Mace and Mace

[2010] FamCA 389

FAMILY COURT OF AUSTRALIA

MACE & MACE	[2010] FamCA 389
FAMILY LAW – CHILDREN – Final consent orders made – Father argued Rice v Asplund to re-litigate – Where child’s behaviour significantly deteriorated – Threshold point passed – Matter to proceed

APPLICANT: Mr Mace

RESPONDENT:	Ms Mace
INDEPENDENT CHILDREN’S LAWYER:	Ms Barbara Fox, Solicitor

FILE NUMBER: BRC 4242 of 2008

DATE DELIVERED: 17 May 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 17 May 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Hofstee, Solicitor of Peter Hofstee & Associates appearing for the Applicant Father

COUNSEL FOR THE RESPONDENT: Mr Tolton of Counsel appearing for the Respondent Mother

SOLICITOR FOR THE RESPONDENT: Jeff Horsey Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Slade-Jones of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Barbara Fox Solicitor

Orders

IT IS ORDERED THAT:

1. The proceedings be adjourned for case management review to 9.30 am on

   
   16 July 2010

   at the Brisbane Registry of the Family Court.

2. Order (7) of the Orders of this Honourable Court dated 14 December 2009 be discharged.

3. An updated Family Report is to be prepared by Ms B, Family Consultant or at the direction of the Independent Children’s Lawyer by such other report writer as may be able to produce a Family Report within an earlier time frame.

4. The report writer has leave to read any filed documents together with any subpoenaed documentation.

5. The parties shall attend and ensure the child, M born … November 2001, attends all necessary appointments for the preparation of the updated Family Report.

6. Leave is given to the Independent Children’s Lawyer to issue subpoenae as deemed necessary.

7. Leave is given to all parties to inspect subpoenaed documentation with no copies to be taken without the leave of the Court other than by the Independent Children’s Lawyer.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

1. The Mother deliver the child to the Father’s house at the commencement of the Father spending time with the child and the Father return the child to the Mother’s residence at the conclusion of his time spent with the child.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4242 of 2008

MR MACE

Applicant

And

MS MACE

Respondent

REASONS FOR JUDGMENT

1. The relationship between the parties extended from 1998 until separation on 7 April 2008.  At the time of separation, the mother, Ms Mace, took the parties’ only child, M, with her.  Suffice to say, the father was outraged at the mother’s unilateral action in depriving him of regular contact with his son and he promptly instituted proceedings.

2. Orders were made by consent on 29 May by Purdon-Sully FM and those orders provided for the child to live with the mother and the father was to have quite regular time.  The matter was then adjourned through until 31 July.  On 31 July, the parties entered into final consent orders both in relation to the issues concerning the child and also in relationship to property.

3. There is not anything exceptional about this.  It is probably more common than not that shortly after proceedings are instituted, the parties, after attendance at counselling services and/or with the assistance of their legal representatives, manage to come to an agreement.  The arrangements continued seemingly without serious incident until about July last year at which time the father held the child over.  I don’t have full details of this, but it seems to me from the versions that I’ve been given is that the child had been pricked on the finger by his maternal grandfather who wanted to take a drop of blood to test the child’s blood sugar levels because of the child’s behavioural problems.

4. It seems, and I’m speculating here, that instead of the father phoning the mother to inquire as to what had taken place, the father took the child’s account of events at face value and then proceeded to decide this behaviour was so outrageous that it justified him in breaching the arrangements.  The matter came before the courts again before Purdon-Sully FM on 17 July 2009 and 20 July 2009.  The changeover was altered to the G Contact Centre.  An Independent Children’s Lawyer was appointed and then the child reverted to residing with his mother and seeing the father on the regular alternate weekend and every Wednesday night basis.

5. Today is the first day the matter has come into my list and it will stay in my docket so there will be consistency of dealing with it.  At the commencement of the proceedings on behalf of the mother, an argument was raised relying on the principle enunciated in the decision of Rice v Asplund.  It’s a threshold point.  Although it’s described occasionally as a threshold point, meaning a litigant has to get over that hurdle before being allowed to re-litigate, it can be raised in different circumstances.  Here, I am not relying on historical material because the parties are precluded from filing material under the less adversarial system that we have because what we have found is when they file material, it tends to add petrol to the fire rather than try to extinguish the fire.

6. The argument on behalf of the mother is that there has been no significant change and if the child’s behaviour has deteriorated it could be attributable to a whole host of reasons, and it’s not good enough simply to assert because the child’s behaviour has altered, that is sufficient to re-litigate the matter.  For the father, it was argued that the deterioration and behaviour has been significant and particulars were addressed.  The Independent Children’s Lawyer, through counsel, took a different tack and said that there has been a breakdown of the stable placement of young M and if the matter is not revisited there is a risk - it’s not a certainty - but there’s a risk the child would suffer long-term emotional harm if he hasn’t already.

7. I would, for my own part, note that there were no reports before the court when the original orders were made on 31 July 2008.  They are the substantive orders from which I base the timeline of saying, “Has the situation changed?”  The matter may have been back before the court for adjustments or other variations but they were the significant, substantive final consent orders.  Since that time, there have been two reports from a Mr P of September 2009 and October 2009, family consultant Ms B of 26 November 2009, and a report from Ms H, a clinical psychologist of 23 February 2010.  I have considered those reports.  I have considered the affidavit material of the parties.  I do not propose to accede to the application that the father’s application be stayed on the basis of no changed circumstances.

8. I accept that the child is expressing very strong wishes to the report writers, three of them, over a period of some six months.  The child is exhibiting serious behavioural problems.  It is not normal to have your son suspended from school at any age but at this age – and the evidence would indicate he has been suspended two or three times, I think, this year.  Do not accept that as being normal.  Do not accept the fact that you have been litigating in either the Federal Magistrates Court or this court for two years now as normal.  Go and talk to your fellow citizens, they don’t do that.  Most of them - if they have a dispute, they manage to sit down and try and resolve it.

9. So I will allow the matter to proceed.  I note the parties are not legally aided.  It’s going to cost the parties a lot in terms of money and in terms of stress unless they start taking control of their own lives.  This litigation could easily continue for another two years.  Do you want to put yourselves through that?  It’s your money, you can spend it, but I would have thought it’s far better directed towards young M’s secondary education or whatever other educational opportunities or extra-curricular activities may be engaged in in the future.

10. But the most important reasons why the parties should start taking matters into their own hands is something I have already stressed and that is the ongoing litigation of itself will be detrimental to M.  You can have the best will in the world not to raise the issue with him, not to discuss the issue with him.  It comes up through the floor boards.  It comes out through the vibrations.  There are phone calls, there are discussions, there is tension.  You name it.  You have experienced it.  It will just get worse.

11. Now, there are positive signs.  The first is the parties recently agreed on a surgical procedure for M.  They shared the expenses of that and the arrangements. Apparently everything has gone well.  The parties have informed me today – I accept what they told me – that they would each like to settle.  That is all to the good.  Each party gave me an account of sitting together to watch M play soccer on yesterday’s date.  I was very impressed, as was the family consultant Ms B. 

12. The fact that you could do that while your son is playing soccer and reach agreement on diet, whether it was some junk food as against healthy food, and things of that nature, puts you way ahead of many litigants that come before me.  I can tell you that.  So these are all positive signs that I’m trying to reinforce to you that you can do something about.  But it is going to take courage.  How you go about it is your business because it’s not my business to tell you how to settle.  I’ll make a decision if called upon at an appropriate time but, in all probability it won’t be until the end of the year.

13. There is an ongoing problem with contact – spending time.  Really I would like to leave that to the parties but the matter can be made the subject of written submissions, if necessary.  My own suggestion is to leave it at the G Contact Centre or such other venue as the parties may agree in writing with a further stipulation that if the G Contact Centre is not open at the relevant changeover date then the father is to collect the child from the mother’s home and the mother is to deliver the child to the father’s home.  I can’t see any problems with security or safety where the parties are sitting down together at soccer matches, and apparently it happens on a regular basis.

14. I will adjourn this matter to a date.  I’m reluctant at this point in time to give it dates of trial because I would like the parties to settle. If I give them dates of trial there is a chance they get locked into, “Oh, well, we’ve got our dates of trial and we go from there.”  If I don’t give you a date of trial you have got to go away and think settlement.  Now, I will order an updated family report to be prepared by Ms B. 

15. The parties could always commission their own report.  I, for my own part, think the issues are fairly clear cut.  I’ve got three reports, effectively.  The parties can commission their own report and get one an awful lot quicker than the one to be done by Ms B.  There are lots of very competent report writers around.  The Independent Children’s Lawyer may investigate that.  The parties may agree to contribute.  The parties have to ask themselves if they really want M to be interviewed again?  Try and see if you can trial something that is going to work.  How you do it is a matter for you.

16. The report writer - paragraph 48 of her report – suggests that the parties do a parenting orders program.  Look, you could take that advice on board.  I’m not minded to order that quite frankly.  I will if there are compelling reasons.  It seemed to me what happened on the weekend – it was good co-parenting.  Let’s see more of it.  Let’s take the heat out of this rather than putting the heat back in.  So if you want to go there – and it won’t harm your parenting skills to attend a course like that.  They are beneficial, they give you time for self-reflection but it is often difficult to attend when you are child-minding as well and you have got all your other duties.

17. I’ll give the Independent Children’s Lawyer leave to issue subpoenas as determined necessary. 

18. The matter is adjourned through until 16 July 2010.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  17 May 2010