LEPAK & TILLY

[2020] FCCA 2779

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEPAK & TILLY [2020] FCCA 2779

Catchwords:
FAMILY LAW – Application for parenting arrangements for children aged 9 and 7 – whether the rule of Rice & Asplund should be applied in circumstances where the parties consented to final orders in July 2016 – whether there has been a significant change in circumstances – whether the need to determine what is in the best interests of the children in a co-parenting situation marked by mutual allegations of family violence outweighs the need to avoid subjecting children to further litigation – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss. 60CA, 60CC

Cases cited:

Bennett & Bennett (1990) 14 Fam LR 397

CDJ v VAJ (1998) FLC 92-828

King & Finneran [2001] FamCA 344

McEnearney, In the Marriage of, Re (1980) FLC 90-866

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

Applicant: MR LEPAK

Respondent: MS TILLY

File Number: ADC 2460 of 2016

Judgment of: Judge Brown

Hearing date: 7 August 2020

Date of Last Submission: 7 August 2020

Delivered at: Adelaide

Delivered on: 7 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Heinrich

Solicitors for the Applicant: Websters Lawyers

Counsel for the Respondent: Mr Lipari

Solicitors for the Respondent: FJS Lawyers

ORDERS

1. The mother’s interim application is dismissed.

2. The respondent mother file and serve an amended Response and Affidavit in support within 28 days of today’s date.

3. That the parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne by the applicant father.

4. Further consideration of the matter is adjourned to 30 September 2020 at 9:30am for directions.

5. Liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Lepak & Tilly is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

No. ADC 2460 of 2016

MR LEPAK

Applicant

And

MS TILLY

Respondent

REASONS FOR JUDGMENT

Preamble

1. These reasons for judgment were delivered orally.  Given the length of the reasons, it is appropriate that the reasons be transcribed.  This is the relevant transcript.  Grammatical errors have been corrected and efforts made to make the oral reasons amenable to being read.

Introduction

1. This morning I have to deal with a case which concerns the rule in the case of Rice & Asplund which, in legal terms, is a complicated rule, and can basically be summed up as follows: children should not be subjected to unnecessary litigation which revisits issues already decided. 

2. The parties to the proceedings are Mr Lepak and Ms Tilly.  They are the parents of two children, X who was born 2010, and Y who was born 2012.

3. As I understand matters, the parties met one another in March 2003.  They married in mid-March 2007 and separated on 13 November 2015.  Accordingly, on my calculations, when the parties separated, X was a little over five and Y was approaching her third birthday.

4. The parties each then consulted the lawyers who represent them in their current proceedings, and both sensibly and insightfully, with the help of their lawyers, the parties were able to resolve issues in respect of arrangements for the division of their property and arrangements for the care of X and Y consensually, and that I think was a very good thing.

5. At the time, Mr Lepak was engaged in his current occupation, I think as a manager, and I think it was the case that Ms Tilly was more involved with the care of the two children concerned. 

6. In any event, the parties agreed how their assets were to be divided, and at the time Mr Lepak, who was born in 1980, was in his mid-30s, and Ms Tilly, who was born in 1981, was also in her mid-30s, and the parties were not wealthy people, which is not surprising given their ages at the time.

7. As I say, the parties also agreed on arrangements for X and Y’s care.  It was agreed that they would have equal shared parental responsibility for their children, and the children would spend from 5.00pm Friday until 7.00pm the following Sunday in alternate weeks in their father’s care, with an intervening night in the other week of each fortnight. 

8. Arrangements were made for the children’s birthdays and at Easter time, and some arrangements were made for a longer period of time at Christmas, which also involved the children spending the significant days of Christmas with each of their parents.

9. Significantly, the parties also agreed that if they failed to reach any agreement in relation to any matter concerning the children they would attend a process of mediation within 14 days of such disagreement.

10. The consent orders were made by the Family Court on 4 July 2016.  So the parties were able to resolve issues in respect of their pool of property and arrangements for their much loved children in about eight months with lawyers being involved, so on any view that was an expeditious resolution of these issues. 

11. I am not fully aware of the circumstances of the parties’ separation but, in general terms, it is not the easiest process for any person to go through.  So from my perspective, that indicates that there was some goodwill between the parties and they were each, in the jargon, child-focused. 

12. I think I read in one of the party’s affidavits that it had been agreed between them that there would be an arrangement which allowed Mr Lepak to concentrate on his career whilst Ms Tilly would remain focused on the day-to-day issues of parenting. 

13. In general terms, again, that is not an uncommon arrangement.  However, as individual circumstances change it is commonly the case that one parent wishes to recalibrate such earlier decisions, particularly as children grow up and become more independent and resilient.

14. The father commenced the current round of proceedings on 5 November 2019, so that was about three years and four or five months after the consent orders. 

15. In his original application, which has subsequently been amended, he sought to have a longer block of time with the children from Thursday to Tuesday, so a block of five nights per fortnight.  He seeks some more specific orders in respect of how the shorter school holidays are to be divided as well as the end of year school holidays. 

16. Ultimately he proposed that the parties move to a regime whereby the children are in his care for six nights per fortnight and with their mother for eight.  He prepared an affidavit in support of his application, which I have read.

17. He asserted that even though orders had been made, the parties did not in fact follow them and, in fact, agreed that there would be an arrangement whereby he would have the care of the children for four nights a fortnight, and he says this continued until shortly prior to these proceedings being commenced.

18. The parties have each since re-partnered and it is often the case that the advent of new partners, who obviously have to be involved with caring for children of a separated family because the children have to move from household to household, can of itself be a factor that leads to disharmony and mistrust.  In this case each of the parties has re-partnered.

19. In his affidavit, the father was critical that the children were being exposed to the mother’s excessive alcohol use.  More significantly, it is a requirement that when any application for children’s orders is made that a document known as a notice of risk be filed and questions are asked.  In this particular case the father, in answer to the question:

    “Do you allege that a child to whom the proceedings relate has been abused by a party to proceedings or any other person who is relevant to the proceedings – ”

    He answered –

    “Yes.  On or about 21 March 2019 the child, X, was held down and suffocated by the respondent and her partner.”

    In answer to the question:

    “Do you allege that a child to whom the proceedings relate is at risk of abuse by a party to proceedings or any other person?”

    Answer:

    “Yes.  Unnecessary physical discipline.”[1]

    [1]  See Notice of Risk filed 5 November 2019

20. So in this case the father asserts that there are significant issues in the mother’s household.  It is also his position, as I understand it, that when he has formally raised these issues with, I think, the police who have at least conducted some inquiries in respect of the allegation, that the mother asserted that she would go back to the strict letter of the consent orders, which the parties, as I say, had agreed could be consensually varied.

21. Clearly from the father’s position, there was an acceleration of mistrust and conflict between the parties which, ostensibly at least, had been absent from the earlier proceedings.

22. Ms Tilly responded to the application on 23 January 2020.  Her position is quite simple.  She just asserts that the proceedings should be dismissed.  In support of that position she asserts as follows:

    “There is a significant risk of harm to the children if they are exposed to protracted litigation.”[2]

    [2]  See mother’s affidavit filed 23 January 2020 at [6]

23. In her affidavit the mother has many historical criticisms of the father during the latter stages of the parties’ relationship in respect of financial irresponsibility, alcohol abuse, his opposition to childhood inoculation, and so on and so forth.

24. As with the father, of her, she too filed a notice of risk.  In answer to the same questions about abuse, she too replied:

    “Yes…The father’s partner has caused injury to the child Y by causing her to hit a wall and bruise her back…The father’s partner has caused injury to the child X by forcing open his bedroom door against his wishes and damaging his fingers, causing bleeding and bruising.”[3]

    [3]  See Notice of Risk filed 23 January 2020

25. In answer to the question:

    “Do you allege that a child to whom the proceedings relate is at risk of abuse by a party to proceedings or any other person – ”

    She has answered –

    “Yes.”

    Like the father, of her, she asserts that the children will be exposed to:

    “Unnecessary physical discipline and reckless behaviour.”[4]

    [4]  Ibid

26. It is asserted that the father engages in ongoing psychological and emotional abuse of the children and drinks to excess, and that he and his partner used cannabis during the parties’ relationship. 

27. She opines – I am not sure if she has any medical qualifications – that the father suffers from an undiagnosed mental illness, has longstanding alcohol abuse issues and abuses cannabis.  So that is a litany of serious criticisms of the father.

28. In respect of the issues relating to X, it is her position that the father has, in essence, fabricated those abuse claims and then has embroiled the child in an unnecessary investigation.  The parties, as their earlier orders required, attended a process of mediation at a family relationship centre.  That did not assist them. 

29. Having read the affidavit material and having endeavoured to summarise it, it would be my view that, although the parties were able to agree arrangements for the care of their children and the division of property fairly quickly and amicably, it would be naïve to think that they had the easiest of relationships during their marriage.  Certainly that is not the mother’s position. 

30. It would also appear that the advent of new partners in each household – and whether they were on the scene at the time of the consent orders, to a certain extent is, I think, immaterial – has made the parties’ co-parenting relationship more challenging. 

31. So I suspect that there has always been an oscillating cycle of animosity between the parties and, as a consequence of what has happened recently, that has reached a new peak in its intensity.

32. Against that background I thought it was sensible to give the parties an opportunity to meet with one another and a court counsellor to see if they could draw back from what seemed to be inevitable litigation. In this context, the parties were referred to Family Consultant Ms A pursuant to the provisions of section 11F of the Family Law Act.[5] 

    [5]  Hereinafter referred to as “the Act”

33. I am entitled to obtain advice from family consultants and in that sense, what is said at a child dispute conference is not confidential, and I have a memorandum from Family Consultant Ms A, which each of the parties will have also had.

34. One of my fundamental obligations under the Act in all the proceedings I conduct, and it follows from the requirement that parties are required to file formally notices of what the risks are to their children, is to assess that risk.  Family Consultant Ms A also took part in that assessment.  She looked at a number of headings in respect of risk factors. 

35. She noted that there were mutual allegations of emotional manipulation and controlling behaviour.  In terms of the children, she noted that there had been involvement from the Department for Child Protection in respect of X, who had been interviewed by police.

36. Ms Tilly detailed minor injuries that she said had been received when the children were in the care of the father’s partner.  Mr Lepak, as I say, raised views concerning the children’s safety while they were in the mother’s care because of her alcohol use.

37. As was earlier noted there seems to have been disparate views about the need for the children to have vaccinations, and, in this context, Ms A noted that the parties seem to have opposing views on the need for medical intervention for the children. 

38. In this context, I note that the earlier consent orders have conferred the parties with equal shared parental responsibility and, accordingly, they have an obligation to try and consensually resolve any major long-term issues pertaining to the children.  So there would appear to be difficulties there.

39. Both parties raised issues with the family consultant about alcohol and substance abuse, and issues were also raised in respect of mental health issues.  In her summary of the case Ms A said this:

    “The core issue for consideration is the children’s parenting arrangement, which until recently had been negotiated informally between the parties.  A breakdown in the adults’ relationship appears to have followed allegations of physical harm to X.  Prior to this incident, the accounts by both parents at interview reflected that they had been able to focus on the children’s needs.”[6]

    [6]  See Child Dispute Conference Memorandum dated 5 May 2020

Applicable legal principles

1. The structure of Part VII of the Family Law Act, which is the part of the Act which deals with children, emphasises that parents share duties and responsibilities for their children, and have a responsibility to reach agreement in respect of the future parenting of their children. 

2. That is really the basis of the concept of equal shared parental responsibility pursuant to which the Court is directed to encourage the involvement of both parents in the life and care of their child, subject of course to the protective concerns arising in respect of the child.

3. In my view, Ms A has eloquently summarised what is the most significant change in this case.  Whatever capacity the parties had to co-parent X and Y and not seek the involvement of the Court has gone.

4. Perhaps it was the case that the parties bumped along uneasily with one another after the consent orders and were always able to draw back from coming to Court.  I do not know.  But that is no longer the case and each of the parties, as I say, have made significant and stinging criticisms of the other, particularly that the other parent has abused the children or permitted his or her partner to abuse the children.

5. As I say, the rule in Rice & Asplund is an expression of the paramountcy provision. That is contained in section 60CA of the Act, which reads as follows:

   “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

6. How a child’s best interests are to be determined is by reference to a long list of matters in section 60CC of the Act. Those considerations are divided into two categories. Firstly, a group of matters which are categorised as primary considerations, and they are twofold.

7. Firstly, the benefit to the child concerned of having a meaningful relationship with both of the child’s parents and, secondly, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

8. Pursuant to section 60CC(2)(A), I am directed to give greater weight to protective concerns. In this case, each of the parties has invoked the Court’s fundamental jurisdiction to protect children in the notices, which they are statutorily required to file in the proceedings.

9. In that sense there is a tension between a party invoking the Court’s protective jurisdiction on the one hand, and asserting that the children are in danger of being abused or exposed to family violence, and then on the other to assert that the process of inquiring into those significant matters is of itself a threat to the children concerned.

10. That litigation is harmful to children cannot be doubted.  It is harmful for a number of axiomatic reasons.  It causes children to feel that their loyalties to their parents, whom they love are being challenged.  In essence, children may feel that they are being asked to choose a side, which of itself is emotionally detrimental. 

11. More significantly, it provides a forum, as each of the parties will be aware from how these proceedings have currently gone, for parents to criticise one another.  People hurt when they read criticisms about themselves.  They do not forget. 

12. Necessarily, that retards the prospects of parents developing better co-parenting techniques and communicating more effectively and respectfully with one another about issues to do with their children.

13. Finally, litigation is also very, very expensive, and people, for obvious reasons, do not feel well disposed to a person who puts him or her to expense.

14. I will now do as best I can to explain the rule in Rice & Asplund. As I say, it is an expression of the paramountcy principle contained in section 60CA. Children benefit from finality in arrangements for their care. They know where they are. They have the security of routine.

15. As such it is not helpful to children and their welfare that arrangements are subject to the prospect of some revision by the Court, particularly if such a revision has the potential to involve emotionally wrenching litigation which pits parent against parent.

16. However, on the other hand, the best interests of the children, and in this context I include any necessary inquiry into protective concerns, must dictate that necessary revision of arrangements for their care can take place if there has been a change in their circumstances of sufficient moment to justify it. 

17. Parental conflict or controversy between parents about parenting arrangements of itself may not be sufficient to justify the revisitation of an otherwise finalised case.  Each case must turn on its individual facts. 

18. The discretion, which I have, is to circumvent unnecessary and harmful litigation.  However, it has to be judicially exercised.  I am not in the position to arbitrarily stop a parent litigating an issue merely because litigation in itself has negative aspects. 

1. There is a danger of a person in my position unduly conflating the desirability of avoiding litigation with my responsibility to inquire into what is in the best interests of the child.  In addition, I must be careful not to regard a consent order as being something that is like a fossilised fern set in amber which can never be revisited.

2. The primary purpose of the rule in Rice & Asplund is to prevent endless litigation, and that is the terminology of Evatt CJ, as she then was, in Rice & Asplund.[7]  It is based on three main pillars. 

   [7]  Rice & Asplund (1979) FLC 90-725 at 78,905

3. Firstly, finality of litigation avoids exposure to the public occasioned by subsequent hearings and the imposition of them on Court time.  There is no open door policy at the Federal Circuit Court whereby parties can come in endlessly to adjudicate disputes between them.

4. Secondly, the imposition of the rule avoids the potential evil of one judicial officer substituting his or her opinion of what is in the best interests of the child for that of another judicial officer on the basis of the same factual circumstances. 

5. Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements.  Litigation is not helpful to children. 

6. It is desirable that arrangements for their care be stable and so final.  For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[8]

   [8]  See CDJ v VAJ (1998) FLC 92-828 at 85,449

Discussion

1. In this context, in my view, there is some substance to Mr Heinrich’s submission that the 2016 order was a consent order.  There was no hearing whereby findings of fact were made. 

2. Accordingly, this is not a case where it can be said that there is some form of forum shopping and that Mr Lepak is trying to get a second opinion or a second go at adjudicating his case.

3. Although I agree with Mr Lipari’s submission that the children are not significantly older – they are not teenagers who are expressing a mature view about what they want or do not want – there still has been, through the effluxion of time, a change of circumstances, the most significant of which, in my view, is the evaporation of any goodwill between the parties and the mutual exchange of serious abuse allegations.

4. Clearly, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements.  In this case, there have not been repeated applications.  There was a consent order and now this litigation.

5. In McEnearney,[9] which is now a case that is about 40 years old, and Rice & Asplund itself is more than 40 years old, it was said that the court should not condone a perennial football match between parents who seek to canvass again and again the question of custody of a child.  This is not that sort of case.  Its issues are more subtle. 

   [9]  McEnearney, In the Marriage of, Re (1980) FLC 90-866 at 75,499

6. It is not the sort of case where one party, having lost, wants in effect to have another go, which is of itself an abuse of process.  It is a more subtle case with, in my view, quite potentially complicated issues.

7. It is clear from authority that a court such as this one has a discretion to determine there has been a sufficient change of circumstances to justify the reopening of parenting issues in respect of a child, which earlier had been determined, as either a discrete or preliminary issue or after a full and exhaustive hearing of all the available evidence, and the authority for that is Bennett & Bennett.[10] 

   [10]  Bennett & Bennett (1990) 14 Fam LR 397 at 409

8. However, as Warnick J pointed out in SPS,[11] it may defeat the essential utility of the rule if it is supplied after a final hearing has occurred rather than at a preliminary stage.  If the rule is enjoined after all the evidence has been canvassed there will be no saving of public resources and no protection afforded to the children concerned. 

   [11]  SPS & PLS (2008) FLC 93-363; (2008) 39 Fam LR 295 at [1]

9. Given that the rule has to be applied at a preliminary stage without any full exploration of the parties’ concerned evidence, care of course must be taken.  It is not a rule which is to be applied formulaically.

10. Rather, I must look at the evidence available and determine whether, at its highest and without determining its veracity, such evidence demonstrates a sufficient change of circumstance to justify the Court embarking upon a full and exhaustive hearing. 

11. In this case, I think I can be satisfied that whatever co-parenting relationship the parties had, it is not going well, and that each has major concerns about the other.

12. In SPS & PLS Warnick J put it as follows:

    “When the threshold question described in Rice & 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.”[12]

    [12] Ibid at [81]

13. In my view this is not the sort of case where, at its highest, the evidence is unequivocal that not to allow the litigation will be in the better interests of X and Y than to allow it to proceed, given the mutual allegations of family violence, neglect and abuse, which have been raised.

14. The question essentially is, is it likely to be in the children’s best interests to allow further litigation?  In making this assessment, I must hold in the balance the potentially adverse consequences to the children of allowing them to be the subject of further litigation.

15. In arriving at my decision, I must look at the following matters:

    ·the importance or seriousness of the issues raised, both individually and, where necessary, collectively;

    ·the impact that the issues are likely to have on the best interests of the children concerned; and

    ·whether the issues raised relate to change alone or new issues which render it necessary to revisit the earlier decision.

16. Mr Lipari referred me to King & Finneran,[13] where Collier J said the test is a strong one and the court must be in no doubt that it is necessary to re-litigate the parenting issues in dispute between the parties. 

    [13]  King & Finneran [2001] FamCA 344 at [50]

17. In that sense, the expression was “re-litigate” and, in this context, I note that there is, as I say, some thrust to Mr Heinrich’s submission that this is not really an issue that is being re-litigated in the sense that the same evidence is being re-canvassed. 

18. His Honour went on to say that I have to be satisfied that there must be a real likelihood of change.  In a matter like this one, I consider that there is a real likelihood of some change occurring if the matter goes forward and in this sense, I invite each of the parties to consider the old Chinese curse, of course, be careful what you wish for. 

19. Each party, in essence, says co-parenting is not for us.  Each of the parties has to think about what are the risks of the particular litigation concerned.  Anyway, it is not the time for the parties to draw back. 

20. In SPS, Warnick J said the essential question for the Court to pose itself concerned the sufficiency of what the new evidence or new events was.  I am to look at events in the context of the broader circumstances pertaining to the arrangements for the child and measure the significance of those events against the significance of any steps which might follow them.

21. The most significant factor I think, as I say, is that whatever prospect there was of the parties working through the issues of their children’s care as time unfolded, in a consensual fashion, has collapsed in an exchange of mutual allegations of violence and mistrust.  That, in my view, is a sufficiently new circumstance to justify the proceedings continuing.

22. I am not sure how the parties want to proceed.  I would imagine that there is a need for an amended response to the father’s application filed on 31 July 2020.  Whether the parties can agree now as to a family assessment report or some other investigation in respect of the two children is, I suppose, a matter for them. 

23. It would also seem that there is a reasonable prospect that the parties, given what was mooted with Family Consultant Ms A on 4 May, may be able to agree some refinement of the orders which will be in the children’s best interests, particularly agreeing arrangements for the forthcoming short school holidays.

24. It is not an insignificant matter that Mr Lepak seeks some orders in respect of overseas travel.  I do not know specifically where he wants to go.  I note in passing that he was born in Country B. 

25. Whether he wants to go to Country B because of his background, I do not know, but that also of itself may be an issue that can be consensually worked out.

26. But at the end of the day, I think I would be remiss in my responsibilities just to dismiss the application by invoking the rule in Rice & Asplund, and there would be a very real risk that that would be perceived as not a determination on the merits of the case which, after all, is what I am required to do in all proceedings relating to children. 

27. I think there is a real risk that, as I have said, perhaps expressed not particularly eloquently, the rule in Rice & Asplund can just be invoked merely because there had been some previous proceedings between the parties concerned, and of itself, litigation is not a good thing.  That is certainly not my view of the jurisprudence.  So for those reasons, the mother’s interim application is dismissed.

28. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety two (92) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 20 November 2020