Milton and Penfold and Anor (No.2)
[2018] FCCA 2397
•30 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILTON & PENFOLD & ANOR (No.2) | [2018] FCCA 2397 |
| Catchwords: FAMILY LAW – Parenting – final parenting Orders made in December 2016 – the Mother took no active part in the final hearing due to previous and on-going head injury – children to different Fathers live with the Mother and maternal Grandmother – Mother seeks to re-open proceedings on the basis of later neurological report – considerations arising out of utility of new evidence which only came to light after final submissions had been submitted by Father and Independent Children’s Lawyer and Mother “realised” that more evidence should be filed – considerations also of application of principles from Rice & Asplund – Application dismissed. |
| Cases cited: Rice & Asplund (1979) FLC ¶90-725 SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295 |
| Applicant: | MS MILTON |
| First Respondent: | MR PENFOLD |
| Second Respondent: | MS OWEN |
| File Number: | AYC 108 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | By Written Submissions |
| Date of Last Submissions: | 15 June 2018 |
| Delivered at: | Canberra |
| Delivered on: | 30 August 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Orman Solicitors, Wagga Wagga | |
| Solicitors for the First Respondent: | Denniston & Day, Wagga Wagga | |
| Solicitors for the Second Respondent: | Self-Represented | |
| Solicitors for the Independent Children’s Lawyer | Evans Family Lawyers, Canberra | |
ORDERS
The Applicant be granted leave to admit the medico-legal Report of Dr J dated 19 March 2018.
The Mother’s [implied] Application to re-open be dismissed.
All other outstanding Applications be dismissed.
The Court Orders dated 21 December 2016 remain in force.
The parties are to attend mediation to formalise the Mother’s regular time with [X] and, if no agreement can be reached, the Orders of 21 December 2016 remain in force.
There be no Order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Milton & Penfold & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
AYC 108 of 2015
| MS MILTON |
Applicant
And
| MR PENFOLD |
First Respondent
And
| MS OWEN |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 21st December 2016, final parenting Orders were made in relation to now 5 year old [X]. Due to a very serious brain injury, the Mother took no active part in the final hearing. The Mother continues to live with her children (to different Fathers) with the maternal Grandmother (who might be described as the “primary” Respondent at trial). This doubtlessly busy household runs, from the Mother’s perspective, with varying degrees of assistance from her Mother, although now, to a significant degree, with the aid of various “systems”, which allow the Mother to live a relatively independent life.
At the final hearing in 2016, the maternal Grandmother was represented by solicitors who now – somewhat curiously perhaps - act for the Mother for the purposes of the current Application(s). The Grandmother is now self-represented.
The Mother seeks to re-visit the Final Orders made by the Court in December 2016.
Procedural Considerations
Formally, there are the following Applications before the Court (summarily stated):
(a)The Mother’s Application, filed 14th June 2017, in which she sought a stay of, and to vary, the Final Orders made on 21st December 2016 and most significantly by the child living primarily with the Mother, and spending regular time with the Father;
(b)The Respondent maternal Grandmother filed a Response on 16th November 2017, in which she sought almost identical Orders to those sought by the Mother;
(c)The Father’s Response, filed 8th December 2017, which simply sought that the child was not left unsupervised with either Mr J or Ms M, and otherwise that the Mother’s Application be dismissed; and
(d)An Application in a Case, filed by the Mother on 9th May 2018, in which she sought that leave be granted to admit the medico-legal Report of Dr J (plus costs). This Application was filed by the solicitors who formerly acted for the maternal Grandmother.
As a matter of procedure, alarmingly, no one has ever sought to re-open the matter. It is implicit in the Mother’s and Grandmother’s Applications, but no Order is actually sought to re-open. This is a fundamental procedural flaw with the Applications. Strictly speaking, the Court cannot (and should not) deal with the other Applications unless and until such an Application has been made. Not to have made this Application to re-open would entitle the Court simply to dismiss the current Applications. For current purposes, noting this basic and fundamental flaw, I will nonetheless proceed to deal with the other Applications on the basis of what has been filed.
Written submissions were filed (as noted later in these reasons) in relation to each of these Applications and Response. Formally, there was no Response by any party to the latest Application in a Case, save that it was addressed in the submissions.
More summarily, these Applications may be considered essentially under two aspects: (a) whether the very late-filed Affidavit, filed 9th May 2018, which annexes to it an expert medical Report regarding the “neurological” assessment of the Mother from Dr J, dated 19th March 2018, should be admitted, and (b) whether this Affidavit/Report is admitted or not, whether the long-established principles articulated in Rice & Asplund - and refined in many more recent cases – assists or thwarts the Mother’s Application to re-open the proceedings.
I should note here that in the Mother’s submissions, it is confirmed that the Report of Dr J was obtained only after she had seen earlier submissions from the Father and the Independent Children’s Lawyer (“ICL”), which were filed in accordance with Orders made on 13th December 2017.[1]
[1] See Mother’s Submissions, filed 14th June 2018) par.7.
Thus, having the benefit of seeing everyone’s submissions, the Mother only then considered that her current Application, filed 14th June 2017, was deficient from an evidentiary perspective. This might reasonably beg the question even more so as to whether the Mother should be permitted to rely upon Dr J’s Report because, on its face, there must be an element of procedural unfairness in allowing someone to seek to bolster their case after having seen the submissions of the other parties and the ICL. Indeed, having seen the submissions of the other parties allowed the Mother to make a fresh assessment of her case. Plainly, a view was taken that her case need to be bolstered because the evidence relied upon in the first instance was recognised to be deficient.
Indeed, if this late-filed Report was permitted to be relied upon, it would potentially open the flood-gates to similar Applications in other matters in the future: that is, to admit further evidence once all the evidence is closed, shortly before judgment is delivered, and after everyone has filed their submissions. If this course were allowed it would follow that, with having the benefit of seeing Dr J’s Report of March 2018, the Father should now have the opportunity to seek a different opinion, however late in the day it now is. On the basis of the Mother’s Application, the evidence would never close!
In a somewhat similar vein, Dr J’s Report is dated 23rd March 2018, yet it was not made available to the Father or the ICL until 24th April 2018. This one month delay is not explained. This delay is another “negative” aspect of the Mother’s (and maternal Grandmother’s) Application.
Moreover, the matter was listed for delivery of judgment when the Mother made the further Application on 9th May 2018 for Dr J’s Report to be admitted into evidence. In my view, rather bizarrely, in the same Application the Mother sought an Order for costs. This is in circumstances where the only action that has occasioned any delay in the delivery of reasons are the actions of the Mother and her legal team: namely, (and leaving to one side issues of funding which are set out in submissions) (a) by getting an expert Report only after the Mother had seen the written submissions of the other parties; (b) the further delay in providing the Report to the other parties; and (c) just before delivery of judgment, filing a late Application to admit the Report into evidence.
In summary on procedural matters:
(a)Formally, there is no Application to re-open. This is a fundamental procedural flaw;
(b)The medico-legal Report of Dr J was sought, and an Application to admit it into evidence, only after the Mother saw the submission of the Father and the ICL. It is procedurally unfair for the Application to proceed on this basis;
(c)The medico-legal Report of Dr J was not provided to the Father and the ICL in a timely manner.
Individually, as well as collectively, these grounds are more than sufficient to dismiss the Mother’s (and Grandmother’s) Applications. Indeed, the procedural unfairness of the Mother seeking to rely upon a Report that was procured only after the written submissions of the Father and the ICL were provided of itself is of such serious moment of itself to warrant the Mother’s Applications (and the derivative Grandmother’s Applications likewise) to be dismissed. Moreover, in my view it would not be in the child’s best interests for the matter to proceed on such unsafe and flawed procedural and evidentiary grounds.
Further, in the light of the conclusion(s) I have reached, procedurally and otherwise, it is unnecessary for me to deal with the stay Applications of the Mother and the maternal Grandmother.
Notwithstanding and in addition to what I have just said, for the reasons that follow, although the medical report of Dr J will be admitted, it adds very little to the already known medical landscape, although it does offer one particular piece of information regarding the Mother’s prognosis which, in my view, only adds to the Mother’s procedural difficulties regarding the current Applications. In all of the circumstances, the substantive, albeit implied, Application to re-open, and all other Applications, must be dismissed. There should, however, be mediation between the parties to address and formalise relevant detail regarding [X]’s time with her Mother.
Evidence – General Comments
Briefly stated, formally, the evidence in this matter is in two parts: (a) the evidence of the parties, and (b) the evidence from the Mother’s health professionals. It is really the latter that carries the principal evidentiary weight, relatively speaking, and is the prime focus of the submissions and the Court’s consideration. Moreover, the evidence of the parties is substantially summarised in the written submissions which will be the principal procedural and substantive focus of the Court.
The Mother’s evidence in support of her Application to re-open proceedings was contained in Affidavits, filed respectively on 14th June 2017 and 25th January 2018, as well as the Affidavit in support of the Application in a Case, filed 9th May 2018. This last Affidavit has annexed to it, multiple times, the Report of Dr J.
In many respects, the Mother’s material, understandably, is rather dependent upon the evidence from her treating health care professionals.
One immediate and striking feature of the Mother’s evidence (and the Grandmother’s evidence also, for that matter) is the relative lack of detail regarding the Mother’s “capacities” outside the home. True it is that there is evidence that she (a) cannot drive and will never be able to do so, (b) has set up (with her Mother and others) safety systems at home, and (c) the Mother is now able to walk to the shops and otherwise, and uses a cane for general support. However, for my part, I would have been assisted had there been more attention to the detail of the limitations, as well as the positives, regarding the Mother’s ability to care for and look after her young children when out of the home and its environs. Nor is there any comment or reference at all to what would happen should the Mother no longer have the support of the maternal Grandmother.
The primary, independent evidence is from Dr J. He refers to (and annexes copies of) reports from other health professionals. In what follows, I look firstly at the evidence of these other health professionals, before then considering Dr J’s report.
The Mother’s Health Care Professionals
The Occupational Therapist: Ms E is the Mother’s occupational therapist. An Affidavit on her behalf was filed on 23rd November 2017, which annexed a letter, dated 19th June 2017. There is also a letter from Ms E (albeit undated) that is attached to the Mother’s Affidavit, filed 25th January 2018. The Court may reasonably assume that this letter was prepared after Ms E’s Affidavit of November 2017 had been filed. I note the following, as briefly as possible, from Ms E’s evidence, including her later, undated “updating” letter.[2]
[2] There are some other health care professionals (e.g. speech pathologist) whose reports or comments are noted in or annexed to the Mother’s material. In my view it is sufficient for present purposes to deal with those mentioned here.
In her letter, dated 19th June 2017, Ms E confirmed that the Mother had “residual cognitive and visual field deficits.” She confirmed further that:
(a)Meal times were generally shared between the Mother and maternal Grandmother, which included shared responsibility for preparation of them;
(b)The Mother’s sight impairment is mostly on her right side;
(c)There were no “access” issues for the Mother in her own home. There is a system in place for most things, including the care of the children’s clothing;
(d)The Mother’s capacity for use of “white goods” was not fully assessed but she noted that there is a “safety system” in place;
(e)There is also in place an appropriate “system” to deal with medication required by one of the children;
(f)Notwithstanding the Mother’s improvement, there remained certain levels of impairment and that the systems that have been put in place are designed to assist the Mother in the light of them;
(g)The Mother was capable of caring for the children “in the home”. This qualification is, in my view, important. Again, Ms E noted that both the Mother and the Grandmother have systems “in place” to assist the Mother in her daily life and in the care of her children.
The Mother’s General Practitioner: The Mother’s GP is Dr B. His evidence came in the form of a letter, dated 12th January 2017, which is annexed to the Mother’s Affidavit filed 14th June 2017. In that letter, the GP stated that the Mother is “now functioning at a normal level and her main residual issues is very poor eyesight.”
Annexed to this Affidavit of the Mother is also a letter from her radiologist, dated 7th November 2016. However, given its date, and the later evidence, I do not propose to address it.
The second aspect of Dr B’s evidence is an Affidavit, filed 13th November 2017. After outlining his extensive qualifications and experience over 43 years, and his long-time treatment of the Mother, the primary part of his Affidavit comprised a series of annexures, which included a copy of his 12th January 2017 letter, which had in fact been annexed to the Mother’s Affidavit filed on 14th June 2017. His brief letter simply recorded that (a) with the help of the Brain Injury Unit the Mother had made “a good recovery physically and mentally”; (b) she is now off all medication; (c) “She is functioning at a normal level and her main residual issues is [sic] very poor eyesight; and (d) “In my opinion there is no medical impediment for her caring for her 4 children.”
In my view, what is particularly striking about the evidence of Ms E and of Dr B is that neither of them address the capacities of the Mother outside the home. This is a striking and significant omission. And as noted below, the same is true about the evidence of Dr J to which I now turn.
Evidence of Dr J: Dr J is a consultant neurologist in Sydney. The first 4 pages of his Report recount the medical and relationship history of the Mother, including her use of drugs. This was canvassed in other Reports and need not be re-told here. I need only record the comments from his “conclusions”, thus (emphasis added):
(a)Although the Mother “was starting to make gains, she and her children were totally dependent on her Mother in the period around late May 2015”:
(b)There has been steady improvement with her rehabilitation since that time;
(c)Dr J concluded: “Currently it is my view that Ms Milton is capable of the independent care of her children but clearly it is important that she have the continuing psychological support of her Mother and sister as well as carer support from the rehabilitation unit. It is my view that Ms Milton’s physical condition is now stable with no further improvement to be expected.”
(d)On p.3 of Dr J’s Report, he records the Mother confirming that she has made significant gains especially in her confidence and being able “to manage her children in the setting of her Mother’s home.” (emphasis added)
Before considering the multiple submissions filed in the matter, I make the following observations in relation to the evidence.
First, the Mother’s health and day-to-day abilities and skills have clearly improved compared to what they were in 2016. This is confirmed by the evidence from her various treating and consulting health care professionals.
Secondly, the maternal Grandmother confirmed that, outside of her house and its routine she assists the Mother on a regular, if not daily, basis.
Thirdly, as already noted a number of times, there is no evidence from the Mother’s treating health professionals about the Mother’s capacities outside of her home environment. Nor is there any comment about what her capacities might be should she not have the assistance of one or more of her supports to which Dr J refers in his Report, those being her own Mother, her sister, and carer support from the rehabilitation unit. In my view, as a matter of evidence alone, the Mother’s Application to re-open the proceeding cannot succeed. And even if there was this evidence, there is no guarantee that it would do so in any event.
Fourthly, the evidence from both the Grandmother and the Father confirm that there remains significant difficulties between these important figures in the child’s life, as there were at the trial and which were commented on in the reasons delivered in December 2016.
Fifthly, while there has been some significant improvement in the Mother’s health and daily skills, she still needs regular assistance and remains, to some degree, sight impaired. The Mother and Grandmother maintain a range of supported parenting functions that are undertaken in the Grandmother’s home. This is all to the good.
The Applicant Mother’s Submissions
The first submissions of the Mother were filed on 24th January 2018 in relation to the Rice & Asplund issue.[3] They were as follows:
[3] I note that there were two sets of submissions filed on this date, one of which concerned the Mother’s Application for a “stay” in relation to the Orders made in December 2016. Here I deal only with the submissions that deal with the Mother’s substantive Application in the light of the principles from Rice & Asplund and later cases.
Applicant Mother’s Written Submissions Addressing the Rice & Asplund Threshold Issue.
1) This is a parenting matter concerning [X] born 2013 and currently aged 4 years old. Final Orders were made on 21 December 2016 after a defended hearing. Due to significant health issues suffered by Ms Milton as a result of an aneurysm in 2014, the applicant mother was not able to actively participate nor was she legally represented during the previous proceedings. These submissions should be read in conjunction with the submissions filed with respect to the applicant mother’s stay application and evidence she has filed to date.
2) The Court is required to consider whether there has been a significant change warranting rehearing of this matter pursuant to the principles in Rice & Asplund.
3) The recent Full Court decision of O’Brien and O’Brien reiterated the considerations for the Court in determining whether it should embark on another hearing concerning the parenting arrangements for a child. These considerations are as follows:
a) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
b) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
c) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
4) The applicant mother submits that the Court would be satisfied that there has been a significant change that warrants the Court revisiting this matter. The bases for this submission are as follows:
The past circumstances, including the reasons for the decision and the evidence upon which it was based.
5) The applicant mother was unable to participate in previous proceedings due to the serious medical condition from which she was suffering. The Court did not have the applicant mother’s evidence before it at the time that a determination was made in December 2016.
6) The Court had limited information about the applicant mother’s medical condition and care of [X] which was provided by way of the maternal grandmother’s evidence.
7) At hearing in May 2016 the evidence before the Court was that the applicant mother was experiencing difficulties. In December 2016 the evidence before the Court was that there had been improvements in the applicant mother’s circumstances. However, it does not appear that any weight was or could be placed on that evidence by the Court nor was it an issue explored in any depth in those proceedings. At paragraph 7 of the Judgment it is noted that:
“In updating material filed 14 December 2016 the court was advised by the grandmother that the mother is doing significantly better than when the matter was heard, that her relationship with [X] is progressing well and that she does not require the same level of support that was previously necessary. It may nonetheless still be inferred that the Mother needs adult support. As helpful and encouraging as this information is, it does not go to any specific issue that is formally before the Court for determination, particularly given that the mother (Ms Milton) does not seek any parenting Orders.
8) Reference is then made in the judgment to the applicant mother’s circumstances as detailed in the trial affidavit of the maternal grandmother dated 4 May 2016. The evidence at that time detailed the mother’s limitations and difficulties in caring for [X] at that time.
9) There have been ongoing developments with the applicant mother’s health and her capacity to care for [X] and her other children since Final Orders were made. The medical evidence now before the Court demonstrates the remarkable improvements in the mother’s health and capacity to care for [X][4]. The mother’s evidence is that she is now the primary carer of [X] and requires only limited support.
[4] Affidavit of Dr B, 13 November 2017, 1-7 and affidavit of Dr E 19.6.17, 1-5.
Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
10) In circumstances where the Court embarked on a re-hearing of this matter, the Court would have before it evidence directly from the mother and her treating practitioners. The mother’s evidence is that her health condition is now markedly improved and she is able to be largely independent in her care of all of her children and is the primary carer of [X].
11) The current Orders do not provide the mother with any parental responsibility for [X] and only provide for [X] to spend time with her mother “during such time that the child is in the care of the second respondent providing that the time with the mother be supervised at all times by the second respondent or other competent adult”.
12) Arguably, in making an order that such time be supervised the Court has placed weight on evidence that the mother experienced difficulties in caring for [X] due to her health condition and the associated limitations she experienced.
13) If the Court was to accept that the mother’s health had drastically improved as is demonstrated by the available medical evidence, arguably the current Orders would need to be varied with respect to parental responsibility, lives with and spend time with arrangements so as to include the mother who is undeniably a significant person in [X]’s life.
14) In circumstances where [X] has lived with the maternal grandmother and applicant mother for the majority of her life and the mother is now the primary carer of [X] and has been since around December 2016 but where Orders will ultimately graduate to allow for supervised time only between the mother and child, the Court would be persuaded that the matter should be revisited in light of this change.
If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
15) The applicant mother’s evidence is that there has been a dramatic improvement in her health to the extent that she is now [X]’s primary carer. The evidence demonstrates that the applicant mother is able to care for [X] and meet her needs. If the Orders were made in accordance with those sought by the mother then there would be only limited change to [X]’s current circumstances, whereby she lives in the home of the maternal grandmother with the maternal grandmother, mother and her siblings and spends one day per week with the father in the first week and in the second week spends from Monday until Sunday with her father.
16) However, the mother seeks that the orders currently in place be suspended as they provide for a gradual increase in time between the father and [X] so that eventually [X] will live with the father. On an interim and final basis the applicant mother proposes variation of the Orders to provide for [X] to live with her and spend alternate weekend time with her father. It is submitted that if the current Orders are not suspended then time will have progressed with the father to a point where it is likely to be disruptive to [X] if changes are made to the Orders.
17) In circumstances where the orders were suspended and time continued between the father and child on a fortnightly basis pending determination of the mother’s application to vary the Orders, there would be little disruption to [X] who is 4 years of age and would have no understanding of the proceedings.
18) In consideration of the very significant changes since the previous proceedings, whereby the mother is now the primary carer of [X], any potential detriment to [X] is outweighed by the need for the Court to reconsider this matter so as to ensure that the living arrangements are in [X]’s best interests.
Conclusion
19) Therefore, in circumstances where the mother was not able to actively participate in the previous proceedings, where she is [X]’s primary carer and where it is likely that the Court would make different Orders if it is accepted that the applicant mother’s circumstances have changed since 2016, the applicant mother submits that the threshold requirements have been met and the matter should be revisited by the Court.
The Mother filed a second set of written submissions on 14th June 2018 which related to her Application in a Case. These were as follows:
Applicant Mother’s Written Submissions
Background
1) Orders were made on 13 December 2017 requiring the parties to file written submissions in relation to the stay decision and the Rice & Asplund threshold decision. The submissions were required to be filed by 9 February 2018 and 16 February 2018 respectively.
2) The applicant mother filed an Initiating Application on 14 June 2017. The applicant sought to obtain a medico-legal report through an extension of aid grant with Legal Aid NSW for the purpose of supporting her application to vary the orders made 21 December 2016.
3) On 1 August 2017 the applicant mother was advised by her solicitor that the application for an extension of aid to fund a medico-legal report had been refused.
4) The applicant mother filed medical evidence of her health status by way of affidavits sworn by her general practitioner Dr B on 13 November 2017 and her occupational therapist Ms E on 22 November 2017.
5) The respondent father and Independent Childrens Lawyer (“ICL”) filed and served written submissions regarding the Rice & Asplund threshold decision on 15 February 2018 and 23 February 2018 respectively. The submissions filed by the ICL provide at [17], “It is submitted that the evidence currently before the Court does not demonstrate a significant change in the mother’s health and circumstances to warrant a rehearing of the matter.”
6) The submissions filed by the respondent father provide, “There is no objective base line in which to assess the mother’s condition at either the time of the hearing of the matter in June 2016 or at the time of the decision in December 2016.”
7) The applicant mother realised upon reviewing the submissions filed by the respondent father and ICL that her application was significantly disadvantaged by not obtaining a medico legal report.
Reasons for delay
8) In order for the applicant mother to privately fund and obtain a medico legal report she changed legal representation and instructed Orman Solicitors to act on her behalf on 15 March 2018. The applicant’s family provided the applicant with the funds to obtain a medico legal report.
9) The applicant obtained a medico legal report at her first available opportunity and had a consultation with Dr J, consultant neurologist, on 19 March 2018.
10) Dr J released the medico legal report to the applicant’s solicitor on 23 March 2018.
11) The report of Dr J, upon being reviewed by the applicant’s counsel, was circulated to the respondents and ICL on 24 April 2018. The writer sought the medico legal report of Dr J be admitted by consent and explained the applicant was unable to obtain a medico legal report prior to the report of Dr J due to financial limitations.
12) The respondent father’s solicitor and ICL responded in correspondence dated 30 April 2018 and 1 May 2018 respectively stating they did not consent to the report being admitted by consent.
13) The writer filed an Application in a Case at the earliest opportunity being 9 May 2018 seeking that leave be granted to admit the medico legal report of Dr J.
Admitting the evidence
14) Murphy J provided in Summit & Summit and Ors (Re-opening) [2009] FamCA 365 at [16] “In cases where reasons for judgment have not been delivered, the High Court has held that the primary consideration should be embarrassment or prejudice to the other side.” We submit admitting the evidence would not provide embarrassment to the respondent father and ICL as they both made reference to requiring additional medical evidence of the applicant. Further admission of the report of Dr J does not prejudice the respondent father’s claim, which is for the applicant’s application to be dismissed, as the relevance of the report is contained to the discrete issue of the Rice & Asplund threshold decision. In addition prejudice to all parties has been mitigated as all parties have been provided an opportunity to provide written submissions regarding the admission of the report of Dr J.
15) Reid v Brett [2005] VSC 18 referred to by Murphy J in Summit & Summit and Ors at [17] provides, “… the exercise of discretionary power to re-open a case to admit further evidence where judgment has not been delivered was said to be as follows: (a) The further evidence is so material that the interests of justice require its admission; (b) The further evidence, if accepted, would most probably effect the result of the case; (c) The further evidence could not by reasonable diligence have been discovered earlier;…”
16) The medico legal report of Dr J is vitally material to the Rice & Asplund threshold decision as it objectively assesses the applicant’s significant change in medical circumstances from the date of the orders 21 December 2016 to 19 March 2018. In accordance with the written submissions of the respondent father and ICL regarding the Rice & Asplund threshold decision the material of Dr J is required in the interests of justice to ensure His Honour has sufficient medical evidence in deciding whether a significant change in circumstances has occurred.
17) The writer believes the admission of Dr J’s report would likely effect the result of the judgment as the applicant has been unable to submit sufficient medical evidence to demonstrate the change in her medical circumstances from the date of the final orders, 21 December 2016 to the date of her initiating application, filed 14 June 2017. The applicant was unable to provide a medico legal report prior to 19 March 2018 due to financial limitations and has attended to obtaining a medico legal report at her earliest opportunity upon financial resources permitting her to do so.
18) The applicant mother respectfully acknowledges the report of Dr J has sought to be admitted following the Court listing the matter for judgment in relation to the Rice & Asplund and stay decision. We submit the applicant has reasonably been unable to file a medico legal report at an earlier date and has sought to admit the report at her earliest opportunity.
19) The writer respectfully submits that the evidence be admitted in the interests of justice as it is crucially material to the decision of the Rice & Asplund decision.
The Respondent Father’s Submissions
The Respondent Father filed submissions on 15th February 2018 in relation to both the Rice & Asplund issue and to the Stay Application. His Rice & Asplund submissions were as follows:
RESPONDENT FATHER’S SUBMISSIONS
Current arrangements
Pursuant to the Final Orders made on 21 December 2016 (“the orders”) the child presently spends time with the father in alternate weeks:
(a) On Thursday from 9.00am to 5.00pm;
(b) From Monday 9.00am to Sunday 5.00pm.
Rice and Asplund Issue
There is no reliable objective base line in which to assess the mother’s condition at either the time of the hearing of the matter in June 2016 or at the time of the decision in December 2016.
Apart from her own contentions and the subjective observations of the maternal grandmother, the mother relies on the following evidence of “significant change” which is inconsistent and does not assist the mother:
i. Dr B letter dated 12 January 2017 - “She is now functioning at a normal level and her main residual issues (sic) is very poor eyesight.” The date of the Dr B letter is significant in that it makes no mention of any cognitive deficit and is written within weeks of the date of the decision and the updated report on the mother’s condition presented to the Court in December 2016.
ii. Ms E letter dated 28 March 2017 - “There are minimal problems with her vision...” There is no objective basis of assessment or nature of observations made in deriving her conclusions and this is contradicted by the mother’s own evidence.
iii. Ms E’s letter dated 19 June 2017 - Based on information provided by the mother and maternal grandmother in a context that is arguably more candid than the current proceedings, the mother at this time suffers unspecified “residual cognitive and visual field deficits …” that have not previously been noted by either Dr B or Ms E. On one view, the condition of the mother has deteriorated rather than improved since December 2016. The cognitive deficits have been observed by the father in March 2017 (see paragraphs 14 and 15 of the father’s affidavit of 8 December 2017).
iv. Ms E’s undated report annexed to the mother’s affidavit of 25 January 2018 - The mother is able to perform simplistic tasks in the home in the context of assessing vision difficulties. While Ms E does specifically address the issue, the mother appears to still have significant cognitive impairment. A number if the coping mechanisms observed by Ms E are not related to visual impairment.
It is submitted that the mother’s condition has not seen any significant change to the position stated at paragraph 7 of the Reasons for Judgment in the initial proceedings.
The Respondent Father filed a second set of written submissions on 14th June 2018 in relation to the Mother’s Application in a Case, which were as follows:
SUBMISSIONS ON BEHALF OF THE RESPONDENT FATHER IN RESPECT OF THE APPLICATION IN A CASE DATED 9 MAY 2018
The mother seeks leave to have admitted into evidence the medico-legal report of Dr J consultant neurologist dated 18 March 2018, presumably through tendering of the affidavit of Dr J dated 7 May 2018.
The authorities in respect of the circumstances in which leave to adduce further evidence should be given are stated in Adams and Adams [2014] FamCA 223 (12 February 2014) at paragraphs 25 and 26. The overarching principle is that to grant leave to adduce further evidence is an exercise of discretion, but must be guided and tempered by the interests of justice, taking into account a number of factors that “might be of importance” such as the nature of the proceedings, whether the occasions for calling further evidence should have been foreseen, the importance of the issue on which the further evidence is sought to be adduced, the degree of relevance and probity of the further evidence, the prejudice to the other party, the public interest in the timely conclusion of litigation and the explanation offered for the delay.
The nature of the proceedings
The substantive proceedings are an application by the mother to be allowed to re-litigate previous proceedings between the parties which have been determined following a lengthy hearing. In effect, the mother seeks to substitute herself for the maternal grandmother in fresh proceedings. In determining whether leave to admit fresh evidence, it is relevant that the current proceedings were commenced by the mother. She is not a respondent caught unawares by urgent proceedings.
Whether the occasion for calling of further evidence ought reasonably to have been foreseen
The mother (or at least the mother’s representative) was aware of the desirability of a medico-legal report on 6 June 2017 (M1, page 10), before the Initiating Application dated 14 June 2017 was filed.
The mother was made aware of the need for such a report in August 2017 (M1, page 9).
The importance of the issue on which the further evidence is sought to be adduced
Her medical condition at any point in time is only one of many issues that the mother will need to overcome in the substantive proceedings or on the Rice and Asplund issue. Other issues of at least equal significance are the maternal grandmother’s ambivalence towards the father, the child’s risk of harm at the hands of step-brothers, exposure to the mother’s former partner Mr S and the maternal grandmother’s age.
The degree of relevance and probative value of the further evidence
The actual report of Dr J is five pages in length. The first one and a half pages simply recite historical matters which are not in dispute and are of no probative value.
The part of the report headed “Medical Condition Around Late May 2015” is irrelevant in that it is based on the false premise contained in the Letter of Instructions annexed to the Affidavit which incorrectly states that the original proceedings between the parties were conducted in May 2015. The contents of the section are a rephrasing of material provided with the letter of instructions and are not conclusions based on Dr J’s experience or expertise. This is of no probative value.
The part of the report headed “Medical Situation Around Late December 2016” contains paraphrasing of an account given to Dr J by the mother and material provided with the letter of instructions which is already largely before the Court. The contents of this section are not based on Dr J’s expertise or experience. It has no probative value.
The section headed “Current Symptoms” is a paraphrasing of the mother’s subjective view of her circumstances. It is not expert evidence based on experience or expertise.
The section headed “Examination” does not contain any observations which were not available in the material provided with the letter of instructions.
The section headed “Conclusions” is of no relevance or probative value. The mother’s condition in May 2015 has never been in dispute and is irrelevant to the Application in a Case and substantive proceedings. Whether the mother is capable of independent care of the children is not a matter for expert evidence from a neurologist.
The most probative part of the Dr J affidavit is the letter at page 22 from Dr W to Dr B dated 7 November 2016 which has not previously been in evidence and indicates that at that time the mother had “successfully completed her rehabilitation” and was “virtually independent”. This is consistent with the letter of Dr B dated 12 January 2017 (addressed in previous submissions) which states that the mother is “now functioning at a normal level and her main residual issues is her poor eyesight. This does not assist the mother on the Rice and Asplund issue.
The prejudice to the other party
Prejudice has been occasioned to the father in that the delay in filing the Application in a Case means that the father has not been afforded an opportunity to make proper and timely submissions in respect of the additional material and also not assisted the proper preparation for transition of the child to the full time care and parental responsibility of the father from 1 July 2018.
The public interest in the timely conclusion of litigation.
The late application of the mother has appropriated valuable Court time in an already stretched Court system. Parties should be discouraged from unnecessarily prolonging Court time spent on matters, particularly where it has been indicated that the Court has reached or is approaching a final decision on matters in dispute.
The explanation offered for not having called the evidence.
Apart from financial considerations, no explanation is given for not having called the evidence and no explanation has been given as to why the Application in a Case was not filed until 9 May 2018 when the report of Dr J is dated 19 March 2018. There is no evidence that an application was made to Legal Aid for further funding after the initial rejection. The mother changing her representation to Orman Solicitors in order for a medico legal report to be obtained (para 9) is an illogical position.
The Application in a Case should be dismissed with costs payable to the First Respondent father.
The Second Respondent Maternal Grandmother’s Submissions
The Second Respondent Maternal Grandmother filed written submissions on the Rice & Asplund issue on 16th February 2018. These were as follows:
SECOND RESPONDENT’S WRITTEN SUBMISSIONS ADDRESSING THE RICE & ASPLUND THRESHOLD ISSUE.
Background
1) These are parenting proceedings relating to [X] (“[X]”) born 2013 currently 4 years of age.
2) The applicant mother was unable to partake in the initial proceedings commenced by the first respondent on 5 March 2015. The applicant mother was recovering from a brain aneurism. The second respondent acted as the primary carer of [X] from February 2014 until November 2016.
Outline of test to establish a significant change in circumstance
3) In Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725 at [78,905-06] Evatt CJ notes the rule to be;
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based…Therefore the court would need to be satisfied by the applicant…there is some changed circumstances which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…”
4) The test that the rule is to be applied to has been set out by the Full Court in Marsden & Winch [2009] FamCAFC 152 at [50];
“…The Court must look at:
1. The past circumstances, including the reasons for the decision and the evidence upon which it was based.
2. Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
3. If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.”
5) This test has been applied recently in the decision of Taybor & Anderson [2017] FamCA 1091 at [38] and the Full Court decision of O’Brien and O’Brien (2017) FamCAFC 219 at [22].
The past circumstances, including the reasons for the decision and the evidence upon which it was based.
6) The circumstances upon which the Judgment was based were that the applicant mother was medically unfit to partake in the proceedings commenced by the respondent father.
7) The evidence before the Court as at the time of hearing in May 2016 and in December 2016 when the decision was made in relation to the Applicant Mother’s health was limited. The second respondent maternal grandmother had filed two affidavits dated 13 May 2015 and 4 May 2016. The evidence provided an ‘Unfit to return to work’ certificate and that the applicant mother required a carer, continued support and occupational therapy.
8) The Judgment confirms it was based upon the above evidence in addition to updating material filed 14 December 2016 advising, “...the mother is doing significantly better than when the matter was heard, that her relationship with [X] is progressing well and that she does not require the same level of support that was previously necessary. It may nonetheless still be inferred that the Mother needs adult support...”
Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
9) In the event the matter was re-heard we propose there is a strong likelihood the Orders dated 21 December 2016 (“the orders”) would be varied significantly. The orders do not provide any parental responsibility for the applicant mother and for the applicant mother to spend time with the child during such time that the child is in the care of the second respondent.
10) The orders, based upon the evidence as discussed above, provide for the child to spend time with the second respondent two nights per fortnight from 1 July 2018.
11) The applicant mother’s circumstances have significantly changed since the date of the hearing in May 2016. The applicant mother’s health has drastically improved. Subsequently she performs household tasks such as washing, ironing, cooking, cleaning and cares for the children on a daily basis through bathing, dressing, playing and reading to the children. The applicant mother’s only residual health issue from the brain aneurism is impaired peripheral vision mostly impacting her right visual field. The applicant mother’s treating specialists have reported the visual impairment does not pose as an impediment to her ability to look after her children in the home.
12) The applicant mother is the primary carer of the child and has been since December 2016. The second respondent provides minimal assistance with home duties.
13) The child is stable in the mothers care.
14) The affidavit of Dr B dated 13 November 2017 states, “In my opinion, there is no medical impediment for her caring for her 4 children.”
15) The court should grant the Rice and Asplund as there are such significant improvements in the mother’s health. The court will require the mother to file further evidence in relation to her capacity to care for the child as opposed to her capacity in May and December 2016 taking into account the level of assistance provided by the second respondent. Noting that the mother is legally aided she will need to apply for a grant for the medical report. We note it may take some time for the grant and medical report to be prepared.
16) We strongly anticipate the result of a new hearing would result in the applicant mother being provided with more time with the child due to the requirement for the Court to determine the child’s best interests and maintain a meaningful relationship with both of the child’s parents.
If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.
17) In the event the orders continue the child will spend decreasing time with the applicant mother concluding with 2 nights per fortnight from 1 July 2018. The child and the applicant mother have formed a very close relationship. The child seeks comfort and attention from the applicant mother and becomes anxious, clingy and upset prior to changeover with the first respondent.
18) The child seeks more time with the applicant mother.
19) The potential detriment to the child of further litigation is far outweighed by the potential detriment to the child of decreasing time spent with her mother to 2 nights per fortnight and her anxiousness to spend more time with her mother.
20) It is within the child’s best interests for the orders to be varied to increase the time spent with the applicant mother in order to maintain a meaningful relationship with the mother.
Conclusion
21) We submit in the event the Court does not grant Rice & Asplund it will bring a further application from the applicant mother once the medical evidence is obtained which will be a waste of the Courts resources.
22) We submit the Rice and Asplund test has been satisfied due to the evidence upon which the orders were based, the likelihood of the orders being varied as a result of a new hearing and the potential detriment to the child of the orders continuing outweighing the potential detriment of a new hearing.
The Second Respondent Maternal Grandmother filed further submissions on 14th June 2018 in relation to the Mother’s Application in a Case. These were as follows:
1) I support the Medico Legal Report to be submitted as evidence.
2) I apologize for this report being late. Ms Milton was represented by Legal Aid. When it was realised Legal Aid had not applied for the extra funding to have a Medico Legal Report for the court, there was a family and friends meeting and it was decided, because the biological mother of the child [X] Ms Milton was not financial and the importance was great, I would give up the privilege of legal representation and dismiss Orman Solicitors who would then represent my daughter Ms Milton.
3) Ms Milton, with legal representation backed by family and friends was then able to have a Medico Legal Report completed for the court.
4) Ms Milton as a result of an aneurysm had a grade 4 Cerebrovascular event. She did not at first recognize any Family member and was unable to walk, talk, eat, or take care of personal hygiene.
5) Ms Milton now only has a slight limp on the right side.
6) Ms Milton was not able to enter the last court case in the Family Law Court for her daughter [X] as she was an inpatient at Region 1 Brain Injury Unit in Town A New South Wales. This is not the case now.
7) Ms Milton has sight in the left upper quadrant of each eye making her legally blind. Ms Milton works with Guidedogs and is connected to Vision Australia to improve her quality of life. A cane is use for the safety of herself and others. She has learnt to clockface scan to keep herself and others safe. This allows Ms Milton the freedom to cross a street alone, enter a bus or taxi cab and go shopping or to the gym without company. Ms Milton is also able to take her sons aged 9 years and 12 years of age to the Library, cinema, shopping or to visit friends. She also walks the boys to school without company. Ms Milton is aided by either NDIS, family or friends when taking her daughter [X] out but this would not be required for the long-term. This will change with the child’s age.
8) In the home there is not a problem. Ms Milton is able to run the household with minimal help. Ms Milton is able to care for her children. Cooking meals, packing lunches doing laundry and cleaning. She mows the lawn. Has had to learn schooling again and is now able to help her children with homework. She is able to administer her sons medication safely.
9) Ms Milton has taken on volunteer work as a visitor to the elderly with no family or friends to visit and is at the (location) for two hours Monday, Thursday and Friday Mornings. It not only benefits the elderly but helps prepare herself socially. She has enrolled with Centacare in Town B for Parenting Courses for 8 weeks and she continues to learn.
10) Ms Milton’s daughter [X] was enrolled in Town C Primary School for 2018 by the father Mr Penfold at age 4 years, 6 months. On the enrolment papers it stated father Mr Penfold and mother Ms K. I have no idea how legal proof was given to the school without Ms Milton’s name on the Birth Certificate. Communication to myself about enrolment was by phone “[X] had a good day at school today”. I was told to buy her school uniform and drive her to school each day she was here with me. Mr Penfold handed Ms Milton a bag when [X] was returned and said they had found an old uniform for her to wear until I ordered her more. I took the bag from Ms Milton and handed it back. He said what the hell is this and I told him its whatever you gave her and I didn’t want it. It was stated in the last court case by Mr Penfold he wished for what he gave his daughter stayed with him and what I gave [X] stayed with me.
11) I contacted the Education Department and spoke to Ms C. I unenrolled [X] from the primary school. At this very young age it is very traumatic with the changeover of families. The child is very clever but no matter how clever I feel, an 11 year old is too young for any child to take on peers in High School.
12) [X] has been in Goodstart 3 days per week. The offer was made to Mr Penfold for me to continue to pay but the offer was refused. There is also a Goodstart early learning in Town C where Mr Penfold resides with his partner. [X] is now in preschool until the end of this month 1 day a fortnight doing Prep Readiness for Kindergarten. At this stage, she will be enrolled in a Town C school for 2019 pending your decision. Ms Milton was asked by Centrelink if she had proof of being her mother. A copy of a Birth Certificate has been added to my records at Centrelink.
13) Mr Penfold refused to allow [X] to attend her siblings 12th birthday and said it’s not in the orders. My daughter Ms L asked why as it was only for three hours. Mr Penfold’s reply was for Ms L not to contact him again, she is nothing to do with [X]. Ms L is the main support person since [X]’s birth as well as mine and is Ms Milton’s biological sister.
14) I cannot imagine what it must be like to be a little girl and live in a house where you are not trusted to be in a room with other children on your own. To be investigated with her biological brothers by FACS/ JERT TEAM and cases closed with no evidence.
15) I ask for your consideration in this matter. Ms Milton has worked very hard with the motivation goal to raise her children again and be the best mother possible. Ms Milton will always have the support of family and friends.
16) There is no physical, mental or medical reason why Ms Milton cannot be given sole custody of all her children. With time granted for [X]’s father, Mr Penfold and sibling, sister [A], to continue to spend time with and get to know both sides of her family.
The Independent Children’s Lawyer’s Submissions
The Independent Children’s Lawyer filed written submissions on 16th February 2018 addressing both the Stay Application and the Rice & Asplund threshold issue. The submissions in relation to the latter are as follows:
INDEPENDENT CHILDREN’S LAWYERS WRITTEN SUBMISSIONS
1) These are parenting proceedings relating to [X] (“[X]”) born 2013, currently 4 years of age.
2) Judgment and Final Orders were delivered on 21 December 2016 (“the Orders”) following of a 2-day defended hearing of which the primary participants were the maternal grandmother and the father. The Orders provided for [X]’s time with the father to increase gradually until July 2018, at which time [X] will live with the father and spend 2 nights per fortnight with the maternal grandmother.
3) At the time of the final hearing in December 2016, it was determined that the mother lacked the requisite capacity to participate in those proceedings, and consequently, did not do so.
4) These written submissions address the stay application that has been made by the applicant mother and the Rice v Asplund threshold issue.
Rice v Asplund Threshold Issue
13) The Court is required to consider whether there has been a significant change warranting a rehearing of this matter pursuant to the principles of Rice & Asplund.
14) In Rice & Asplund Evatt CJ set out the principle as follows:
“The principles, which in my view, should apply to such cases are that the court should have regard to any earlier order and to the reasons for and the material upon which it was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation.”
15) The Court should only hear an application to vary an earlier order if it were satisfied that there:
“is some change circumstance which would justify such a serious step, some new matter arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material..”
...
“It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should be best served. These principles apply whether the original order was made by consent or after a contested hearing. The way the principles apply and the factors which will justify the court in reviewing a custody order will vary from case to case.”
16) The Court was presented with and gave consideration to evidence from both the applicant father and second respondent maternal grandmother and gave weight to the ICL’s submissions in the making of the final Orders. The mother, as the first respondent, was unable to take part in the proceedings due to her ongoing health issues and incapacity.
17) It is submitted that the evidence currently before the Court does not demonstrate a significant change in the mother’s health and circumstances to warrant a rehearing of the matter. Particularly so for any application for primary or shared care of [X].
18) The medical evidence, namely the letter from Dr. B, dated 12 January 2017 is over 12 months old. Moreover, the letter does not address in detail the significant improvement in health of the mother and her ability to care for her children, namely [X] beyond “functioning at a normal level and her main residual issues is very poor eyesight.” The ambiguous nature of such changes in the mother’s health does not warrant of itself a rehearing of the matter.
19) The affidavit of Ms Owen, dated 16 November 2017, as referred to above at para. 9, further demonstrates the mother is still reliant on adult support and assistance in the care of her children and herself. The material indicates the change in the mother’s circumstance is not so significant from her previous condition noted reasons for judgment to necessitate a rehearing of the matter.
20) The ICL submits that the mother has failed to demonstrate that there has been a sufficient change in circumstances that would warrant the rehearing of the substantive parenting issues.
21) However, there are no Orders in place for the spend time with arrangements for the mother and [X]. This more limited and discrete issue may warrant further consideration. The mother, father, maternal grandmother and ICL should participate in mediation in an attempt to resolve that matter before any further litigation is pursued. Such a mediation is likely to be able to be facilitated by the NSW Legal Aid Commission as an FDRC.
Further written submissions were filed by the Independent Children’s Lawyer on 15th June 2018 in relation to the Mother’s Application in a Case. These were as follows:
INDEPENDENT CHILDREN’S LAWYERS WRITTEN SUBMISSIONS
1) These are parenting proceedings relating to [X] (“[X]”) born 2013, currently 5 years of age.
2) The Applicant mother (Applicant) seeks leave to admit into evidence the medico-legal report of Dr J dated 9 May 2018 in support of her Application in a Case. The evidence, if admitted, would be accepted after the close of evidence and written submissions but ahead of the delivery of Judgement in respect to the threshold issue of Rice v Asplund. The issue therefore is, whether the evidence should be accepted and consider by the Court in the circumstances, and if so, what weight the Court should give that evidence.
3) The current proceedings commenced on 14 June 2017 by the mother seeking to agitate parenting Orders in her favour, particularly that [X] live in her primary care. This would be a fundamental departure from the final Orders made in 2016 which provided for [X] to ultimately live in the care of her father. The mother was not a participant in those proceedings.
Application to admit medico-legal report into evidence
4) Primarily, the ICL opposes the tender of the report on the basis that Ms Milton has had more than sufficient time to commission a medico-legal report and have it adduced into evidence since the commencement of the proceedings by Ms Milton in June 2017.
5) The proceedings commenced on 14 June 2017, and the mother failed to engage the services of Dr J for the purposes of making the report until 16 March 2018. Evidence adduced by the mother of the letter from Dr B dated 12 January 2017 and from her occupational therapist, Ms E, dated 28 March 2017 would tend to suggest that the mother was in a position to commission a medico-legal report to support her Application from as early as 2017.
6) In Sheldon v Weir the court re-iterated the principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 regarding the “limits” which may be imposed upon a party’s opportunity to present his or her case. In that matter the appellant was seeking to adduce expert evidence after adequate opportunity to do so and was denied the opportunity on the basis that the ‘new’ evidence was a mere reiteration of that already adduced.
7) Ms Milton has not been denied an opportunity to present her case with the support of extensive medical evidence. The additional report of Dr J does not adduce new evidence, but rather reiterates evidence of other medical professionals already adduced by the mother, and more broadly, is a recitation in many ways of the mother’s own self report of her current medical and social functioning.
The Report
8) In the event that the Court does accept the report into evidence, it is the ICL’s submission that limited weight be given to many aspects of the report. Dr J is a neurologist and is therefore qualified to provide an opinion as the neurological functioning of the mother. By his own admission in paragraph 2 of his affidavit sealed on 9 May 2018, he has never qualified as a psychologist or psychiatrist.
9) Whilst he is qualified to diagnose and report on the aneurism and Ms Milton’s current symptoms, the majority of the report is largely a self-reported statement of Ms Milton of the aneurism’s impact upon her capabilities and her daily routine. The report is largely a re-statement of the other medical evidence that has already been adduced in the proceedings to date.
10) Dr J is unqualified, as a neurologist, to cast a judgement on the capabilities of the mother as a parent, especially in circumstances where he has never interviewed the child nor observed the mother interact with the child. Dr J cannot provide any cogent conclusion as to the mother’s capacity to parent in the absence of an evidential basis to do so. No such evidential basis is revealed in his report, other than what the mother has advised. The mother’s evidence is untested and should be treated with some caution.
Conclusion
11) The ICL opposes the tender of the report into evidence at this stage in the proceedings, and in the alternative submits that the report be given little weight if it is accepted by the Court into evidence.
12) If admitted, the ICL submits that the evidence could not sufficiently advance the mother’s case such that she has overcome the onus on her to demonstrate that there has been a sufficient change in circumstances to re-open the proceedings generally.
13) The ICL maintains however, a more general consideration of spend time with orders might be appropriate, noting that there is no specific provision for the mother to spend time with [X] pursuant to the 2016 Orders.
Outline of Principle
I note the following from four of many Full Court decisions that deal with the principle first articulated by the Full Court in Rice & Asplund.[5]
[5] Rice & Asplund (1979) FLC ¶90-725.
Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[6] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not, and need not, set them out from his Honour’s judgment, save for his Honour’s comments at [48] and [81], which are as follows:[7]
[6] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[7] Warnick J’s comments in SPS & PLS were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].
[48] In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) “Shorthand” statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
[81] …in my view when the threshold question described in Rice and 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.
In 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington discussed further the principle and application of Rice & Asplund.[8] Among other things, the Court there said, at [72] (emphasis added):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
[8] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
Then at [80] and then at [82] - [84], the Full Court noted:
[80] In our view, that passage [at [81] in SPS & PLS] need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
[82] … the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
[83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
[84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….
In Marsden v Winch, the Full Court observed, at [50]:[9]
Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[9] Marsden v Winch (2010) 42 Fam LR 1.
In 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[10] At [43], their Honours commented on the rule in Rice & Asplund:
If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.
[10] Poisat & Poisat (2014) FLC 93-597.
Most recently, in Carriel v Lendrum, a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle or rule in Rice & Asplund.[11] At [46], their Honours said (emphasis added):
… we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….
[11] Carriel v Lendrum (2015) 53 Fam LR 157.
After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [42]), at [56], the Full Court said:
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Act in determining where the best interests of the child might lie.
Then at [57], their Honours stated (emphasis added):
In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):
Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to 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.”
Recently, in Walter & Walter, the Full Court (May, Ainslie-Wallace & Murphy JJ) dealt with an appeal in relation to a so-called Rice & Asplund matter.[12] In the course of the disposition of that unsuccessful appeal, by reference to most of the cases to which I have already referred in these reasons, I note briefly the following.
[12] Walter & Walter [2016] FamCAFC 56.
First, at [51] – [57], Ainslie-Wallace J said (May J agreed with her Honour’s reason as well as those of Murphy J):[13]
[51] Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
[52] It was argued for the mother that his Honour erred in finding that she had failed to demonstrate a sufficient change in circumstances to justify re-opening the parenting proceedings.
[53] His Honour concluded at [100] that the facts did not establish “a new and vital change in the circumstances”, and found that it was “obvious” that Amber had been anxious for some time and that anxiety had from time to time manifested itself in her refusing to go to school. He went on to offer what he considered to be the reasons for this, including that she had recently commenced high school. He thus found at [111] that the mother’s evidence did not establish a material change of circumstances in the necessary sense.
[54] The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296.
[55] In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not open to his Honour on the evidence before him.
[56] Thus it was argued that, had his Honour indeed taken the mother’s evidence at its highest it was not open to him to find that there had been no material change in circumstances. It was further argued that both his Honour’s conclusion that the child had always been anxious, and that her present refusal to attend school was a manifestation of a pre-existing condition and was probably due to her attending a new school, were findings unsupported by the evidence.
[57] His Honour’s finding that the child’s present anxiety and refusal to attend school was unsupported by the evidence. However, it was a conclusion reasonably open to his Honour given the accepted increase in her refusing to attend school and anxiety generally with the beginning of a new school regime. It could not be said that the conclusion was not open to his Honour. His Honour’s findings clearly accept the parties’ position that Amber’s anxiety and school refusal had escalated. The issue for his Honour was whether these circumstances led to the conclusion that there had been a material change in circumstances. His Honour found that they did not. That was a determination open to him and I find no error in his conclusion. This challenge is not made out.
[13] More recently still, see the general comments of Ainslie-Wallace J in O’Brien & O’Brien [2017] FamCAFC 219 at [21] – [25], Aldridge and Watts JJ concurring.
In his consideration of the challenge regarding the trial Court’s assessment of whether there had been a material change in circumstances, Murphy J said, at [83] – [86]:
[83] In any event, while the arguments in support of the contention are framed as challenges to “principles” relating to the rule, they are, in essence, challenges to the weight which his Honour attached to aspects of the evidence.
[84] In my view, the findings made by his Honour were entirely open to him on the evidence and it was entirely open to his Honour to include the matters to which his Honour made reference in reaching a determination that a material change in circumstances was not established.
[85] In that respect, it has been held recently that:
… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…[14]
[14] CDW v LVE [2015] WASCA 247, at [88] per Martin CJ.
[86] In my view his Honour made no error as asserted on behalf of the mother.
Then, after referring at a little length to Warnick J’s decision in SPS & PLS, at [110] – [116], Murphy J continued (internal citations omitted; emphasis added):
[110] The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
[111] In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.
[112] However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.
[113] It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
[114] In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “… even where the evidence demonstrates a material change since the previous order”.
[115] Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
[116] It is not established that his Honour erred in law; that he failed to take account of relevant considerations; that he took account of irrelevant considerations or committed any other discretionary error. No error in the exercise of his Honour’s discretion is pleaded nor can any be seen in his Honour’s reasons.
Consideration & Disposition
First, having regard to the principles to which I have referred and the facts outlined, in my view, there is not a “sufficient change in circumstances” so as to warrant the matter being re-opened and re-run. This is especially so where there has been ample opportunity to obtain relevant evidence. But even the very latest evidence essentially confirms what the Mother’s Occupational Therapist and GP had already stated regarding the Mother’s capacities and abilities to care for her children inside the Grandmother’s residence. There remains nothing about the Mother’s capacities and abilities outside the residence of her Mother. Nor is there any evidence of the Mother’s capacities should any of her three main supports (Grandmother, sister and assistance from the rehabilitation unit) no longer be available. These are very significant evidentiary lacunae. Even taking account of such very late-breaking and procedurally unfair evidence on the Mother’s behalf, the very significant evidentiary gaps to which I have referred remain.
Secondly, while it is genuinely wonderful that the Mother’s health has improved, nonetheless there remain some significant limitations to which her own evidence attests.
Thirdly, for ease of reference I refer [again] to the comments of Warnick J in SPS & PLS, cited earlier, and which have most recently been affirmed by the Full Court in Marsden & Winch and again in O’Brien & O’Brien;
… (2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
In my view, on the basis of the evidence available, it is unlikely there would be much of a variation, if any, of the Orders made in December 2016, precisely because of the impressive evidence of the Father and his partner, as well as the gaps and concerns about the Mother’s evidence and her capacities to which I have referred. It is likely that there would be some variation of them to formalise the Mother’s time with the child, but apart from that, it is highly unlikely that there would be much or any other change. Those kind of variations can properly and more expeditiously be dealt with at mediation, which should occur. They do not warrant a new trial. Moreover, it would not assist the parties, or the child, to be embroiled in further litigation, when all that could be gained is a potential, relatively modest adjustment of or to the Final Orders.
Otherwise, I accept and adopt the submissions of the ICL. I take the same position regarding the Father’s submissions.
Because of my conclusion with respect to the application of the principles from Rice & Asplund, formally it is unnecessary to deal with the Mother’s (and Grandmother’s) Application for a Stay of the Orders. However, for the same or similar reasons, I accept the ICL’s submissions and formally refuse the stay.
In my strong view, the very significant procedural flaws referred to earlier in these reasons regarding the Mother’s (and Grandmother’s) Applications severely hampered the Father and the ICL (and the Court) in the conduct of the matter. Those flaws were so significant that they alone would have been sufficient to refuse the Applications. Indeed, they were so flawed that a quite strong case for costs in the Father’s and the ICL’s favour could reasonably have been run.
In the result, however, the Court’s Orders will be that: (i) the Mother’s Application to allow the use of the Affidavit and Report of Dr J be granted; (ii) the Mother’s [implied] Application to re-open the parenting proceedings be dismissed; (iii) all other outstanding Applications be dismissed; and (iv) the parties are to attend mediation to formalise the Mother’s regular time with [X]; otherwise the December 2016 Orders remain in place. I make no Order for costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 30th August 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Appeal
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Costs
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Procedural Fairness
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