VII of the Family Law Act are dismissed.

4. The costs of the father and Independent Children’s Lawyer incidental to the interim hearing concluded on 11 September 2013 are reserved until final trial.

NOTATION

A.The interim parenting orders made on 6 May 2013 continue to prevail.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leal & O’Hegarty has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3101 of 2012

Ms Leal

Applicant

And

Mr O’Hegarty

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE

REASONS FOR JUDGMENT

1. These proceedings entail a debate between the applicant mother and the respondent father concerning parenting arrangements for their three young children – B who is aged ten years, C who is aged seven years and D who is aged four years. 

2. There are substantive proceedings between the parties on foot for orders pursuant to Part VII of the Family Law Act (“the Act”). In the context of those over-arching proceedings, the parties have had previous interim events before the Court.

3. Most recently, on 6 May 2013, Le Poer Trench J determined interim parenting orders between the parties. Those orders provided for the children to live with the parties for equal time on weekly rotations commencing on 10 May 2013.  The mother is dissatisfied with those orders and made an application seeking a review of the orders which have had a life of only about four months.

4. The mother’s proposal, as set out in her Application in a Case filed on 9 September 2013, is that parts of the orders made on 6 May 2013 be stayed and that in lieu thereof fresh orders be made providing for the children to spend only supervised time with the father for a couple of hours each Sunday and that otherwise the mother have sole parental responsibility for the children. 

5. The reasons advanced for her proposed change to the orders in May 2013 will become apparent momentarily.

6. In support of her proposal, the mother relied upon her affidavit filed on 9 September 2013 and also upon a number of documents that she tendered as exhibits; being hospital notes relating to the child C following her treatment on that date for an injury sustained in a motor cycle accident (Exhibit M1); an email the mother sent to the father inquiring about the circumstances of another event in July 2013 which caused her some concern (Exhibit M2);  and an email to the mother by the former Independent Children's Lawyer (“ICL”) in the proceedings, which pre-dated the last interim orders made on 6 May 2013 (Exhibit M3).

7. The father’s proposal is simply a rebuttal of the mother’s proposal.  He seeks to retain the orders made on 6 May 2013 and his cause is supported by the ICL.  The father relies upon his affidavit filed on 10 September 2013.

8. The ICL initially sought an adjournment of the proceedings, effectively for two reasons.

9. The first was to permit the issue of subpoena to procure information relating to the middle child’s injuries arising from the accident on 4 September 2013. Although the adjournment application was dismissed before the tender of Exhibit M1, it would be apparent from the current availability of the hospital notes which form Exhibit M1 that the need for the issue of that subpoena and the consequent delay of these proceedings was unnecessary.

10. The second reason for the adjournment was that the ICL considered it was precipitous to reconsider the orders made in May 2013 until the single expert, appointed to investigate the family dynamics, had interviewed the parties and children and then produced her report. The Court is informed that the family interviews with the single expert will take place on 23 October 2013.  I was not persuaded to adjourn the proceedings for that reason either since the production of the single expert report might furnish the Court with some extra evidence upon which to adjudicate the interim dispute between the parties, but would not be determinative.  The matters which are relied upon by the mother to support a change to the interim orders are factual in nature and nothing offered by the single expert could bear probatively upon the determination of factual disputes.

11. The ICL’s application for an adjournment was therefore dismissed and, although no reasons were sought for that decision, these brief reasons explain the decision. 

12. Orders in respect of children are regulated under Part VII of the Act. When called upon to make a parenting order the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made.

13. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration and the Act specifies with precision, in section 60CC, the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

14. It is unnecessary for the purposes of the determination of these proceedings to explain the presumption of equal shared parental responsibility and the circumstances in which that presumption may or may not apply, including during interim proceedings, nor to explain the provisions of section 65DAA that apply when any determination is made to allocate equal shared parental responsibility for the children.

15. The reason why it is unnecessary to give that explanation is because these proceedings more appropriately invoke the principles discussed in Rice v Asplund (1979) FLC 90-725 and the many cases which have since endorsed those seminal principles. In order to thwart the prospect of endless litigation over children, principles have evolved to permit the Court to dismiss subsequent parenting proceedings if there are no material changes in circumstances and no revelation of some previously unknown feature of material relevance since litigation was last finalised in respect of such children.

16. The determination of whether there has been a change of sufficient magnitude to warrant review of existing orders may be made either by a preliminary inquiry or by a more comprehensive hearing, but at whichever stage the determination is made, application of the Rice v Asplund principle is merely a manifestation of the principle that the subject child’s best interests are the paramount consideration and procedural fairness should always be observed. 

17. That has occurred here. The determination about the existence of fresh evidence or changed circumstances has not been foreclosed by a preliminary inquiry.  The Court has read the mother’s concerns outlined in her affidavit of 9 September 2013 and the father’s evidence contained within his affidavit of 10 September 2013. Although these are interim proceedings, meaning the evidence has not been the subject of any testing or evaluation, the full gamut of evidence the parties wished considered has been placed before the Court and absorbed for the purposes of determination of the dispute.

18. The parties have also had the opportunity to make fulsome submissions based on the evidence they have adduced. In essence, the mother’s case is that the impediment posed by Rice & Asplund to the variation she seeks to the orders made in May 2013 is overcome by; firstly, evidence of unsatisfactory parental supervision of the children by the father and the absence of any inference that the level of the father’s supervision of the children will improve; secondly, that the father has proven his failure to disclose to the mother details of important medical issues pertaining to the children; and thirdly, that evidence is now available which was not formerly available to the Court at the time the orders were made in May 2013 which bears adversely upon the father’s parenting capacity.

19. I shall deal, therefore, with each of those issues in seriatim. 

20. The incident which was clearly the catalyst for the filing of the Application in a Case on 9 September 2013 by the mother was an accident involving the middle child on 4 September 2013.

21. In her affidavit (at [4]), the mother says that:

    On Wednesday, 4 September 2013, [the middle child] suffered serious injuries resulting from a motorbike accident whilst in the care of the father.

22. The mother also said in her affidavit (at [42]) that:

    The young children were not being supervised when they were involved in a dangerous activity whilst in the care of the father. Instead, the father was inside the home, out of sight and over 200 metres away. Our [two youngest children] could have been killed. No-one was there to help [the middle child] when she was seriously injured, until [the youngest child] managed to find the father some time later.

23. Whilst that may be the genuine belief of the mother, who was not present at the scene, the father deposed to quite different circumstances (commencing in his affidavit at [60]). The father deposed to him taking all necessary precautions and safeguards when allowing the children to ride a small motorcycle, including his provision of hands-on training and constant supervision and their wearing of appropriate safety gear, including helmets and clothing.

24. The father said that he started the quad bikes for the children, properly secured their helmets and gave them strict instructions. He remained standing in the immediate vicinity watching them whilst they rode the 90 cc and 50 cc motorcycles. The father watched them for approximately 15 minutes. The children were almost always in his line of sight but he was momentarily required to walk inside the house to attend to some cooking food and in that moment he was alerted to the accident.

25. He immediately attended to the middle child’s injury, calmed her down, which he said took about five minutes, and then drove to the emergency section of the nearest hospital with the children, only pausing to stop at the scene of the accident to search for and locate the middle child’s front tooth which had been knocked from her jaw.  Once conveyed to the hospital it is clear from Exhibit M1 that the child began to receive treatment at or about 6.36 pm.

26. At 6.51 pm, as soon as the father was sure the middle child was in the proper care of hospital staff, he turned his mind to informing the mother of the accident and sent a text message to her informing her of what had occurred. She was able to arrive at the hospital a short time later.

27. The father refutes the mother’s belief that he was inside the house watching television at the time, disinterested in the activities of the children outside. 

28. The father also takes issue with the mother’s categorisation of the child’s injuries. The mother asserted that the child received plastic surgery under anaesthesia, which the father denied (at [86(a)] of his affidavit), and his denial appears to be vindicated by the hospital records forming Exhibit M1, tendered by the mother. The mother also referred to the child having a suspected fractured jaw but Exhibit M1 disabuses the mother of that belief.

29. As the mother conceded in her submissions, accidents do occur. This was clearly an accident.  Although the mother believes the father’s supervision of the children was inadequate, the father’s contrary evidence precludes a factual finding vindicating the mother’s belief. 

30. The second incident relied upon by the mother was a car accident involving the father and the children on 5 July 2013 while they were in the Snowy Mountains region. According to Exhibit M2, the mother subsequently sought particulars of that accident from the father by email. I infer from the absence of any reply within Exhibit M2 that the father did not provide the mother with an immediate email response by way of explanation. But that is not the end of the matter.

31. In his affidavit the father explained how there was a low-speed accident, occurring at about walking pace, involving the vehicle in which he and the children were driving, which only entailed minor panel damage to the car but much more serious engine damage. Within a day or two of the accident, on 7 July 2013, which the father understandably regarded as relatively unimportant, a text message was sent to the mother by the eldest child informing her they had crashed into some trees and broken an oil tube. The father denied any suggestion he encouraged any of the children to lie about that incident and, inferentially, his evidence about that seems logical having regard to the nature of the text message sent to the mother on 7 July 2013, the content of which is set out in the father’s affidavit (at [49]).

32. As the father deposed, for the remainder of their holiday, the children happily spent time skiing, watching TV and having an enjoyable time. There was clearly no injury occasioned to any of the children. The mother’s concern about the car being written-off as an indication of the seriousness of the accident is satisfactorily addressed by the father’s uncontroversial evidence of only minor panel damage and the writing-off of the vehicle being attributable to engine damage caused by the ruptured oil line.

33. The mother also makes complaint about the father’s failure to advise her about the hospitalisation of his older child from a former relationship. The mother deposed (at [35] of her affidavit) that on 15 August 2013 she became aware that the father’s older daughter was institutionalised for about a month by virtue of some psychiatric or psychological instability.

34. The father’s evidence in response was that child’s hospitalisation was in some way connected to the mother’s adverse treatment of her. I place no weight in that evidence, as the father does not have the expertise to offer such an opinion. However, more importantly, the father’s child pleaded with him not to divulge to the mother her hospitalisation, nor the reasons for it, and the father abided by her request. 

35. It has not been explained, and I do not understand, why in such circumstances the father’s failure to advise the mother about his older child’s hospitalisation has any bearing upon the orders relating to the three children of the parties.

36. The last issue raised by the mother pertains to fresh evidence. In her affidavit (at [50]-[52]) the mother deposed to the support she perceived she enjoyed from the former Independent Children’s Lawyer in respect of the parenting orders she proposes. Exhibit M3 is an email from the former ICL to the mother purporting to suggest that he regarded her proposal as relatively meritorious.

37. It is unclear to me from the evidence as to when the former ICL was replaced by the current ICL, but that is beside the point. As the orders made by Le Poer Trench J on 6 May 2013 make clear, the parenting orders made by the Court on that day represented an adoption of the orders proposed for the children by the ICL at that time. That is evident from the face of Exhibit XI, tendered to the Court on that occasion, which is headed “Minute of Order proposed by ICL”. 

38. In such circumstances, I am not satisfied that the mother has been able to surmount the hurdle posed by the principle developed in Rice v Asplund and it necessitates dismissal of her application.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 11 September 2013.

Associate: 

Date:  5 November 2013