Newtober and Newtober
[2015] FamCA 1046
•27 November 2015
FAMILY COURT OF AUSTRALIA
| NEWTOBER & NEWTOBER | [2015] FamCA 1046 |
| FAMILY LAW – CHILDREN – Where final parenting orders were made in 2012 – Where the mother has initiated new proceedings seeking similar orders to relocate with the children to Country E and consequential parenting orders – Threshold Rice & Asplund issue – Consideration of changes in the circumstances since final orders were made – Where there is no circumstance that would justify the re-litigation of the issue of relocation – Where further proceedings would not be in the best interests of the children. |
| Neilson & Nielson [2012] FamCA 939 |
| APPLICANT: | Ms Newtober |
| RESPONDENT: | Mr Newtober |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Bankstown Family Law |
| FILE NUMBER: | SYC | 4651 | of | 2011 |
| DATE DELIVERED: | 27 November 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 29 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Kennedy |
| SOLICITOR FOR THE APPLICANT: | Newnhams Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Boyle |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW Parramatta Family Law |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Bankstown Family Law |
Orders
That the mother’s application filed on 8 December 2014 be dismissed.
That in the event of any application for costs the father file and serve written submissions within 28 days from this date and the mother file and serve any submissions in response thereto within a further 14 days thereafter.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newtober & Newtober 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 PARRAMATTA |
FILE NUMBER: SYC 4651 of 2011
| Ms Newtober |
Applicant
And
| Mr Newtober |
Respondent
REASONS FOR JUDGMENT
Overview
The applicant mother has made a parenting application to this Court seeking orders that in summary that would facilitate her relocating with the subject children B born in 2006 and C born in 2008 in Country E and consequential orders that she have sole parental responsibility for the children and that the father have time with the children in Country E and in Australia should she be permitted to relocate.
The father has responded seeking a dismissal of the mother’s application.
The mother’s application is brought before the Court in circumstances where there was a similar application made by her to this Court sitting in Newcastle. The mother’s then application was heard over a period of four days in October and November 2012 with a lengthy judgment being delivered by Austin J on 14 November 2012 (Newtober & Newtober [2012] FamCA 939).
In summary the orders made on 14 November 2012 provided:
a)That the mother and father have equal shared parental responsibility for the children;
b)That the children live with the mother;
c)That the children spend time with the father on alternate weekends during school term together with a Wednesday overnight in each week and half the school holidays;
d)In addition the Court made a number of specific issues orders relating to a communication, the children’s passports, non-denigration and exchanging information relating to the children’s activities.
The mother’s further application filed on 8 December 2014 just two years after her previous application had been determined by the Court raises issues as to whether it is in the best interests of the children to permit the substantial issue of relocation to be the subject of further litigation and indeed protracted litigation having regard to the present delays in the allocation of final hearing dates.
The mother’s application came before the Court on 29 October 2015 by agreement for hearing as to this threshold issue more often referred to as the “rule” in Rice & Asplund (1979) FLC 90-725.
In Prewett & Mann [2013] FamCAFC 130 the Full Court succinctly considered the “rule” as follows:
THE RULE IN RICE & ASPLUND
7. The “rule” in Rice & Asplund refers to remarks made by Evatt CJ in that case at [78,905-06]:
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. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance 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 …
8. Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
9. The rule is a manifestation of the best interests’ principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).
10. As to the application of the rule, the Full Court in Marsden v Winch (2009) 42 Fam LR 1 said:
50. 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.
11. Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which governs determination of the applications before his Honour, have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.
Background
The relationship history is conveniently considered in the Reasons for Judgment of Austin J (Newtober & Newtober (supra)):
4. The parties met and formed a relationship in [Country E] in 2000 while the father was travelling overseas.
5. The father returned to Australia in September 2000 and the mother followed him to Australia some months later in December 2000. They engaged to marry in January 2001, after which the mother obtained a spouse visa entitling her to reside in Australia.
6. The parties married in …2002 and thereafter lived in Australia.
7. Two children were born to the parties’ relationship. The eldest child was born in 2006 and the youngest child was born in 2008. They are now aged six and four years respectively.
8. The parties finally separated in September 2010 while they were in [Country E], following which the father returned to Australia alone and the mother and children remained in [Country E].
9. Upon his return to Australia the father caused the institution of proceedings under the Hague Convention on the Civil Aspects of International Child Abduction seeking orders compelling the return of the children to Australia. Orders to that effect were made in Country E in January 2011 and the mother’s appeal against those orders was dismissed in March 2011. The mother and children returned to Australia shortly thereafter.
10. Once the mother and children returned to Australia the children remained living with the mother, but spent time frequently with the father.
11. For some months the parties negotiated parenting arrangements for the children but failed to reach any satisfactory final agreement. The father therefore instituted these proceedings in August 2011.
12. Interim parenting orders were made on 15 December 2011 with the consent of the parties. Those orders essentially provided for the children to live with the mother and to spend time with the father for four nights per fortnight (being three nights in the first week and one night in the second) and for half of school holiday periods.
13. The parties subsequently negotiated a change to the nights spent by the children with the father, but the change did not materially affect the overall duration of time spent by the children with the father. The parties, however, have different perceptions as to why that change was made. The father alleged it was to ensure the children’s visits to him were more regular, whereas the mother implied it was to suit the father rather than the children. In any event, the parties adhered to those arrangements pending the trial.
14. It is uncontroversial that the children will remain living with the mother, wherever that may be, despite the father having told the Family Consultant he would seek residence of the children. The mother deposed that she would remain resident in Australia, caring for the children, even if orders were made precluding their relocation to [Country E.] The father’s proposal demonstrated his expectation the children would remain living with the mother in either [Country E] or Australia, and further, he said in cross-examination he could not and would not relocate to [Country E] even if the mother and children did so.
It is relevant as to the background to note his Honour’s findings at [139]-[144]:
139. The argument therefore distilled to whether the children’s interests were best served by them living with the mother in Country E or in Australia.
140. The prospective loss by the children of their meaningful relationships with the father and the consequent detriment they would experience is a compelling feature of the case which militates in favour of the children continuing to live in Australia in reasonable proximity to the father.
141. As the Family Consultant said, that loss would likely occur simply by virtue of the infrequency of personal interaction between them if the children lived in Country E, regardless of the mother’s intention. But the probability would become a certainty if the mother deliberately engineered the replacement of the father in the children’s lives with her fiancé, as she suggested to the psychologist would happen. The difficulty faced by the father in being able to travel to Country E to sustain the children’s relationships with him would only serve to compound the problem.
142. While the mother will be disappointed if the children are constrained to residence with her in Australia, she is not likely to suffer emotional collapse and lose the capacity to satisfactorily parent the children. It is likely the mother and the children will maintain daily communication by both Skype and telephone with members of the maternal family and they will likely enjoy reciprocal journeys between Australia and Country E to visit one another.
143. The mother will probably find it more costly to live in Australia than Country E, but neither she nor the children will be impoverished.
144. Relocation disputes do not admit of perfect solutions. Findings about the short, mid, and long term interests of children permissibly fall within a wide range of discretion (see U v U at 262-263). In this case, evaluation of the countervailing considerations leads to the conclusion that the children should live with the mother in Australia. Leaving to one side the subjective wishes of the parties, that conclusion is consistent with the opinion of the Family Consultant and the submission of the Independent Children’s Lawyer.
Circumstances following the first hearing:
The Mother
Remarriage:
Notwithstanding the existing orders preventing the mother’s relocation with the children to Country E, the mother nevertheless in 2013 married Mr F, now aged 31, in Country E. He was her fiancé at the time of the first trial. The mother and her new husband lived together in Sydney with the children from December 2013 to December 2014 whilst her new husband was here on a 12 month working visa. The mother says that her new husband was engaged in the lives of the children as would be expected as he was living in the same residence.
The mother’s new husband has business interests and private property in Country E as a consequence of which he is unable to relocate to live in Australia permanently.
The pregnancy:
In July 2014 the mother fell pregnant and the birth of the child was expected in late 2015.
The mother says the children were excited about the impending birth of the new baby. Regrettably the mother was admitted to hospital on 29 December 2014 and the child was delivered prematurely and died on that day. The mother was released from hospital the following day.
The mother contends that the sudden loss of the baby was a significant change for their household and no doubt she, her husband and the children experienced significant sadness at the unexpected loss.
The mother’s emotional state:
The mother took extended leave from her employment and returned to work in May 2015, having previously engaged with Ms G psychologist from February 2015 for issues relating to her unfortunate loss.
At the time of the judgment in November 2012 the mother was the subject of a GP mental health referral to Ms H, psychologist. A report from Ms H dated 31 January 2013 (Exh G) contains the following note:
[The mother] has sustained a long period of stress/anxiety/depressive features over a drawn-out court case for custody/relocation that was not found in her favour. She is now confronted with staying in Australia [without] social support for 2 years before another application can be made.
Just a few weeks after the delivery of judgment the mother had well contemplated a future further application by her over the same issue.
Documents from the mother’s current treating psychologist Ms G are in evidence (Exh E). In a report dated 18 August 2015 Ms G notes that the mother had recently travelled to Country E with her daughters from 1 July 2015 to 19 July 2015. Ms G expresses the opinion that it is imperative that the mother continue to receive regular psychological treatment to assist her to modulate her psychological distress.
The mother’s continuing grief was noted by her doctor in May 2015 (Exh D), when the doctor recorded that the mother described that she was experiencing “nightmares, flash backs”. The doctor further noted that “she has been having counselling and her mood and symptoms are improved 75%”.
It appears that the mother has income protection insurance with St George/Westpac for the period she was off work. A medical report from Dr I dated 14 April 2015 was in evidence (Exh D). It is to be inferred that the medical examination by Dr I was for the purposes of the mother’s income protection payments continuing. Surprisingly Dr I notes the mother “did not volunteer symptoms of PTSD such as flashbacks or nightmares”. This is somewhat incongruous to the representation made to her doctor a few weeks later. The general tenor of the report from Dr I was that the mother was unreliable in relation to her history with “evidence of feigning and/or exaggeration on psychometric testing”. As at 29 October 2015 the mother continues to receive payments from her insurer on a without admission basis (Exh F).
The mother asserts recent traumatic events have reinforced her feelings of anxiety and powerlessness providing to her a strong desire to move on with her life which she does not see possible in Australia. A not so dissimilar argument was raised before Austin J.
The mother says that should she be able to relocate to Country E she would not have concerns about employment and providing accommodation for the children as she would live in her new husband’s home. She further asserts that she and the children would have the ability to spend time with her extended family.
The child B:
The mother otherwise complains that the child B is falling behind in class at school and the father had previously refused to provide his consent to the child having counselling or an educational assessment. The father’s resistance is evidence from notes relating to his attendance on Dr K in November 2014 (Exh D). The child has now been referred to the school counsellor for assessment and the May 2015 NAPLAN tests revealed only average results as did later testing in June 2015.
The child’s Semester 1 June 2015 school report was in evidence with the general comment concluding in the following terms:
[B] has made steady progress in all key learning areas and with a continued effort and increased confidence we are hopeful she will be able to achieve improved results. Well done [B].
The child’s school counsellor’s report dated 24 July 2015 was in evidence and contrary to the mother’s assertions in her sworn affidavit the following is noted in the report:
[The mother] recently expressed that she is happy with the way B has been progressing over the last few months. She further reported that [B] is bilingual and is able to speak, read and write in [Country E]. [The father] reports no current concerns with [B’s] learning at school. He has also observed a big improvement in [B’s] learning progress over the last few months.
Observations by the counsellor of the child during testing and also in classroom observation were most positive.
The father’s relocation:
The mother complains that that the father has now relocated about 50 km away from the children’s school and the children are struggling with the extra travel required to keep up with mid-week time with the father.
The Father
The father expresses no concerns in relation to the progress of either of the children at school. To him the children appear happy and well-adjusted, speaking to him often about their friends at school and church.
The father commenced a relationship with his now wife Ms J in early 2014 and they married in 2015 with the children being flower girls at the wedding. Ms J has two children who now form part of the father’s household and to his observation all of the children have a good relationship
The father moved to his present residence at Suburb Lin December 2014. He says that the children enjoy the mid-week trip from and back to school the next morning.
The father notes the mother’s trip to Country E with the children in July 2015.
The mother’s loss occurred whilst the children were with the father over the Christmas holidays in 2014/15. The father was advised by the mother by email of the tragedy on 10 January 2015 and was told that she would inform the children in person when they returned to her care. He says the children have not mentioned the loss and he has not observed any concerning behaviour in relation to the children since.
Should the mother pursue her application to relocate to Country E, the father’s position is that he would be happy to have the children reside with him.
The Family Consultant’s Memorandum
On 30 June 2015 the parties and the children attended on a family consultant for the purposes of the preparation of a Child Responsive Program Memorandum (Exh H).
The memorandum reports that the mother’s proposed relocation to Country E to live with her new husband would see her residing about 500 km from where her extended maternal family reside.
The mother informed the Family Consultant that if she were not permitted to relocate to Country E with the children she would relocate without them.
The Family Consultant reported:
[The mother] made a number of pointed comments about [the father’s] value in the children’s lives and how important it would be for her to ensure that the children continued to maintain their relationship with both him and the paternal family if she was to relocate their residence. The father stated that he held concerns that if the mother was permitted to relocate the children’s residence to [Country E] she would not facilitate the children’s relationship with him.
On interview with the child B the Family Consultant observed that the child gave the impression that she was somewhat aligned with her mother and had possibly been exposed to developmentally inappropriate information. Notwithstanding the child spoke positively and in detail about her schooling.
The child spoke positively about the idea of moving to Country E with a strong inference that the mother had painted to the child a very positive and glowing picture of life in that country. Yet the child expressed the view that if the Court did not permit her to go to Country E then her mother would remain in Australia.
Of particular note was the Consultant’s observation that the child spoke with animation about activities that she enjoyed doing with both parents.
The younger child C presented to the Family Consultant as somewhat guarded on interview and hesitant to be drawn on the topic of the proposed relocation to Country E. Of note the child spoke positively about her schooling and when asked about her family she named people from both sides of the family. The child spoke positively about both her mother and father and about her stepmother and siblings. It appears that the child refers to the mother’s new husband as “Uncle F”.
Whereas her older sister expressed some dissatisfaction with arrangements for mid-week time because of the travel, C said she was happy with the current spend time arrangements.
In evaluation the Family Consultant observed that the children were not of an age or stage of development whereby the Court could place weight on the views in regard to the relocation. The children appeared to have positive and establish relationships with the father with neither parent raising any risk of harm issues about the children’s time with the other. In conclusion the Family Consultant ventured that it did not appear to be in the children’s best interests in this time of uncertainty and family grieving to change their long-standing spend time arrangements unless it was assessed that they were significantly detrimental to the children.
Discussion
The children have experienced previously significant conflict between their parents in relation to the mother’s application to relocate. The children have been seen in the context of the previous proceedings, it is to be inferred, for the purposes of a preliminary Child Responsive Program report and thereafter for a much more comprehensive family report that was the subject of consideration by Austin J in his Reasons for Judgment.
The basis for the mother’s further application for relocation are mostly circumstances of her own making or normal exigencies of life subsequent to the previous final orders.
She for her own reasons elected to remarry in circumstances where she knew that there were orders in place that prevented her relocating to Country E with the subject children. Whether it was contemplated by her that she would be able to do so by reason of her remarriage is not clear. Whether it was contemplated by her that she would relocate without the children is also not clear although there is some suggestion to that effect through the Family Consultant. The children appear to be completely unaware of that prospect. The father is prepared for the children to live with him should the mother move.
The mother’s emotional circumstances have understandably been affected by the unexpected loss of her child in December 2014. However her own psychologist is of the view that ongoing engagement will help the mother deal with her emotional circumstances arising therefrom.
There is a significant inference that the mother has sought to manipulate circumstances following the unfortunate loss of her child to her benefit so as to seek to re-litigate the issue of relocation. Her veracity in terms of her presentation and symptoms is clouded by reason of the observations and report of Dr I, and the Family Consultant expresses concerns that at least the eldest child has been exposed to developmentally inappropriate information and has become aligned with the mother.
The mother’s alleged emotional fragility was considered in Austin J’s judgment (at [96]-[105]). Concerningly the mother’s psychologist at that time found the mother “emotionally manipulative” towards her (at [81]).
Importantly the children’s circumstances have not relevantly changed. Changes have happened as life moves on. That is to be expected.
The children maintain a good relationship with the mother and father and both are positive about each of their parents. The children’s progress at school is satisfactory, and in respect of the older child the subject of appropriate intervention. Indeed it is to be inferred that the children’s relationship with the father and his now further extended family has been of some benefit to them in strengthening the father/child relationships.
The children’s present circumstances are not indicative of any change to the present orders and there is little prospect of the present orders being varied in any significant way as a result of a new hearing. As has been said above, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
The potential detriment to the children caused by re-litigation must be considered. The children would be exposed once again to heightened conflict between their parents in the context of that litigation. The children would be required to attend again upon a family report writer for the purposes of a second family report.
There is also a strong inference that the mother’s conduct, such as is referred to above, will expose the children to the litigation and developmentally inappropriate information, a development that is of concern to the Family Consultant in the context of the preliminary report (Exh H).
In the circumstances discussed above, there is no circumstance that would justify the re-litigation of the issue of relocation such would not be in the best interests of the children.
The Independent Children’s Lawyer supported the dismissal of the mother’s application.
The mother’s application will be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 27 November 2015.
Associate:
Date: 27 November 2015
Key Legal Topics
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Family Law
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Civil Procedure
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