MILBURN & MILBURN

[2016] FamCA 724

FAMILY COURT OF AUSTRALIA

MILBURN & MILBURN [2016] FamCA 724

FAMILY LAW – CHILDREN – Interim parenting orders – Best interests of the child – equal shared parental responsibility – where father seeks mother’s application to be dismissed – where father wants to maintain equal shared parental responsibility – where mother brought an application to support the Family Report – where children exposed to ongoing parental conflict – where one child presented with self-harming behaviour – where mother frequently spent extended periods of time in the United Kingdom – where this lead to the father bringing a Hague Convention proceeding – where mother left children with father in Australia to secure employment in the United Kingdom – where the presumption of equal shared parental responsibility applies – where historical and minor events which may satisfy family violence should not displace the presumption – where the mother takes care of foster children – where equal time is in the best interests of the children and reasonable practical.

FAMILY LAW – PRACTICE AND PROCEDURE – Where father raises Rice and Asplund argument – where father contends that the Rice and Asplund principle should preclude the mother from being able to revisit interim orders – where there is insufficient change in circumstance to justify re-litigation – where mothers application is dismissed. 

Family Law Act 1975 (Cth) ss 60B, 60CA, 61DA, 65DAA(1), 65DAC
Federal Circuit Court Rule 13.04A

Banks & Banks [2015] FamCAFC 36
Goode v Goode (2006) FLC 93-286
Mauldera & Orbel (2014) FLC 93
S v Australian Crime Commission (2005) 144 FCR 431
Salah & Salah [2016] FamCAFC 100
T v N [2001] FMCAfam 222
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT: Ms Milburn

RESPONDENT: Mr Milburn

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 244 of 2015

DATE DELIVERED: 29 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 10 and 11 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jacobs

SOLICITORS FOR THE APPLICANT: Ascione & Associates

COUNSEL FOR THE RESPONDENT: Mr Slade Jones

SOLICITORS FOR THE RESPONDENT: Bassano Law

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Susan Gray

Orders

1. The mother’s Application in a Case filed 28 June 2016 be dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Milburn & Milburn 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 CAIRNS

FILE NUMBER: CSC 244/2015

Ms Milburn

Applicant

And

Mr Milburn

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings concern the appropriate interim parenting orders for the parties’ two children, being A (“the older child”), born … 2008 and hence presently eight years of age, and M (“the younger child”), born … 2010 and hence six years old (“the children”).  By Application in a Case filed 28 June 2016, Ms Milburn (“the mother”) seeks orders that the children spend five nights per fortnight in the care of Mr Milburn (“the father”) together with some holiday time, but otherwise that they live with her.  She also seeks some additional orders, including facilitation of the exchange of information between the parties, restraints on travel and restraints on the children being involved in allegedly dangerous activities.  By his Response to Application in a Case filed 5 August 2016, the father consents to a number of those latter orders (which are substantially already reflected in extant interim orders) but otherwise opposes the mother’s application and seeks for it to be dismissed.  The effect of that would be to maintain the equal shared care arrangement which presently prevails.

2. The Independent Children's Lawyer supported the father’s position.

BACKGROUND FACTS

1. The father was born in Australia in 1970, and hence is presently 45 years of age.  The mother was born in the United Kingdom in 1972, and hence is presently 44 years of age.  She trained as a childcare worker, and has extensive experience in that role.

2. In January 2003, when the mother was on holidays in Australia the parties met.  Although she returned to the United Kingdom, the parties maintained contact, and ultimately formed a relationship.  The mother emigrated to Australia in April 2006, and in August of that year the parties married.

3. The mother has always maintained a strong and frequent connection with her family in the United Kingdom, including both sets of her grandparents.  She has regularly travelled there.  It was on one of those visits, in March 2013, that the mother says that the parties finally separated, although the father contends that separation occurred upon her return from that holiday.  Nothing really turns on that point.

4. In 2014 the mother and children again travelled to the United Kingdom for a holiday, which ultimately extended to an absence of three months.  In March 2015, the mother again took the children to the United Kingdom for an agreed period of six weeks, but whilst there in May of that year, the mother told the father that she and the children would be continuing to stay there for a further five weeks.  It seems as though the father began to become concerned that the mother was in fact withholding the children from him, but upon her denying that, he travelled to the United Kingdom to collect them.  However it proved that the older child was unable to be separated from her mother, and rather than travel with only the younger child, the father returned to Australia without either child.  The mother then remained in the United Kingdom with the children.  In consequence the father commenced an Application for a return order and ultimately, at the final hearing of the Hague Convention application on 14 October 2015, the mother consented to orders requiring her to return to Australia with the children.  They did so on 28 October.  However a little under a month thereafter, the mother returned to the United Kingdom without the children in order to obtain employment.  The children remained living with the father in Australia.  Whilst she was overseas, on 9 December 2015, the mother commenced these proceedings.

5. On 20 January 2016 the mother returned to Australia to spend time with the children.  It was anticipated that she would return to the UK on 11 February, but in fact she has thereafter remained in this country.

6. On 1 February 2016 the mother filed a Notice of Risk of Abuse in relation to the children, but notwithstanding that, on 2 February 2016 the parties consented to orders for equal shared parental responsibility and for an equal time arrangement, which sees the children spending week blocks with each parent.

7. On 8 June 2016, a Family Report prepared by Ms O, a family consultant employed by the Family Court, was released to the parties.  That report highlighted Ms O’s concerns, particularly in relation to the younger child, who by the time she met him, had taken to pulling out sections of his hair such that there were bald spots on, seemingly, both sides of his temples and at the back of his head.  Ms O opined that particularly the younger child was suffering from exposure to ongoing parental conflict, which does not appear to be in contest.  However she further opined that the child’s primary attachment was to his mother, and that he was missing her when he was with the father, and that was a cause of his stress leading to the hair removal.  She therefore recommended that the amount of time that the younger child spent with the father be reduced, and in the event that the parties were not able to agree to that reduction, it be for alternate weekends and Wednesday each week, so that the child would spend a total of five nights with the father, but the balance with the mother.  No doubt in consequence of those recommendations and concerns, on 28 June the mother brought this application.

THE MOTHER’S APPLICATION

1. The matter initially came on before me for interim hearing on 10 August 2016, but in discussion with counsel for the parties and with the Independent Children's Lawyer, it was agreed that the principle focus of the application was the cause of the younger child’s concerning behaviours, and the likely best evidence of that was contained in the records of a psychologist whom he had been seeing for some months, which records were not then before the court.  A subpoena issued returnable for the following day, and the counselling notes were then tendered into evidence. 

2. They did not support the conclusion that it was the father’s household that was likely to be producing stress for the child, and certainly did not support a conclusion that, to the extent the child was experiencing stress, it could be alleviated by reducing the time he spent with the father.  In consequence, the mother appeared to thereupon broaden the matters upon which relied as supporting the variation for which she contended, in effect seeking to argue a more holistic best interests case, rather than one which placed particular emphasis upon the younger child’s self-harming behaviour. 

3. Given that the mother had consented to interim orders as recently as February of this year, unsurprisingly once the issue of the hair loss (which at the hearing before me the parties agreed had grown back on the temples, but perhaps not on the rear of the child’s head) had substantially evaporated, the father raised a Rice and Asplund argument, which I will deal with in due course.  However as I observed to the parties during the course of the hearing, given that in fact the interim hearing had been conducted by the time the Rice and Asplund argument was pressed, even if that argument was attractive to me, it would nonetheless be sensible to go on to consider the mother’s application afresh.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.  Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Interim parenting proceedings

1. In Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:

   81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   82. In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)      identifying the issues in dispute in the interim hearing;

   (c)      identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

2. Recently in Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:

   [36] It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286". A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):

   68. ... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.

   [37] In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:

   18. ... that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

   [38] The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.

   [39] In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:

   100. ... Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [40] The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or "conjecture") and not to "simply ignore an assertion because its accuracy has been put in issue" (see SS v AH).

1. Finally I should advert to s 61DA(3) which provides:

   When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

2. In Salah (supra) at [34]-[35] the court said as follows:

   [34] Section 61DA and in particular, subsection (3), was discussed in Treloar & Nepean (2009) FLC 93-417 (Coleman, May & Dawe JJ) where the Full Court stressed its importance, and gave particular emphasis to what was said in Goode and Goode (2006) FLC 93-286 (at 83,750). The following paragraph from Goode (above) was emphasised in the decision of Treloar:

   78. The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult ...

   [35] Section 60CG requires a court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Had the trial judge referred to s 61DA(3), the interim orders provision, his Honour would have applied a cautious approach, absent any need for findings as to family violence, and applied s 60CG.

3. Later at [46] the Full Court continued:

   [46] In view of the allegations made by the mother and as this was an interim hearing, the trial judge should have applied s 61DA(3) and given reasons for not applying the presumption (such as he was unable to make any findings and could therefore neither apply nor rebut the presumption) but his Honour said that the presumption applied. In part, it was the application of the presumption which triggered well known obligations within the Act, and that led to his discretion being exercised in error.

Rice & Asplund

1. The so-called rule in Rice & Asplund has now been considered by a number of Full Courts, although it may fairly be said that the application and operation of the rule remains somewhat opaque.  Moreover, the discussion in those authorities involves large slabs of earlier judgments being recited, often in a way which is rather unwieldy.  From my analysis of those cases, I venture the following as relevant principles which may either be drawn directly from them, or which otherwise logically arise:

   (a)The rule is but one manifestation of the best interests principle;

   (b)However best interests are not the only consideration relevant to the application of the rule, with other considerations including public policy issues such as the finality of litigation, and practical matters, such as the stage of the litigation at which the rule is being considered and the nature of issues involved in the several pieces of litigation;

   (c)The rule requires there to be a sufficient change of circumstances to justify the re-litigation;

   (d)The rule can be applied at any stage of the proceedings;

   (e)The effect of the operation of the rule will vary depending upon the time of its application, or more precisely the stage of the litigation when the rule is being applied;

   (f)If the rule is considered prior to trial, it may be invoked by way of an application for summary dismissal (in which case the court is likely to proceed on the basis of taking the applicant’s case at its highest and not permitting cross-examination) or alternatively may be dealt with by way of preliminary issue (in which case cross-examination may be permitted and findings of fact made);

   (g)If the rule is raised and considered at trial, most of the evils which the rule is intended to overcome or ameliorate will have already ensued.  In considering whether it may be appropriate for the application of the rule to be determined as a preliminary point at trial, factors which may influence that decision will include the dislocation of the trial process if there is a reserved judgment, and the additional delay involved.  Converse considerations may be the cost to the parties of any trial if indeed the rule’s application at the end of the trial sees re-litigation impermissible.

   (h)The rule may also be dealt with at trial by way of something akin to a no case submission, but similar considerations to the determination of the matter as a preliminary issue at trial would again arise;

   (i)Logically, the extent of revisitation of prior orders sought by an applicant will be relevant in determining the likely impact of any re-litigation on the child.  Arguably, if only a small variation of prior orders is sought, the impact on the child is likely to be less;

   (j)Likewise, the court may only permit re-litigation on one or some of the issues sought to be re-agitated by the applicant, if doing so is in the child’s best interests, or conversely, a wider scope of re-litigation is not in the child’s best interests;

   (k)Logically, it must be relevant whether or not the prior orders were made by consent, or at the end of a trial, or consequent upon an undefended hearing, and in any case, also relevant will be the circumstances by which the orders came to be made (eg if they were made at an early stage of the proceedings or after lengthy litigation);

   (l)The parties will be bound by any findings of fact actually or implicitly made in prior orders, at least to the extent that they were necessarily made to quell the controversy;

   (m)It will be a matter for the trial judge as to whether under Family Law Act s 69ZQ, evidence should be restricted only to matters post-dating the last orders, or alternatively, if leave to re-litigate is given, it might be conditional upon a limitation of issues or temporal scope of evidence;

   (n)Irrespective of the stage the litigation is at when the rule is considered, the determination remains merits based and is not a technical one.  

THE COMPETING PROPOSALS

1. I have already set out at the commencement of these reasons the parties’ competing proposals.  Interestingly however, whilst the consent orders of 2 February 2016 provided for equal shared parental responsibility, and the mother’s application seeks that the orders articulated in it replace those of 2 February, no specific order in relation to parental responsibility is sought, save that each party have “sole responsibility for the day to day care, welfare and development of the children while the children are living with each of them.”  By virtue of the orders which the father seeks dismissing the mother’s application, he necessarily seeks to maintain the order for equal shared parental responsibility.

THE ISSUES IN DISPUTE IN THE INTERIM HEARING

1. As I observed, although initially the parties were particularly focused upon the likely cause of the younger child’s stress evidencing itself as hair loss, ultimately the mother’s case was a broader one, to the effect that irrespective of the possible source of the hair loss, it would be in the children’s best interests if they were to primarily reside with her.  I will detail the matters relied upon her in that regard in due course.  For his part, the father contended that the rule in Rice & Asplund should preclude the mother from being able to revisit the question of the interim orders, as there was an insufficient change in circumstances since February to justify re-litigation.  Further, he put in issue many of the factual matters relied upon by Ms O in formulating her report and hence recommendations, ultimately contending that not only did an analysis of the facts support the maintenance of the equal time regime, but also emphasised that the number of changes to which the children have been exposed in the last 12 months alone strongly supports the maintenance of the current regime, rather than subjecting the children to further changes.

THE AGREED OR UNCONTESTED RELEVANT FACTS

1. I have already set out at the commencement of these reasons what I understand to be uncontroversial background matters.  The most important of those are:

   ·That ever since they separated the parties have had a hostile and conflictual relationship;

   ·That post-separation, on three occasions the mother has travelled to the United Kingdom with the children and sought to extend the duration of her stay, most recently only returning after the father brought Hague Convention proceedings in the United Kingdom;

   ·That after her return to Australia in October 2015, the mother then went back to the United Kingdom, leaving the children in Australia with the father, to secure employment there;

   ·That notwithstanding her then concerns as contained in a Notice of Risk of Abuse filed on 1 February 2016, the very next day the mother consented to orders which effected an equal care regime, at which point in time she was legally represented.

2. There are also some additional uncontroversial matters that are specifically relevant to this application as follows:

   ·After returning to Australia in January 2016, the mother has taken to caring for foster children, and although presently she only has young children in her care, for a period of some months, in addition to those children, also had two older foster children living with her;

   ·For some period of time (perhaps as short as two weeks) the mother had an Au Pair assisting with the care of the children and foster children;

   ·Also for some months this year, the mother had both her parents living with her on holidays from the United Kingdom, such that there were, for some period of time, as many as nine people living in her home at the same time, and perhaps ten if one includes the Au Pair;

   ·The younger child has always been a somewhat anxious child, and has long engaged in self-soothing behaviour such as sucking his thumb and continues to do so.  Likewise he has for most of his childhood pulled at his hair, but that did not cause hair loss until about April this year, when the mother first noticed the loss of hair after the child returned from the father’s care;

   ·On 19 May 2016 the younger child commenced counselling with a psychologist and most recently attended on 4 August.  It appears as though he has attended about six sessions.

THE RICE & ASPLUND ARGUMENT

1. In April 2016 the mother noticed that the younger child was suffering hair loss from pulling at his hair.  Appropriately she responded by taking him, initially to a doctor, who then referred him to a psychologist.  The mother did not then seek to litigate in relation to varying the February orders.  On 23 May 2016 – when the child was in the early stages of his therapeutic assistance which had only commenced on 19 May 2016 – Ms O interviewed him.  At paragraph 95 of the Family Report she said as follows:

   [The child M] appears to have a number of social, behavioural and learning problems which have occurred recently.  Both parents reported [the child] has an anxious temperament with behaviours such as thumb sucking and hair twirling strategies he had used to self-sooth since his infancy.  However the changing nature of the behaviours exhibited by [the child] and the severity of these behaviour (sic) are serious causes for concern eg pulling large sections of hair from his head, being disruptive in class, refusing to complete homework, and crying when he is at his father’s home when he is missing his mother.  Such behaviours are indicators of clinical symptoms of distress; [the mother] decision to engage with a psychologist provides [the child] with necessary professional support …  

2. At [96], having recited the current stressors that were impacting upon the child, she concluded “Although [the child] clearly shares a special bond with his father, this relationship does not appear to meet his emotional needs at this time.”  She went on to express concern that the father had not noticed the hair pulling whilst the child was in his care, and concluded “[The child] exhibiting self-harming behaviour while in [the father’s] care is of serious concern..”  She then concluded “In the report writer’s opinion, [the child] would benefit from care arrangements which provide him with additional time with [the mother] due to the nature of [the mother’s] emotional attunement with [the child] and the comfort [the child] receives from connection with his mother.”  It was this which informed her recommendation that the time which the children spend with the father should be reduced.  In this respect her concerns for the younger child motivated her to respond with recommendations in relation to both children.

3. Obviously this report and recommendation resulted in the mother bringing her application, and no criticism could be made of her for doing so.

4. However the records obtained on subpoena from the psychologist who has been treating the younger child would tend to suggest that, far from spending time with the father contributing to the child’s stress, it is in fact other matters outside of the father’s household that have substantially been at play.  For instance in his initial interview with the psychologist on 19 May, the child is quoted as having said “dad and mum don’t like each other.”  On 13 June, the child reported that he had many friends in the UK but “only three here” and said that he wanted more but the other children were avoiding him.  Then on 30 June the child told the therapist that he was suffering nightmares involving a bad man who was going to hurt him, and the therapist had him engage in a drawing activity to reduce the anxiety and fear related to the image of the nightmare.  On 21 July 2016 the child reported in relation to spending equal time with his mother and father “it was hard in the start but I got used to it.”

5. Significantly on 4 August 2016 the following appears in the notes:

   [The child] spoke about “the foster babies” being “annoying.”  He does not like them making noise or going to his room.  Feelings validated and helpful actions explored.

   He talked about not having friends.

   [The child] appears unsatisfied with many aspects of his life at the moment as he expressed themes of dissatisfaction.  He appears insecure in himself and anxious about his actions.

   [The child] appears satisfied with his individual relationship with both parents but struggles with the division and conflict between the two parents.

   The entrenched conflict between [the father] and [the mother] is creating an artificial rigidity and division of [the child’s] life.  [The child] is likely to feel anxious on changeover days or at times when parents talk about each other.

6. It will be appreciated that there is little in that material which would suggest that the problem which the younger child has with anxiety is sourced in the father, or more precisely, that its remedy lies in reducing his time with the father and subjecting him to yet another change.

7. It is difficult to identify anything other than the hair loss issue which would justify re-litigation of interim orders made only six months ago by consent in the face of a Notice of Risk filed only the day before by the mother.  Further, whilst there are some factual matters of concern identified in the Family Report (for instance the father allegedly admitting to having used marijuana while the children were in his care over Easter 2016) he denies that in fact that is the proper construction of what he said to the report writer, and hence I could not make a finding of fact in that respect, although the matter is plainly of some concern.  That said however, no party contended that the father’s time with the children should be supervised and indeed the mother obviously assesses any risk as an acceptable one, because she is still proposing that the children spend five nights with the father per fortnight.

8. Accepting that the rule in Rice & Asplund is simply one manifestation of the best interests principle, and is largely designed to shield children from the adverse effects of unnecessary litigation relating to them, it has to be conceded that this interim application has now run its course, so such adverse effects as it may have produced have already been visited upon the children.  Further, it has to be conceded that the orders of 2 February were indeed by consent, and not the product of any judicial determination, even accepting that the court must have been satisfied that the orders were in the best interests of the children.  However it does not appear as though the parties complied with, or were required by the court which made the consent orders, to comply with, Federal Circuit Court Rule 13.04A and hence the mother, albeit implicitly accepting that the orders were in the best interests of the children, did not explain how those orders addressed the risks which she had identified only the day before.

9. However notwithstanding those ameliorating factors, the reality is that in consequence of the subpoenaed documents produced by the psychologist, the impact of the younger child’s hair twirling and resultant hair loss is not able to be attributed to him spending time with the father, but is likely to be the result of a combination of stressors, not least of which will be the marked hostility and conflict between his parents, of which he is obviously well aware.  It may also have its source in his unhappiness at school and apparent social isolation there, and the fact that he has had up to four strange children living in his home, and obviously invading his space.  To that must also be added the large number other people who were in his home from time to time, and the fact that in the last 12 months he has had a number of changes in living arrangements, all of which occurred under the mantle of hostility and conflict between the two primary care providers in his life.

10. There is nothing in the material which speaks to a change in circumstances of sufficient magnitude to justify re-litigation on the interim orders.  The fact that the hearing has now been conducted does not persuade me to the contrary.  It is well established that the rule can be applied at the end of a hearing or prior to the hearing, or presumably at any stage throughout it.  I am therefore satisfied that the application of the rule of Rice & Asplund mandates that the mother’s application should be dismissed.

11. However as I observed to the parties during the course of the hearing, it is appropriate that I also go on to undertake an unrestricted consideration of the mother’s application to cover the eventuality that my decision in relation to Rice & Asplund is wrong.

PARENTAL RESPONSIBILITY

1. The presumption of equal shared parental responsibility under s 61DA applies, and I note in any event that was ordered by consent on 2 February, and the mother does not appear to seek to disturb that by her application.  Moreover, although there are some historical and minor events which may satisfy the definition of family violence, they are not, to my mind, of a character that ought displace the presumption, or if they did, given that it was the mother that appears to have been the principal perpetrator, weigh in favour of a grant of sole parental responsibility to her.  Moreover, even though these are interim proceedings, it is not appropriate to not apply the presumption, as neither party asserts disentitling conduct on the other.

2. The presumption has not been rebutted by evidence that satisfies me that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.  There will therefore be an order for equal shared parental responsibility.

EQUAL TIME

1. Given that I propose to make an order for equal shared parental responsibility, s 65DAA obliges me to consider whether the children spending equal time with each of the parents would be in their best interests, and whether doing so would be reasonably practicable.  No party contended that equal time was not reasonably practicable, and indeed save for the concerns in relation to the younger child’s hair pulling (which by s 65DAA(5)(d) would be a relevant consideration if it could be established that a recurrence of that would likely be caused by a continuation of equal time) it is plain that the matters that the court must have regard to in determining whether equal time is reasonably practicable are all established in that the parents live close by each other, have a demonstrated capacity to implement the equal time ordered on 2 February, and appear to have sufficient communication to resolve difficulties that might arise in implementing equal time.  I am not satisfied that a continuation of that regime is likely to have an impact on either of the children such as to render it not reasonably practicable.

1. Therefore the focus turns to whether or not such an order would be in the children’s best interests.

2. By reference to the primary considerations I observe as follows.  It is not suggested by either party that the children would not benefit from having a meaningful relationship with each of their parents, and I am satisfied that they would so benefit.

3. Neither party before me pressed any argument that the children needed to be protected from harm arising from abuse, neglect or family violence.  The mother did raise issues of physical risk to the children when using four wheel motor bikes, but plainly they do not fall under the primary consideration.

4. By reference to the additional considerations, I observe as follows.

5. The age of the children would make it difficult to give any expressed wishes much weight, but in any event there does not seem to be any clear expression of wishes by either child.

6. Whilst it may be that the father is less emotionally attuned to the children than the mother, it is plain that both children obtain comfort, support and nurture from both of their parents.

7. The father has been determined to have a significant role in the children’s lives, to the point of travelling to the United Kingdom and seeking orders for their return to Australia, to enable him to continue to have that involvement with them.

8. There was a dispute before me as to whether or not the father has adequately met his child support obligations.  His counsel contended that his arrears are only in the order of about $300.00 or $400.00; it appears the mother contends that they are much more.  I am not able to resolve that dispute on an interim proceeding.

9. The children have been subject to much change in the last twelve months, having lived in Australia, then the United Kingdom and then back in Australia, and having moved from being primarily cared for by the mother in the United Kingdom, to being primary cared for by the father at the end of 2015, and then to equal shared care arrangement from February on.  Whilst it is not possible to predict the likely effect of any further changes to that arrangement, change itself does not appear to be warranted, given the instability which they have been subjected to thus far.

10. I have already noted Ms O’s concerns that the father may not have the capacity to emotionally nurture the children to the extent that the mother does, but the father does not accept that, and it is plainly a matter I cannot determine on an interim basis.

11. Although the mother is critical of the father’s parenting, he does not accept those criticisms and I cannot make any factual finding.

12. Although during the course of the relationship there has historically been some family violence (apparently the mother was the main perpetrator) it is not of any real import in these interim proceedings.

13. I identify that a further relevant factor is that the parties agreed to equal time in February, have implemented it over the last six months, and although during that time the younger child has demonstrated some hair loss, I am not satisfied that I can attribute that to the equal shared care arrangement which he has been living under.  Moreover, in any event it appears as though the hair has mostly, if not entirely, grown back.  That would suggest that, whatever its cause, it has been successfully managed by the therapist.  He continues to undergo therapy.

14. In T v N [2001] FMCAfam 222 Ryan FM (as her Honour then was) at [93] outlined the circumstances in which her Honour thought equal shared care could operate, as follows:

    The factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:

    ·The parties’ capacity to communicate on matters relevant to the child’s welfare;

    ·The physical proximity of the two households;

    ·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?

    ·The prior history of caring for the child.  Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?

    ·Whether the parties agree or disagree on matters relevant to the child’s day to day life.  For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.

    ·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.

    ·Do they share similar ambitions for the child?  For example, religious adherence, cultural identity and extra-curricular activities.

    ·Can they address on a continuing basis the practical considerations that arise when a child lives in two homes?  If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?

    ·Whether or not the parties respect the other party as a parent.

    ·The child’s wishes and the factors that influence those wishes.

    ·Where siblings live.

15. Whilst the statutory regime has changed since that decision, there is no reason to think that as a matter of logic those matters do not still inform the practicability of an equal shared care arrangement.  In this case, some of the matters on the list are wholly or partly met; others plainly are not.  However the mother did not really argue any of those factors as telling against equal shared care, but rather pointed to the younger child’s current distress and his strong relationship with her as justifying her orders.

16. Weighing the relevant factors in the balance, I am satisfied that orders for equal time remain in the children’s best interests.  I give particular weight to the desirability for stability in the children’s care arrangements, and the fact that the younger child’s hair loss now appears to be largely historical.

CONCLUSION

1. For these reasons the mother’s Application in a Case filed 28 June 2016 will be dismissed.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 29 August 2016.

Associate: 

Date: 29 August 2016