Noelle and Fournier
[2010] FamCA 336
•30 April 2010
FAMILY COURT OF AUSTRALIA
| NOELLE & FOURNIER | [2010] FamCA 336 |
| FAMILY LAW – CHILDREN – where final orders were made in 2007 – application by the wife seeking to in effect reverse the children’s living arrangements – the husband seeks the dismissal of the wife’s application pursuant to the rule in Rice and Asplund (1979) FLC 90-725 – where the Rice and Asplund argument was heard as a preliminary matter – whether there has been a sufficient change of circumstances since the final orders were made to justify the re-litigation of the issue of with whom the children should live – the wife’s Amended Initiating Application dismissed |
| Family Law Act 1975 (Cth) |
| B and J [2009] FamCAFC 103 Caracini and Paglietta [2009] FamCAFC 188 Marsden and Winch [2009] FamCAFC 152 Miller and Harrington (2008) FLC 93-383 Rice and Asplund (1979) FLC 90-725 SPS and PLS (2008) FLC 93-363 |
| APPLICANT: | Ms Noelle |
| RESPONDENT: | Mr Fournier |
| INDEPENDENT CHILDREN’S LAWYER: | Rebecca Reed |
| FILE NUMBER: | MLC | 11383 | of | 2007 |
| DATE DELIVERED: | 30 April 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 May 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Kovacs |
| SOLICITOR FOR THE APPLICANT: | Ruth Carter & Associates |
| COUNSEL FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Boehm |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
That the Amended Initiating Application filed by the wife on 14 March 2008 in so far as it seeks Final Orders, and the Response filed by the husband on 9 September 2008 be dismissed and removed from the active pending cases list.
That the said Amended Initiating Application in so far as it seeks Interim Orders be adjourned to 9:30am on 26 May 2010.
That the Amended Application in a Case filed by the husband on 27 February 2009 be adjourned to 9:30am on 26 May 2010.
IT IS NOTED that publication of this judgment under the pseudonym Noelle & Fournier is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: MLC 11383 of 2007
| MS NOELLE |
Applicant
And
| MR FOURNIER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a case where despite Final Orders being made by Bennett J on 23 August 2007 in relation to the living arrangements of the two children of the parties, the wife seeks to pursue an application to in effect reverse those living arrangements and have the children live with her. The husband seeks a dismissal of that application on the basis that there is no change of circumstance that would justify the re-litigation of the issue of where the children should live as determined by those earlier orders. This is colloquially known as a Rice and Asplund argument.
This aspect of the dispute between the parties became apparent in the course of a hearing before Burr J on 15 October 2008. His Honour then specifically ordered that “the proceedings be referred to the short trial list for determination of the Rice and Asplund argument on a date and time to be fixed by the court”. Ultimately the hearing was listing before Dawe J on 21 April 2009. However, on the husband’s application an adjournment was granted and the hearing was relisted on 25 May 2009.
Thus, the first point to note is that this matter was listed before the Court as a preliminary hearing to hear and determine the Rice and Asplund argument. Neither party, including the Independent Children’s Lawyer sought that that issue be heard instead as part of a full hearing on the children’s issues.
Each party relied on a number of affidavits and the only oral evidence that was taken was that of the Family Consultant, Ms DN, who had prepared two Family Reports in this case. She was cross examined by the wife’s counsel but there was no cross examination from either the husband who appeared in person or from counsel for the Independent Children’s Lawyer. Thus, primarily the hearing was a hearing on the papers with submissions made by each counsel and by the husband. There was no suggestion from either party or the Independent Children’s Lawyer that the hearing should be conducted in any other way.
The formal applications before the Court are the wife’s Amended Initiating Application filed on 14 March 2008 in so far as it seeks Final Orders and the husband’s Response filed on 9 September 2008. However, in the wife’s case outline the wife set out a significantly expanded set of final orders that she sought, but those orders were all consequent upon and subject to the primary order sought by her, namely, that the children live with her. The husband in his outline sought one additional order to the orders sought in his Response.
The factual and procedural background
In this case I consider it important to set out in some detail the procedural history of the case since the Final Orders were made on 23 August 2007. The earlier procedural history and the relevant historical facts can be recorded with rather less detail. I say this because it is far more important to understand and appreciate what has happened in this case since the Final Orders were made than to dwell on what occurred prior to those Final Orders being made. In any event I set out the relevant factual and procedural background hereafter.
The husband was born in 1965 and is now aged 44 years.
The wife was born in 1975 and is now aged 34 years.
Both parties were born in Africa where they married in 1995.
The parties’ first child S was born in Africa in April 1996 and is now aged 14 years.
The parties’ second child T was born in Africa in June 1999 and is now aged 10 years.
On 6 December 2002 the parties and their children migrated to Australia. Both the wife and the husband are now Australian citizens.
The parties separated in 2003.
On 30 October 2003 the husband commenced proceedings in the Family Court seeking parenting orders. Pursuant to various interim orders made, the children were to live with the wife and spend time with the husband.
On 8 April 2004 the wife was found guilty of contravening the order for contact by preventing contact. Compensatory contact was ordered and a further order for ongoing contact was made.
On 9 June 2004 the wife was again found guilty of contravening the orders for contact by preventing contact. Compensatory contact was ordered and the wife was required to enter into a Bond in the sum of $500 for a period of 12 months subject to the condition that she comply with the orders for contact.
Between January and July 2005 the husband lived in regional Victoria for the purposes of his employment.
On 22 June 2005 Ms B, Family Consultant, provided a Family Report.
In December 2005 the husband married his current wife Mrs Fournier. Mrs Fournier moved to Australia to reside permanently with the husband in March 2006.
In May 2006 the wife met her current partner Dr W.
On 26 September 2006 an Updated Family Report was prepared by Ms B.
In October 2006 the husband and his current wife relocated to South Australia.
A further Family Report was provided by Ms B on 10 July 2007.
On 13 August 2007 the matter came before Bennett J for final hearing. Both the husband and the wife were unrepresented at the hearing, but counsel appeared for the Independent Children’s Lawyer. On the first day of the hearing the wife applied for an adjournment. Bennett J refused the wife’s application, delivering ex tempore reasons. The evidence on which the parties sought to rely was identified on the first day.
When the hearing resumed on 14 August 2007 the wife did not appear, nor did she attend at any time during the remainder of the hearing before Bennett J on 16 August 2007, and the matter proceeded undefended.
On 23 August 2007 Bennett J delivered reasons for judgment and made the following final orders:
“(1) All previous orders be discharged.
(2) The children of the relationship [S] born […] April 1996 and [T] born […] June 1999 live with the father and for that purpose the father forthwith be at liberty to collect the children from school by arrangement with the proper officer of the school or from such other place as the children may be located.
(3) The father have sole parental responsibility for matters relating to the education and training of the children.
(4) The children communicate and spend time with the mother as follows:-
(i)For the first 4 weeks of the 2007/2008 Christmas school holidays, including Christmas day commencing on the first Saturday of the Christmas school holidays and each alternate year thereafter and for the last 4 weeks of the 2008/2009 Christmas school holidays commencing at 12 noon on 28 December and alternate each year thereafter.
(ii)For two weeks during the April-March school holidays, for the first week of the June-July school holidays, and two weeks during the September school holidays, in each year commencing at 12.00 noon on the first Saturday of each school term holiday.
(iii)In Melbourne, upon the provision of two months written notice for each school term, for not more than one weekend in each school term, from 6pm Friday until 2pm Sunday or 2.00 p.m. on the day prior to the recommencement of school if the Monday or Tuesday immediately after the weekend is a non-school day;
(iv)Upon the provision of four weeks’ written notice for each school term, for not more than two consecutive weekends in each school term from 4pm Friday until 4pm Sunday, in Adelaide, with changeover to take place at […], Adelaide.
(v)By telephone when the father do all acts and things necessary for the children to place a telephone call to the mother:-
(a)between the hours of 7.00pm and 8.00pm each Monday and Thursday when the children are not spending time with the mother pursuant to these orders or otherwise;
(b)between 7.00 a.m. and 8.00 a.m. on the birthdays of the children, the mother, Mother’s Day and Christmas Day in the event that the mother is not spending time with the children on those days pursuant to these orders or otherwise;
(c)otherwise at the reasonable request of the children;
(d)as may otherwise be agreed between the parties in writing from time to time.
(5) The mother be solely responsible for the costs of travel associated with spending time with the children pursuant to paragraphs 4(iii) and 4(iv) herein.
(6) The mother be solely responsible for the costs associated with the children’s travel from Adelaide to Melbourne at the commencement of her time with the children pursuant to paragraphs 4(i) and 4(ii) herein and if such travel is to be by airplane, the mother provide to the father the airplane tickets booked for the children at least 28 days’ prior to such travel.
(7) The father be solely responsible for the costs associated with the children’s travel from Melbourne to Adelaide at the conclusion of the mother’s time with the children pursuant to paragraphs 4(i) and 4(ii) herein and if such travel is to be by airplane, the father provide to the mother the airplane tickets booked for the children at least 21 days’ prior to such travel.
(8) That if a parent fails or neglects to deliver the children (or either of them) to the airport in sufficient time for the children to meet (check in, pass through security and embark) the specified flight, then that parent be and is hereby solely responsible for and, if necessary will indemnify the other, in relation to the airfare and associated costs of the children being transported on the next available flight to Melbourne or Adelaide (as the case may be) regardless of the fact that the forfeited airfare may have been a discounted airfare with conditions attached and the fare for the next available flight is a full economy or business class airfare.
(9) Unless otherwise provided for in these orders, changeovers for the purposes of the mother spending time with the children pursuant to paragraph 4 herein take place as follows:
(a)the mother collect the children at the commencement from Melbourne airport if the children are travelling by airplane, or otherwise from […] in Adelaide.
(b)the father collect the children at the conclusion from Adelaide airport if the children are travelling by airplane, or otherwise from Shell Service Station at […].
(10) That times on which time spent is expressed to commence or to conclude or communication is to take place are, for the purpose of this Order, local times for the state in which the children are located. The times on which to be spent is expressed to commence and conclude and where children are being transported by commercial airline is, for the purpose of this Order the time on which the children’s flight is scheduled to depart and if no commercial flight leaves at that time is to be varied to the departure time of the flight closest to the time provided for in paragraph 4 of this Order.
(11) Each of the father and mother provide to the other 21 days’ prior written notice of any proposed change of address of their residence.
(12) Each of the father and mother forthwith advise the other, in writing, of any change in their contact telephone numbers.
(13) The father do all acts and things and sign all documents necessary to ensure the mother is provided with all information regarding the children’s health and education, including school reports, school photos and any medical reports and irrevocably authorise and direct the proper officer of the school(s) at which either child attends to send to the mother (at her expense, if any) a copy of school reports, AIM test results, newsletters, order forms for school photographs and other information usually disseminated to parents.
(14) The father promptly upon receipt by him of school photographs of the children send to the mother by pre-paid post not less than one such photograph of each child for retention by the mother with the cost of the photograph and the postage to be at the expense of the father. It will be sufficient compliance by the father with his obligations herein if he causes each child to send at least one photograph of herself to the mother by pre-paid post.
(15) The mother, her servants and agents, be and are hereby restrained from discussing the allegations or assessments in these proceedings, the father or his present mother, to or in the presence or hearing of the children.
(16) The mother, her servants and agents be and are hereby restrained from contacting the children on their mobile telephones on occasions other than Monday and Thursday evenings between 7.00pm and 8.00pm and such other times as may be agreed between the parties and evidenced in writing and the father may, in his discretion, limit access by the children, or either of them, to their mobile telephones at any other time,.
(17) Each of the father and mother, their servants and agents be and are hereby restrained from removing the children from the Commonwealth of Australia and it is requested that the Marshall of the Family Court and all officers of the Australian Federal Police give effect to this Order.
(18) That for the purpose of enabling compliance with the Orders made in the Family Court of Australia this day whereby the children [S] born […] April 1996 and [T] born […] June 1999 live with the father, a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(17.1)[sic] to find and recover the children [S] born […] April 1996 and [T] born […] June 1999 and to deliver the child to the father at such place as the father and the person effecting such recovery agree to be appropriate; and
(17.2)[sic] to stop and search any, vehicle, vessel or aircraft and to enter and search any premises or places in which there is at any time reasonable cause to believe that the child may be found.
(19) That paragraph 18 hereof be stayed until 12 noon today. In the event that the independent children’s lawyer notifies the proper officer of the Australian Federal Police that the children have been collected by the father and the recovery order is not required to be executed, the recovery order be and is hereby discharged.
(20) The father serve a copy of this Order upon the Australian Federal Police as soon as practicable.
(21) That until further order each parent be and is hereby restrained from causing, permitting or suffering either child to be known by any family name other than “[Fournier]”.
(22) That until further order the mother by herself her servants or agents be and is hereby restrained from attending at, remaining in or being within 100 metres of [D] School until after the father has collected the children.
(23) That the independent children’s lawyer facilitate delivery of any clothes or personal possessions of the children from the mother to the father provided that nothing in this Order compels the mother to give the children any belongings or clothes nor for the independent children’s lawyer to remain appointed in these proceedings if no appropriate agreement can be reached.
(24) That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant to supervise compliance by the parties with the parenting order made this day (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of 2 years and to be reportable, to give either party such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, these parenting orders.
(25) The order made 8 April 2004 appointing the Independent Children’s Lawyer be discharged subject to the following:-
(a)the independent children’s lawyer explaining to the children in words likely to be understood by them the outcome of these proceedings, such conference to be convened in the presence, and with the assistance of, Ms [B], family consultant;
(b)advising the proper officer of [D] School of the outcome of these proceedings providing him/her with a copy of this order;
(c)compliance with paragraph 23 of this Order.
(26) That liberty be reserved to all parties to make application on short notice in relation to implementation with paragraph 2 of this Order.”
On 24 August 2007 the children were handed over to the husband in Melbourne and the husband and his current wife subsequently returned with the children to reside in Adelaide.
On 24 August 2007 the wife filed an Application in a Case seeking a stay of the orders of 23 August 2007 pending an appeal.
On 28 August 2007 the wife filed a Notice of Appeal against the parenting orders made on 23 August 2007.
On 5 September 2007 Bennett J heard the wife’s Application in a Case seeking a stay and reserved judgment. At the hearing, the wife amended her application such as to seek orders that, pending determination of her appeal, the children live with her and spend time with the husband in accordance with the regime that was to apply to the wife’s time pursuant to the orders of 23 August 2007.
On 10 September 2007 Bennett J delivered her reasons for judgment on the issue of the stay and dismissed the wife’s application. The wife’s appeal was subsequently deemed abandoned by the Appeals Registrar.
On 29 September 2007 the children travelled to Melbourne for the purposes of spending time during the school holidays with the wife pursuant to the orders of 23 August 2007. The children were not returned to Adelaide by the wife as scheduled on 13 October 2007.
On 16 October 2007 the wife filed an Initiating Application in the Federal Magistrates Court seeking, inter alia, that all previous parenting orders be discharged, that the children live with her, that the husband’s time with the children be “reserved” and orders with respect to obtaining passports for the two children. Although not outlined in her Initiating Application, the wife sought at the hearing on 17 and 18 October 2007 to be permitted to travel to Africa with the children in October/November 2007. The wife did not name the husband as the father of the child T in this Application, but instead recorded the name of the child’s father as “U…”. The wife alleged in the Application that the husband is not T’s biological father.
On 16 October 2007 the husband filed an Application in a Case seeking a recovery order for the return of the children and the suspension of orders 4 to 10 inclusive made by Bennett J on 23 August 2007 which provided for the children to spend time with the wife.
On 17 October 2007 the matter was transferred to the Family Court and came before Bennett J for hearing on 17 and 18 October 2007. On 17 October 2007 her Honour made an order for a Family Consultant to interview the children and make necessary enquiries to ascertain their emotional state in the context of the husband’s application for a recovery order and the wife’s Initiating Application for a change in the Final Orders.
After interviewing the children, Ms B gave evidence before Bennett J on 17 October 2007 and was cross examined by the wife.
The hearing continued before Bennett J on 18 October 2007, when the parties made submissions and the Family Consultant was recalled to give further evidence and was cross examined again by the wife and counsel for the husband. At the conclusion of the hearing Bennett J made, inter alia, the following orders:
“…
(3) That the application of the mother for passports to issue for the children [S] born […] April 1996 and [T] born 23 June 1999 to enable them to travel to [Africa] in October / November 2007 be dismissed.
(4) That the father have leave to make an oral application to restrain the mother from attending at or within 200 metres of the children’s school and from corresponding with the children at school.
(5) That until further order the mother be and is hereby restrained from attending at or within 200 metres of the children’s school in Adelaide being […] Primary School and from causing, permitting or suffering communications from her or on her behalf to be sent to the children at school.
(6) That until further order the operation of paragraphs 4(i), (ii) and (iv) of the Order made by me on 23 August 2007 be suspended. That for the avoidance of doubt the suspension of the orders that the mother spend time with the children is intended to operate only until the matter can be determined by a court of competent jurisdiction in Adelaide on an interim basis.
(7) That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Adelaide now nominate a family consultant to supervise compliance by the parties with the parenting order made on 23 August 2007 (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of 2 years and to be reportable. However no report be prepared unless a further application in relation to the children is filed whilst this order remains in force, the court orders that a report be prepared or the family consultant of his / her own volition thinks a report should be prepared.
(8) That the independent children’s lawyer send a photocopy sealed copy of these Orders to the mother by pre paid post under cover of a letter advising her that the proceedings have been transferred to Adelaide and she should hear in due course the date for hearing of the matter in Adelaide, noting that this Order is only a further measure by which the determination today be drawn to the attention of the mother as a sealed copy of the orders will be sent out to her at her address for service.
(9) That the independent children’s lawyer provide the proper officer of [the children’s] Primary School with a copy of this Order drawing his/her attention to the provisions of paragraph 5 hereof.
(10) That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children [S] born […] April 1996 and [T] born […] June 1999 be independently represented by a lawyer AND IT IS REQUESTED that the Legal Aid Commission of South Australia arrange such representation.
…
(13) That the appointment of the independent children’s lawyer in Victoria be discharged with effect from 30 November 2007.
(14) That the balance of the extant proceedings be transferred to the Adelaide Registry of this Court and it is requested that the matter be listed before the Judicial Registrar as an interim matter requiring determination approximately 6 to 8 weeks hence.”
On 4 February 2008 the matter came before Forbes JR in the Adelaide Registry. His Honour made orders by consent for the filing of an Amended application and response and supporting affidavits. The matter was adjourned for further consideration to 20 March 2008.
On 14 March 2008 the wife filed an Amended Initiating Application seeking final orders that the children live with her, that she have sole parental responsibility for the children and that the children spend such time with their father as may be determined by the Court. The wife also sought interim orders that the suspension of paragraphs 4(i), (ii) and (iv) of the orders of Bennett J made on 23 August 2007, concerning the wife’s time with the children, be lifted and for a Family Consultant to ascertain the emotional state of the children in the “context of the reduced interaction of the children with the mother”. Finally, the wife sought an order that the notice required by paragraph 4(iii) be waived and the children spend time with her in Melbourne from 6:00pm on Friday 28 March 2008 until 2:00pm on Sunday 30 March 2008. In her Amended Initiating Application the wife again records a Mr U… as T’s father. In her affidavit filed the same date the wife disputes that the husband is the child’s father. [See affidavit filed 14 March 2008 at [19]]
On 20 March 2008 Dawe J granted the husband’s application for an adjournment of the interim proceedings on the basis that the wife had not complied with previous orders. The matter was adjourned to 8 May 2008.
On 16 April 2008 the husband filed an Application in a Case seeking orders that the children continue to live with him pursuant to the orders made 23 August 2007 and for him to continue to have sole parental responsibility for the children’s “education and training”. The husband also sought that the orders for the wife to communicate with the children made by Bennett J on 23 August 2007 be “shortened” to twice a fortnight and for supervised contact to be ordered by the court to take place monthly at a contact centre.
On 8 May 2008 Burr J made orders for a Family Consultant to prepare a report with specific attention to the following issues:
(a) whether it is appropriate for the mother to resume her time to be spent with the said children;
(b) if so, under what circumstances should she resume her time to be spent with the said children;
(c) whether or not supervision of the mother’s time is indicated;
(d) the mother’s view of her capacity to comply with Orders of this Court in the future; and
(e) any other matters deemed appropriate for investigation by the Family Consultant
His Honour also made orders for the maternal grandfather to spend supervised time with the children (of up to one hour’s duration) at the Family Court Registry. His Honour suspended, during the period of the adjournment, “paragraphs 4(iii) and (iv) of the orders made on 18 October 2007.” His Honour was clearly referring to the orders made on 23 August 2007, however.
On 25 June 2008 Ms DN, Family Consultant, provided a Family Report in this matter.
The matter came before me on 4 July 2008. On this occasion I made orders for the children to spend time with the wife from Saturday 5 July 2008 until 9:00am on Monday 14 July 2008, on the basis that the wife was to arrange for the children to fly to Melbourne at her expense and the husband was to collect the children from the wife at 9:00am on the Monday. I also made orders for Ms DN to interview the children following their return to Adelaide and to provide a brief report on such matters as were relevant to the proceedings in respect of the children’s care, welfare and development. Further consideration was adjourned to 21 August 2008. The children spent time with the wife pursuant to these orders.
On 11 August 2008 Ms DN provided her further report.
On 21 August 2008 I made orders by consent for the children to spend time with the wife from 28 August 2008 until 1 September 2008, with the exact times to be notified by the husband no later than 48 hours prior, and with the wife to be responsible for the costs of travel. It was also ordered by consent that the children communicate with the wife by telephone each Thursday between the hours of 7:00pm and 8:00pm. Further orders were made, not by consent, for the children to spend time with the wife in Melbourne from 29 September 2008 until 6 October 2008, with the times for handover and the mode of travel and arrangements to be as agreed between the parties. Further consideration of any applications for interim orders was adjourned to 15 October 2008. The children also spent time with the wife pursuant to these orders.
On 9 September 2008 the husband filed a Response to an Initiating Application seeking final orders that the children continue to live with him pursuant to the orders of 23 August 2007, that he continue to have sole parental responsibility for the children’s “education and training”, that the wife’s Application for Final Orders be dismissed and that the Court make such “other orders as it thinks fit for the best interest [sic] of the children.”
On 9 September 2008 the husband also filed an Application in a Case again seeking orders that the children continue to live with him and that he have sole parental responsibility for their education and training. The husband sought in addition orders that the children spend half of all school holidays with the wife in Melbourne and communicate with the wife by telephone each Thursday between 7:00pm and 8:00pm. The husband sought that all other provisions of the orders of Bennett J made on 23 August 2007 be maintained.
On 15 October 2008 when the matter came before Burr J, the husband indicated that he wished the court to determine whether the wife’s application should be allowed to proceed to trial on the basis of the rule in Rice and Asplund. Burr J referred the proceedings to the short trial list for determination of the Rice and Asplund argument. It was also ordered that, with the assistance of the Independent Children’s Lawyer, the parties were to negotiate between themselves the issue of the time to be spent by the wife with the children during the 2008/2009 Christmas school holiday period prior to any institution of proceedings to resolve the issue.
On 17 November 2008 the wife filed an Application in a Case seeking orders that she be permitted to attend at the children’s school to attend S’s graduation in December 2008. The wife also sought an order that she be permitted to spend time with the children following the graduation and to then travel with the children to Melbourne for them to spend the first half of the school holidays with her there, or, alternatively that the children spend two weeks with her in Melbourne, return to Adelaide and then return to Melbourne to spend the last two weeks of the Christmas school holidays with the wife. The wife also sought that the children spend such other time with her as may be agreed and an order authorising her to make arrangements for dental treatment required by T.
On 25 November 2008 the wife filed an Application in a Case seeking that her application of 17 November 2008 be heard as a matter of urgency and that paragraphs 5 and 9 of the orders of Bennett J made on 18 October 2007, which restrained the wife from attending the children’s school, be discharged.
On 8 December 2008 Burr J made further interim orders and delivered ex tempore reasons for judgment. His Honour made orders by consent that the wife spend time with the children from mid-morning on Monday 15 December 2008 until mid-morning on Monday 5 January 2009 with the wife to pay for travel between Adelaide and Melbourne at the commencement of the time and the husband to pay for the travel at the conclusion of the time. Further orders were made restraining the parties from discussing the proceedings with the children or denigrating the other party to the children or within their hearing or allowing any other person to do so. The wife was also restrained from denigrating the husband’s current wife to the children. The wife’s Application in a Case filed on 25 November 2008 was refused and dismissed and removed from the pending cases list. The wife’s Application in a Case filed on 17 November 2008 was otherwise dismissed and removed from the pending cases list.
On 27 February 2009 the husband filed an Amended Application in a Case, apparently seeking to amend his Response filed on 9 September 2008, seeking, in addition to orders that the children continue living with the husband, that he have sole parenting responsibility for their education and training and that the wife’s Application for Final Orders be dismissed, the following orders:
“(2) That the mother be recommended by the court to attend a parenting program before further long-term contact with the children.
(3) That the mother have contact with the children in Adelaide in a manner to be determined by the court during the time she is pursuing the parenting program.
(4) That the mother continues to have contact with the children as per the orders of the Honourable Bennett J after successful completion of the parenting program.”
On 3 March 2009 Burr J made further case management orders and referred the matter to the short trial list before Dawe J on 21 April 2009 for hearing and determination of the Rice and Asplund argument.
On 15 April 2009 Burr J held a compliance hearing. His Honour noted on this occasion that the wife had made an oral application, without notice, to spend time with the children during the April 2009 school holidays. His Honour made orders for the wife to file and serve an application detailing the dates and times she wished to spend with the children during the April school holidays and listed such application before Dawe J on 21 April 2009.
On 15 April 2009 the wife filed an Application in a Case seeking to spend time with the children from 5:00pm on 21 April 2009 until 6:00pm on Sunday 26 April 2009, with the wife to pay for the flights between Adelaide and Melbourne at the commencement and the husband to pay for the flights from Melbourne to Adelaide at the conclusion of the time.
On 21 April 2009 Dawe J granted the husband’s application for an adjournment of the consideration of the Rice and Asplund argument, adjourning further consideration of the issue to 25 May 2009. Her Honour also made orders in terms of the wife’s application, namely that the wife spend time with the children during the April school holidays from 5:00pm on 21 April 2009 and returning from Melbourne on a flight at 7:05pm on 25 April 2009.
On 22 May 2009 I heard argument regarding the Rice and Asplund issue and reserved judgment. The husband was unrepresented at the hearing. Counsel appeared for the wife and the Independent Children’s Lawyer.
On 1 June 2009 the wife filed an Application in a Case, seeking that the application be heard as a matter of urgency, and seeking Interim Orders, inter alia, that the wife spend time with the children from 5:00pm Friday 5 June 2009 until 7:00pm on Monday 8 June 2009 and for the reinstatement, with amendments, of the orders suspended by Bennett J on 18 October 2007 with respect to arrangements for the Christmas and mid year school holidays. The wife also sought that paragraph 8 of the orders made by Burr J on 8 May 2008, suspending paragraphs 4(iii) and 4(iv) of the orders made on 23 August 2007, be discharged and the wife be permitted to spend time with the children in Melbourne upon the provision of three weeks written notice for not more than two weekends in each school term. In her affidavit filed in support of her application the wife indicated that she was pregnant and engaged to be married to her partner Dr W.
On 23 June 2009 Burr J made orders by consent that paragraph 4(iii) of the order of Bennett J made on 23 August 2007 be suspended until further order and that the children spend time with the wife in Melbourne from 5 July 2009 until 13 July 2009. The wife’s application filed on 1 June 2009 was dismissed.
On 18 August 2009 orders were made by consent by a Registrar with respect to the time the children were to spend with the wife during the September/October school holidays.
The evidence
The wife presented a case outline document in which she identified the documents on which she relied, and the husband did likewise.
The wife relied on the following:
Transcript of evidence given by Ms B on 17 October 2007.
Mother’s affidavit filed 14 March 2008.
Father’s affidavit filed 16 April 2008.
Mother’s affidavit filed 8 May 2008.
Family Report dated 25 June 2008.
Family Report dated 11 August 2008.
Mother’s affidavit filed 17 November 2008.
Mother’s affidavit filed 4 March 2009.
Affidavit filed by Dr W on 4 March 2009.
The husband relied on the following:
Family Report dated 25 June 2008
Family Report dated 11 August 2008
The judgment of the Honourable Justice Bennett on 23 August 2007…
The judgment of the Honourable Justice Bennett on 10 September 2007…
Transcript of evidence given by Ms B (Specialist Family Consultant) on 17 October 2007…
Transcript of evidence (pages 1-6) given by the mother on 18 October 2007…
Order of the Honourable Justice Bennett made 18 October 2007…
Father’s affidavits sworn and filed 16 April 2008
Father’s affidavit sworn and filed 9 September 2008
Father’s affidavit sworn and filed 27 February 2009
Father’s affidavit sworn 6 April 2009
Father’s Response… filed 9 September 2009
Father’s Amended Application in a Case filed 27 February 2009
The issues in dispute
The issue for determination is whether there has been a sufficient change of circumstances since the Final Orders made on 23 August 2007, to justify the re-litigation of the issue of with whom the children should live.
The applicable principles
In Rice and Asplund (1979) FLC 90-725, Evatt CJ with whom the other members of the Full Court agreed, stated that the Court “… 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.” Her Honour indicated that the Court must be satisfied that “… there is some changed circumstance which would 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.” Her Honour continued at 78,905:
“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.”
The “rule” in Rice and Asplund has been considered in a number of subsequent decisions with the most notable and most recent of those being SPS and PLS (2008) FLC 93-363, Miller and Harrington (2008) FLC 93-383, B and J [2009] FamCAFC 103, Marsden and Winch [2009] FamCAFC 152 and Caracini and Paglietta [2009] FamCAFC 188. In Marsden and Winch (supra) the Full Court said this:
“48. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49. However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the ‘rule’ in Rice and Asplund and as Warnick J [in SPS and PLS] says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
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.” (Footnotes omitted)
It is also important to recognise that at whatever the stage of proceedings the “rule” is applied, the best interests of the children remain the paramount consideration.
Discussion
In the wife’s written outline of case she set out the “changes in circumstances” alleged by her. It is appropriate to set out those alleged changes in full, as follows:
“D. CHANGE IN CIRCUMSTANCES ALLEGED BY THE MOTHER
1.The father has failed to exercise the responsibilities of parenthood appropriately:-
(a)the mother’s initial Affidavit filed 16 October 2007 records this in paragraphs 1 and 7, together with Annexure ‘A’;
(b)these portions of the Affidavit disclose that:-
(i) the father walked in on [S] (then aged 11.5 years) whilst she was changing, commented as to the child’s need for bras, and pulled her breast;
(ii) the father has smacked the child;
(iii) the father’s wife called the mother a ‘prostitute’ and then punished [S] by shouting at her and hitting her when she disagreed;
(iv) the father called [T] a ‘shit-stirrer’;
(v) the father’s wife slaps [T] when she moves after being asked to stay still;
(vi) the father failed to care properly for [T’s] skin, such that it became cracked;
(c)the paragraphs relied upon from the transcript are as follows:-
(i) page 7, between lines 10 and 33 (as to [T’s] skin and the condition of the children’s hair;
(ii) page 8, between lines 5 and 18 (as to the issue regarding [S’s] breasts);
(iii) page 8, lines 25 to 28 (as to the children feeling scared of the father’s wife);
(iv) page 8, lines 28 to 31 and page 9, lines 1 to 7 (as to the comment made by the father’s wife);
(v) page 9, lines 23 to 25 (as to the ‘shit stirrer’ comment);
(vi) page 12, lines 9 to 22 (as to the issue with [S’s] breasts);
(vii) page 12, lines 35 to 39 (as to the father’s wife smacking [S]);
(viii) page 25, lines 5 to 19 (as to the father’s wife smacking [S]);
(ix) pages 25 to 26, lines 34 onwards to the end of the third line on page 26 (as to the children’s fear of the father’s wife, the ‘shit stirrer’ comment and smacking);
(d)the father has failed to provide appropriate dental treatment for [T]. This is set out in the mother’s Affidavit filed 17 November 2008 at paragraphs 8 and 9;
(e)mother’s Affidavit filed 4 March 2009 at paragraph 8 set out difficulties with the children’s hairdressing;
(f)Affidavit of [Dr W] filed 4 March 2009 at paragraph 15 sets out complaints made by the children regarding their care arrangements, and at paragraph 18, the distress of the children in being required to return to Adelaide.
2.The father has failed to comply with paragraph 4(v) of the Order made by Bennett J on 23 August 2007 as to telephone communication with the children:-
(a)the father’s Affidavit filed 16 April 2008, at paragraphs 5 to 10 inclusive address this;
(b)these paragraphs:-
(i) set out specific dates when telephone calls did not occur;
(ii) set out dates when telephone calls occurred later than the times ordered;
(iii) set out occasions when telephone calls were terminated after brief conversations;
(c)the father’s Affidavit filed 16 April 2008, at paragraph 10, confirms the father’s decision to reduce the children’s telephone communication with the mother, unilaterally;
(d)the mother’s Affidavit filed 8 May 2008, paragraphs 11 and 12, detail ongoing failure of the father to comply with the order regarding telephone communication by the father;
(e)the family report dated 11 August 2008 at paragraph 19 refers to the father’s ongoing failure to permit telephone communication;
(f)family report dated 25 June 2008, page 4, confirms the father’s reduction of the children’s telephone communication with the mother;
(g)the mother’s Affidavit filed 4 March 2009 at paragraph 4 sets this out;
(h)it is submitted that the father’s failure to comply with the Order regarding telephone communication, including his indication that he has unilaterally decided to reduce the quantity of telephone communication, reflects his failure to support the children’s relationship with their mother. This was contrary to the expectation of Bennett J in making the order on 23 August 2007.
3.The father has required the children to address his wife as ‘mummy’:-
(a)this is addressed in paragraph 14 of the mother’s Affidavit filed 14 March 2008;
(b)the mother’s Affidavit filed 8 May 2008, at paragraph 17 indicates there is no cultural basis to justify the father requiring the children to call his wife ‘mummy’;
(c)the child, [S], is uncomfortable with the requirement to call the father’s wife ‘mummy’ (Family Report dated 11 August 2008, page 2, paragraph 8);
(d)it is submitted that this also indicates the father’s failure to promote the children’s relationship with their mother.
4.The mother has developed an understanding of the need to promote the children’s relationship with their father:-
(a)this is set out in paragraph 18 of the mother’s Affidavit filed 14 March 2008;
(b)this is set out in the Family Report dated 11 August 2008 at paragraph 18;
(c)it is submitted that this is a material change in circumstances, because the order regarding the children’s care arrangements was made on 23 August 2007 substantially because of a finding that the mother would not promote the children’s relationship with the father.
5.The children continue to wish to live with the mother:-
(a)mother’s Affidavit filed 8 May 2008, at paragraph 24 sets this out;
(b)the family report dated 11 August 2008 at paragraph 20 records this;
(c)this remains the children’s view, notwithstanding they have now had ample time to settle into the father’s care;
(d)it is submitted that the children’s ages and maturity support their views being given substantial weight.
6.The father has inappropriately involved the children in issues between the parties, by permitting the children to read the Family Report:-
(a)Family Report dated 11 August 2008, page 2 at paragraph 7 records this;
(b)the mother denies any suggestion that [S] read the report whilst in her care;
(c)the mother’s Affidavit filed 17 November 2008 at pages 5 and 6 addresses this issue;
(d)it is submitted that it was inappropriate for the family report writer to report to determine that [S] saw the report whilst in the mother’s care.
7.The manner in which the father has conducted the proceedings which commenced 16 October 2007:-
(a)the father has participated actively in these proceedings;
(b)the father has sought variations to the Order made 23 August 2007 including:-
(i) suspension of the provision for the children to spend time with the mother;
(ii) a requirement for the children’s time with the mother to be supervised;
(iii) a requirement for the mother to undertake a parenting program, and be restricted to spending time with the children in Adelaide whilst doing so;
(iv) a reduction in the children’s telephone communication with the mother;
(v) the maintenance of the order restricting the mother’s attendance at the children’s school;
(c)it is submitted that the father must, implicitly, have been asserting a material change in circumstances in order to found the variations to the order made 23 August 2007 which he has pursued over the past eighteen months.”
During the hearing it was pointed out by the husband, and confirmed by counsel for the Independent Children’s Lawyer, that “the circumstances” set out in paragraph 1(a), (b) and (c) above could not be considered changed circumstances because they were in fact considered and dealt with by Bennett J in 2007. The wife’s counsel was unable to tell me why regard should be had to these matters and I then indicated that I would ignore them for the purposes of this hearing. In further considering this matter I remain of this view.
With the balance of the alleged changed circumstances it is first necessary to look at the reasons for judgment of Bennett J delivered on 23 August 2007. Indeed, as the counsel for the Independent Children’s Lawyer submitted, a relevant and convenient starting point is the Family Report dated 10 July 2007 prepared by Ms B, Family Consultant, for the purposes of the final hearing before Bennett J. Although lengthy, I consider it instructive to set out Ms B’s evaluation and recommendations in full as follows:
“EVALUATION
[S] and [T] are at the centre of a dispute between their mother, Ms [Noelle], and their father Mr [Fournier]. The parties separated in 2003, and this matter has been before the court since that time. There have been various Court Orders to allow [the father] to spend time with his children, but the conditions on the Order have not been followed. Unfortunately, [the mother] terminated the first interview early, and chose not to attend for interviews for the second and third reports despite strenuous encouragement. Consequently she has denied herself the opportunity to present her views.
The children have spent time with their father on only a handful of occasions since 2003, when the parties separated. There is no apparent justifiable reason why [the father] has been denied his right to have a relationship with [S] and [T]. There were allegations of domestic violence during the relationship, and [S] reported that there was an instant when her father attempted to kick her mother which appears to have occurred post separation. [The father] counter claimed that not infrequently [the mother] would hit and punch him to prove that he was a violent man, and attempt to provoke a physical reaction from him.
Those incidents have been noted in the first two reports, and it is the Consultant understands that there have been no subsequent reports of violence. However, whilst they remain significant as historical events, they do not address the current problems facing this family and the Court.
There appear to have been no issues with the quality or style of [the father’s] parenting. Although alleged, there is no evidence that the children have ever been at risk from their father. He has presented on all three occasions when interviewed as a loving, caring father. Why then has he not been allowed to share his daughters’ lives and contribute to their emotional well being? Perhaps part of the answer lies in [the mother’s] experience and memories of an unhappy marriage. She stated with honesty during interviews for the first Family Report that she had never loved [the father], and she believed implicitly that he married only to beget children, implying that he never loved her either, a point which he vehemently denied.
What followed the separation seems to have been a passionate and single minded desire to remove the children’s father from their lives. [The mother] has re partnered on at least two occasions and encouraged or insisted that the girls call those men ‘dad’. Not only would this be resulting in a sense of confusion for the girls, but it is completely emotionally destabilizing and grossly unfair. The Consultant made this comment in the first report with reference to [the mother’s] first partner, and apparently history is repeating itself with her second known partner, Mr [W]. It also remains unclear whether or not [the mother] has any intention of nurturing in the girls a sense of belonging to their [African] culture. Every child has the basic right to maintain and develop links with their cultural heritage.
Two years have passed since the Consultant first met the girls which equates to approximately twenty percent of their lives. They have spent time with their father nine times in four years. The Court has attempted to rectify the situation by making appropriate Orders to allow [the father] to increase his time with his children. However, [the mother] has historically totally disregarded Court Orders, with apparent impunity, and there is absolutely no evidence to suggest that she will voluntarily alter her behaviour in the future.
This Consultant stated in the last report in September 2006 that ‘given the failure of the last Court Order, one would be reluctant to recommend a repeat of a slow incremental contact plan again, and [the father’s] application to have the children live with him, and see their mother on a regular basis is not without merit. Perhaps it might be the only way that the Court can ensure that the children have access to their father’. In the Consultant’s opinion, the question now before the Court is not whether the children’s time with their father should be increased but whether or not they should live with their father in Adelaide.
The relationship between [T] and her father has always appeared positive, and, in the Consultant’s opinion, the difficulties she experienced in 2005 which were described in the first Family Report were due at least in part to the stress associated with long term paternal separation. With patience and perseverance the Consultant feels confident that [T] could settle into a comfortable routine with Mr and Mrs [Fournier].
The situation with [S] is more complex because of her entrenched belief that her mother has suffered as a result of her father’s violent behaviour. It is quite likely that mother and daughter had had many discussions relating to those events, and over the years [the father] has become quite demonic in the eyes of [S]. She has been encouraged to forget her father, and emotionally substitute not one but two men, by considering them her father and calling them dad. Her tears at the interview demonstrated to the Consultant that he has become emotionally fragile and vulnerable, and unless radical steps are taken now it will be too late for either of these children to have a meaningful childhood relationship with their father.
Two major difficulties associated with the children relocating to Adelaide are their obvious affection to their mother, and trauma they might experience being separated from her, and the need for them to change schools. Although it was reported that [S] is extremely settled at school, her unsolicited description of racism and bullying which appear to be present at her school suggest that a change of school would not be necessarily emotionally damaging. Both children are coping academically and with support this ability should be able to be transferred to another school of similar character. It is the understanding of the Consultant that in these familial situations schools generally liaise closely with each other.
Undoubtedly the children enjoy a excellent relationship with their mother, and this was evident during the first interviews. However, in the Consultant’s opinion there is co dependency which might not be in the children’s best interest. For example [the father] reported that in the first three days of these holidays, [the mother] has phoned the children approximately 15 times, and on at least one occasion instructed the children to tell their father they had a headache. If this were true this would place the children in an exceptionally difficult position as they struggled to maintain loyalties to both parents. Perhaps [the mother] felt concerned that the children’s enjoyment with their father might to some extent be at her expense.
[The father] has indicated that he is cognizant of the need for the children to continue to have a quality relationship with their mother. [sic] and that he would be prepared for the children to spend time with their mother on three quarters of all school holidays, and as often as practicable during the school term. If the Court chooses to take this action it is imperative that the children feel loved and supported by both of their parents, that they are not drawn in to the adult difficulties and complex problems which beset their parents, and that they are allowed to enjoy a happy childhood.
Understandably, a decision for the children to live with their father is likely to cause [the mother] considerable stress. In the Consultant’s opinion if the Court were to make the decision to relocate the children, [the mother] might need to be supported by appropriate professionals, and the Court might consider recommending her undertake psychological assistance at least in the transitional period.
RECOMMENDATIONS
For [S] and [T] to live with their father.
For [the mother] to be provided with all information in respect of the children and kept full [sic] informed of all issues relating to the children’s health, and emotional, psychological and academic progress.
For [the children] to spend time with their mother on three quarters of all school term holidays and three quarters of the Christmas holidays.
For [the children] to speak to their mother by telephone two times a week.”
Coming then to her Honour’s reasons. To repeat, both parties were unrepresented before her Honour but the Independent Children’s Lawyer was represented by counsel. The wife only attended the hearing on the first day. She made an unsuccessful application for an adjournment and then failed to appear thereafter. The balance of the hearing proceeded in her absence over two further days. In that time her Honour heard evidence from the husband and his new wife, from the Deputy Principal of the children’s school and from Ms B, Family Consultant. Her Honour also had before her the affidavits relied upon by the wife including the affidavits of her witnesses. Her Honour then heard the submissions of the husband and counsel for the Independent Children’s Lawyer, and on 23 August 2007 delivered extensive reasons for judgment. Her Honour carefully considered all of the evidence, the extensive procedural history of the case stretching back to 2003 and including the husband’s applications alleging contravention and the findings of guilt on the part of the wife in contravening parenting orders by refusing to allow the children to spend time with the husband. Her Honour then applied the relevant sections of the Family Law Act and concluded as follows:
“224.I will make orders which are largely in the terms of those sought by the father and the Independent Children’s Lawyer. The children will go to live with the father and his wife in Adelaide and be able to see the mother regularly and for most of the school holidays providing that she wishes to spend time with them. Taking into account the primary and the additional considerations, I am comfortably satisfied that a change in living arrangements for [S] and [T] is not only in their best interests but an imperative which should be achieved as quickly as possible. I cannot see any other means by which the children can be given the much overdue opportunity to have a meaningful relationship with the father as well as the mother and I am satisfied that a meaningful relationship with the father is a very real benefit to the girls.
225.The mother has not been unsuccessful in this case because she chose not to participate in elements of the reportable counselling assessment process or the final hearing. She has been unsuccessful because of her parenting of the girls to date and the refusal or inability to recognise that the girls have a need, and a right, to know and have a meaningful relationship with the father as well as with her.
226.I am satisfied that the parenting orders set out at the beginning of these reasons are consistent with the best interests of the children.”
Her Honour accepted the opinion and evidence of the Family Consultant, Ms B. However, her Honour disagreed with the Family Consultant as to the timing of the change in the living arrangements of the children. In the end result her Honour considered that that change should take place immediately. I have set out her Honour’s orders in paragraph 26 above.
As referred to above, there were further hearings before her Honour on 10 September 2007, 17 October 2007 and 18 October 2007. The result of these hearings, inter alia, was the granting of injunctions against the wife and the suspension of paragraphs 4(i), (ii) and (iv) of the orders of 23 August 2007.
The children have continued to live with the husband ever since, and they have been able to spend time with their mother pursuant to orders made in this Court in interlocutory proceedings and by agreement between the parties.
To return to the alleged changes in circumstances, under the heading of the husband’s failure “to exercise the responsibilities of parenthood appropriately” there are three topics left to consider, namely those adverted to in paragraphs 1(d), (e) and (f).
With paragraph 1(d), there is a clear factual dispute, with the husband setting out his position in paragraph 10 of his affidavit filed on 27 February 2009. However, I am not in a position without admissible evidence and cross examination of each party and their witnesses to make any findings about this. Thus, I consider that the wife has not satisfied the onus that she has to establish that this is a sufficient change in circumstances to warrant a re-litigation of the children’s living arrangements. In any event, I observe that this single issue, even if I accepted the evidence that the wife presents, would be extremely unlikely to lead to a significant change to the current order.
A similar situation exists with the issue raised in paragraph 1(e). The husband says that the issue was dealt with by Bennett J, but in any event, even accepting the evidence of the wife, this is not such an issue that would lead to a significant change or variation of the existing order if there was a new hearing.
In relation to paragraph 1(f), the alleged “complaints” of the children are also the subject of dispute by the husband, as is the alleged “distress” of the children in being required to return to Adelaide. It is not safe in this case to rely on “complaints” that the children are reported to have made and views that they are said to express to the wife and/or her partner about with whom they want to live or what is happening in the husband’s household. That issue was addressed comprehensively in the three reports of the Family Consultant that were before Bennett J, by Bennett J herself in her Honour’s judgment, and as I will be referring to in a moment, in the two reports of Ms DN. Thus, I am not prepared to find that this is a changed circumstance such that re-litigation of the issue as to with whom the children should live is necessary.
Perhaps at this point it is appropriate to consider the reports of Ms DN given that they address a number of the alleged changes of circumstances promoted by the wife.
The report of 25 June 2008
This report was ordered in the context of the children not having spent time with the wife since the order for suspension made by Bennett J on 18 October 2007, and the focus was around the possible lifting of that suspension. Of course, in the background was the wife’s application that the children live with her. Ms DN identified the issues in dispute as follows:
“13. While the mother’s proposal is that the children are returned to her care, the focus of this assessment is towards the issues associated with the children spending time with their mother.
14. For the father, the main issues were the mother’s willingness or capacity to abide by court orders in the future, and his concern about the mother telling [T] that he is not her biological father.
15. Arising during the course of the assessment were the following concerning issues;
· The effect on the children of the entrenched negativity demonstrated by their mother toward their father.
· The possibility that the mother has an underlying emotional problem leading to her inability to really focus on the children’s needs.
· And the possibility that the mother will in the future not abide by orders made by the court.”
Again, it is instructive and in my view necessary to set out in full the assessment and recommendation of Ms DN at this time:
“Assessment
60. The orders in relation to this assessment specified that the Family Consultant specifically address the following issues:
a) Whether it is appropriate for the mother to resume her time to be spent with the said children;
b) If so, under what circumstances should she resume her time to be spent with the said children;
c) Whether or not supervision of the mother’s time is indicated;
d) The mother’s view of her capacity to comply with the Orders of this Court in the future; and
e) any other matters deemed appropriate for investigation by the Family Consultant
61. The matter continued, at the time of this assessment, to be characterised by polarised positions and by very different information provided by either side, about past events.
62. At the time of this assessment, the girls were living with their father and had not seen their mother since October 2007. The observation of the girls with their mother indicated that there is a strong bond between the girls and their mother, and that the girls are very comfortable with their stepfather, Dr [W].
63. The presentation of the girls did not contradict in any significant way the information provided to the writer by the Independent Children’s Lawyer who had communicated with school personnel. This information was positive in every regard about the girls’ participation and presentation and progress at school. From the assessment, it seemed that the girls enjoyed a happy family life with their father and that they enjoyed relationships with friends and their families, including other families of African origin. The girls appeared to be developing very well and to be confident about the love and care of their father and stepmother.
64. The girls clearly conveyed that they love both of their parents. They both indicated that they wish their parents were able to stop the conflict. It was clear to the writer that both children have a positive bond with their stepmother and their stepfather. The girls miss seeing their mother. [S’s] responses and views were comprehensive and confidently expressed. She conveyed a wish to support both her parents and to be fair to both her parents. She also expressed her own genuinely felt sense of investment in her life with each of her parents. She was quite clear that she feels as though she has two families.
65. At the same time as they have missed seeing their mother, it is likely that the girls have flourished over the past months through not being subjected to the same level of denigration of their father. It was clear that the girls have profound discomfort about their mother’s ongoing denigration of both their father and their stepmother.
66. As indicated in the body of the report, [S] articulately and passionately conveyed her wish that her parents resolve the ongoing court matter which has affected both girls for a substantial portion of their lives. [S] conveyed that she thought that the necessary communication between her two families may progress better if Dr [W] were to speak with [the father]. In this and in other respects, [S] provided her own ideas and strategies as to the possible ways this matter could be resolved. [S] said that, ideally, she would like to live with each of her parents for two years at a time. In the meantime, she said that she wanted both the girls to be able to spend time in Melbourne during the school holidays.
67. [S] is 12 years of age and presented as quite mature and very confident. In the writer’s view, her expressed wishes appeared to be very much her own. It is the writer’s concern that [S] is still vulnerable to the ongoing effects on children of prolonged parental conflict, which appear to have played out in destructive ways previously, as has been documented by the previous report writer and addressed during the trial proceedings following the failure of the mother to return the girls to their father in October 2007. It is therefore the recommendation of the writer that, under the circumstances that the parents continue to be in conflict, the orders for the girls to live with their father be firmly in place for the foreseeable future, and only change, if at all, with the agreement of the father. The girls need to be substantially older before they will have sufficient emotional development to withstand the pressure that their mother exerts seeking that the girls choose her over their father. This constitutes a very stressful situation for children.
68. In regard to this recommendation about the ongoing arrangements for the girls, the writer refers to the previous three Family Reports, as well as other material contained in the court file, which indicate that a primary issue of concern throughout this long-running matter has been the evident wish of the mother to impede the girls’ relationship with their father. In her third Family Report, dated 10/7/2007, Ms [B] stated, “What followed the separation seems to have been a passionate and single minded desire to remove the children’s father from their lives”. In the writer’s view, there was no evidence from this assessment that this mother had progressed at all in her capacity to support the girls’ relationship with their father.
69. [The mother] continued to pursue the issue of [T’s] parentage. Whether or not she seriously believes that there is doubt about [T’s] biological parentage, it is an issue which needs to be settled. It is the writer’s opinion that DNA parentage testing should be obtained and paid for by the mother, as soon as possible, in order to settle this issue for all concerned.
70. The conversations about future directions for this matter indicated that [the father] was willing to consider a range of proposals which allowed for the girls to spend generous amounts of the school holidays in the future in Melbourne with their mother. He initially wanted the mother to demonstrate the capacity to abide by orders in future, by being required to have supervised time with the girls on several occasions. He engaged in discussion with the writer, who put the view to him that such a requirement may achieve little in the long run, and he consequently abandoned the proposal.
71. Dr [W] was willing to contribute to the overall situation, expressing that he would “guarantee” to ensure that the girls were returned to Adelaide on schedule, although a subsequent conversation with [the mother] raised the question as to whether his influence on her would be sufficient to add to the probability of smooth handovers in the future. The relationship between the mother and Dr [W] is still relatively new. Certainly the writer was confident that Dr [W] would endeavour, in the future, to encourage [the mother] to abide by orders of the court, and [the father] indicated that he trusted that Dr [W] would be a positive influence in the situation in future.
72. [The mother’s] contributions to the discussion were, overall, inconsistent and disturbing. [The mother’s] ongoing vitriolic commentary about the father and anyone he is associated with seemed at times to manifest a florid quality. In combination with other qualities demonstrated by [the mother], the writer conjectured that this mother may suffer from significant emotional problems which are disabling for her and preventing her from constructively moving on from the past relationship with [the father] in order that she focuses on the needs of the children. While [the mother] is apparently able to function not just competently but at a high level in various areas of her life, in regard to managing the personal situation of her children and her ex-husband, she appears throughout the duration of this long-running court process to demonstrate highly dysfunctional behaviour and much of her presentation in this assessment continued in this same fashion.
73. After many conversations during which she appeared unable to focus on any discussion unless it concurred with what she believed should occur, the writer was left with a low confidence that this mother is really able to cooperate with plans that she does not agree with. The only indication which may inspire some confidence that [the mother] was able to think coherently about spending time with the girls in the future was that she sought to ring the writer finally with some constructive proposals. At that point she said that she would like to be able to travel to Adelaide to spend weekend times with the girls, where she proposed that she would collect the girls from school on Friday and return them to school on the Monday mornings (or on the Tuesday mornings in the event of a long weekend).
74. In the writer’s view, the issue of telephone communication between the girls and their mother may be best resolved by orders which specify that there is one definite time each week that the girls speak with their mother, and that any other communication is by agreement from the father. The proposal of the father is that this weekly telephone communication occurs on Thursday evenings. It is likely that at [S’s] age, it will not be long before she has her own access to her mother by phone, leading to situations where [T] also can speak with her mother at these times. The writer is confident that [the father] is genuinely able to support the girls appropriately to maintain their relationship with their mother.
75. It is the opinion of the writer that in spite of [the mother’s] great objection to any involvement of her partner in communication with the father about arrangements for the girls, in the absence of any evidence that she herself will be able to constructively communicate about the girls, it may be in the girls’ best interests for some conversations to occur between Dr [W] and [the father]. This was a wish fervently expressed by [S], who has attained an age where she is able to see that some of the adults in her life are less likely to escalate conflictual situations. The writer has therefore included in the recommendations a proposal that the court consider making orders which legitimise Dr [W’s] role in the necessary liaison between the two homes.
Recommendations
76. That the children live with their father and stepmother.
77. That DNA testing to establish whether Mr [Fournier] is [T’s] biological father is undertaken as soon as possible and funded by the mother.
78. That as a basic arrangement, the children spend half of all school holidays with their mother, where any increase in the amount of time they are with their mother during school holidays is by agreement between the parents.
79. That in the event that the mother fails to return the girls according to court orders, or according to any other arrangement made between the parents, that the costs associated with filing an order for the recovery of the girls, and any other costs incurred during the recovery of the girls, be borne by the mother.
80. That the parents share equally in the costs of the children’s travel to spend time with their mother during school holidays unless otherwise agreed between the parents.
81. That if it is agreed between the parents, the girls spend no more than two weekends each school term with their mother either in Adelaide or Melbourne, and that the costs of this time be borne by the mother.
82. That as a basic arrangement, the girls speak with their mother once a week by telephone, on Thursday evenings unless another time is agreed between the parents and that any other telephone communication between the mother and the children is with the agreement of both parents.
83. That the mother’s partner Dr [W] be included as a party in this matter.
84. That the court considers orders which require that Dr [W] be delegated with the task of liaising, as needed, with the father in regard to arrangements made for the girls.
85. That the court consider ordering a follow-up session for the children with the writer to provide counselling about the consequences of the court orders for the children.”
This report clearly addresses and disposes of a number of the alleged changes in circumstances identified by the wife for the purposes of this hearing. For example, the issue of telephone communication, the wishes of the children and the alleged development of an understanding by the wife of the need to promote the children’s relationship with their father. It is quite apparent to me from this report and from the affidavit material relied on by each of the parties in relation to these topics that there is no changed circumstance that would in any way justify re-litigating the issue of with whom the children should live.
The report of 11 August 2008
This report was prepared as an update and to specifically consider the outcome of the children spending the July school holidays with their mother. Once again, it is necessary and instructive given the nature of this hearing and the inability to make findings as to disputed facts by merely reading affidavits and hearing submissions from counsel and parties, to set out in full the assessment and recommendations of Ms DN. She of course was cross examined by the wife’s counsel about some aspects of her report, and I have no hesitation in saying that I accept the accuracy of the reports and Ms DN’s evidence, and I place great weight on her opinions, assessment, and recommendations. In any event, in this second report Ms DN said this:
“Assessment
21. [S] presented during the interview as being defensive about her mother, and as being strongly aligned with her mother. This presentation differed significantly from that demonstrated during interviews for the previous report, less than two months earlier. Since then, the girls have spent the July school holidays with their mother.
22. It was concerning that [S] said that she had read the Family Report, and that she felt it necessary to mount an attack of the court system as having been “biased” against her mother. [S] said that her father had shown her the report. The writer found this surprising and questioned first [the father], and then [the mother]. It is concluded, by this writer, that [the father] is highly unlikely to have done this. Nothing in [the father’s] presentation or statements throughout this writer’s experience supports a conclusion that he would abandon his normal protectiveness of the girls by acting in this way. Therefore, either [the mother] showed the report to [S], or left the report somewhere where it was accessible to the child, or, alternatively, [S] sought out the report and found it on her own. In the writer’s opinion, [the father] presented as being careful that this would not happen in his home. [The mother], on the other hand, has made repeated comments throughout the interviews for both reports such as, “The girls know what I’ve been through” and other similar comments, and this writer does not doubt that [the mother] has conveyed to [S] aspects of the way the court process has impinged on her. The writer’s experience is that [the mother] has little capacity to restrain her need to express her views about [the father] and any of his associates.
23. It is important to acknowledge [the mother’s] very positive qualities, since some of the ways she has behaved have caused concern in regard to the effects on the children. [The mother] is an intelligent, energetic and socially active African woman who appears to be passionate about her life and activities, who is proud of what she has achieved and who wants her own daughters to achieve much in their lives. The girls both love her dearly and it is likely that they would have enjoyed their holiday in Melbourne very much.
24. It would have been easy to arrive at a conclusion from this assessment that [S] really wishes to live in Melbourne with her mother. When asked whether this was what she wanted, [S] nodded, and went on to make statements such as “It’s just that I don’t think I can achieve anything personally” (in Adelaide). This style of comment is clearly in alignment with the kinds of comments often expressed by her mother in the course of discussion. [The mother] has demonstrated clearly that she freely expresses a range of rather flamboyant views, such as “there are no opportunities at all for the girls over there” and other similar statements.
25. [S] said that she would love to live with her mother and spend holiday time with her father in Adelaide. In the writer’s view, there are some things that need to be considered before concluding that [S’s] stated wish to live with her mother can be assessed as in her best interests, or even as a completely unforced expressed view. One is that [S], in the writer’s opinion, untruthfully reported that her father had shown her the Family Report. If this is the case, then [S] is demonstrating quite a strategic defence of her mother, and is likely to have been strongly influenced during her time with her mother. Another is that the reasons that both children provided when they were talking about their preference to live with their mother were dominated by material concerns and by agendas about achievement which clearly emanate from [the mother]. [S] said, for example, that her mother had promised that she would provide the child with a “convertible” when [S] reaches 16. For an intensely socially aware child such as [S], such a promise would be very beguiling.
26. Further consideration of the issue raised by [S] about being uncomfortable in calling [the father’s wife] “Mummy” is also indicated. Once again, on the surface, [S’s] discomfort appeared to be easily interpreted as an indication supporting her wish to live with her mother. This could be the case. It is also possible that [the mother’s] lack of recognition of [Mrs Fournier’s] role in the life of [the father] and the girls, has led to commentary from the mother which has been experienced by [S] as pressure to demonstrate loyalty toward her mother. There is no previous indication in the writer’s knowledge that [S] was experiencing any discomfort about her relationship with [the stepmother] over the past year. And, the writer accepted the information provided by both [the father] and in a phone call by [the stepmother], that after about a week of acting-out, [S] began to settle down and to resume her previous comfortable and loving relationship with both her father and her stepmother.
27. [T] did not spontaneously express that she wanted to live with her mother, but did answer in the positive when asked this question. While this response may indicate a true wish to live with her mother, in the writer’s opinion it is more likely that [T] also internalised some pressure to demonstrate loyalty toward her mother and that this young girl is quite vulnerable to influence by her mother. Her proffered reasons for moving to her mother’s care were insubstantial. The writer is very aware that [T], like her sister, loves her mother, misses her, and would have really enjoyed her time with her mother. Nevertheless, in the writer’s opinion, the overall information available supports the conclusion that both girls are very settled in their father’s care.
28. It is not asserted by this writer that [the mother] necessarily sets out to strategically influence her daughters to act according to her agenda. It is the writer’s opinion that she cannot help herself, as a result of her inability to relax her dramatically negative view of the father, his wife and his associates. The writer’s impression is that while [the mother] would never intend to behave in a way that negatively impacted on the children, her own boundary issues sometimes result in a merging of her own agenda with that of the best interests of the children.
29. If it were that [the mother] had either blatantly or surreptitiously arranged for [S] to be able to read the previous Family Report, this would have to be considered a destructive and self-serving intention to induce sympathy and loyalty in this child, but it is not clear how [S] was enabled to read the Family Report.
30. [The father] consistently presented as being appropriately protective and supportive of the girls. He acknowledged that it is possible that in the future it may be appropriate for them to return to their mother’s care. In the writer’s view, the relationship that both he and [the stepmother] have with the girls is comfortable and secure, and the girls would be able to share their feelings and wishes, both in the present and in the future. It is further the writer’s view that [the father] is likely to respond appropriately to any expression of the wishes of the girls in the future by discussing options with them, and that there is, therefore, little need to be concerned that [S] may suffer from ongoing resentment about her wishes not being listened to.
31. Both the girls are likely to miss their mother at times. Therefore, ongoing and substantial holiday time where they spend time with their mother and stepfather is indicated. Hopefully, at times it will be arranged that [the mother] can spend weekends or long weekends in Adelaide with the girls during school terms.
32. As during the assessment for the previous report, [the mother] continued to be adamant that she would be in control of any communication with [the father] in regard to the children, even though she also maintained emphatically that she never intended to speak with [the father]. This situation does not appear to be particularly effective in maintaining future relevant communication about the girls between the parents. [The mother] was strident in her opposition to any notion of allowing her partner Dr [W] to participate in communication, even though from the writer’s point of view, Dr [W] appeared to be more likely able to conduct relevant conversations about such things as the girls’ travel arrangements with either [the father] or [the stepmother]. When asked to comment on how such necessary communication could occur in future, [the mother] mentioned that she would use “registered mail”. This seemed to be an unnecessary step and to again point to [the mother’s] flamboyantly distorted view about [the father].
33. The writer is unable to provide a coherent explanation of the reason for the very adamant position taken by [the mother] in regard to communication. The recommendation in the previous report by this writer, that Dr [W] be considered by the court in regard to orders made for the future, may or may not be appropriate, as such orders may create tensions in [the mother’s] relationship with her partner in the future. The default situation is that with clear orders in place, the two families will have to find the ways that are needed for necessary communication to occur in future, and this will probably include that [S] will take some responsibility in this.
34. The recommendations made in the writer’s previous report have been adjusted and are now as follows.
Recommendations
35. That the children continue to live with their father and stepmother.
36. That the children spend half of all school holidays with their mother unless different arrangements are agreed between the parents.
37. That, unless otherwise agreed, the parents equally share the responsibility for the travel required for the school holiday arrangements.
38. That in the event that the mother fails to return the girls according to court orders, or according to any other arrangement made between the parents, that the costs associated with filing an order for the recovery of the girls, and any other costs incurred during the recovery of the girls, be borne by the mother.
39. That upon agreement between the parents, the girls spend the occasional weekend or long weekend with their mother during school terms, where the mother collect [sic] the girls from school on the Friday and return [sic] them to school on the following Monday, or Tuesday, in the event of a long weekend.
40. That the father pursue parentage testing in regard to [T] if he determines this is required, and that the costs for this test are covered by the mother.
41. That the girls have a specific time on one occasion each week, and no sooner than Wednesday, where they have telephone communication with their mother, with other communication according to the wishes of the children and the agreement of both parents.”
It is again immediately apparent that this report also disposes of some, if not all of the alleged changes of circumstances promoted by the wife, and in particular the issue of the children addressing their step-mother as “mummy”, the wishes of the children and the claim that the wife now recognises the need to promote the children’s relationship with their father.
In relation to the issue of the wishes of the children, it is instructive to look again at what Bennett J said on this topic in her Honour’s reasons for judgment delivered on 23 August 2007. Her Honour said this:
“126.The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer.
127.In the present case, the children’s views are expressed through the assessment of Ms [B], the family consultant. Her assessment is that there are no articulated views expressed by either child upon which I should place weight. I infer that she is discounting the telephone call by [S] in May 2007. If she isn’t, I would do so given that I have accepted Ms [B’s] assessment that the mother was complicit in the child placing the call.
128.The family consultant’s assessment is that the girls’ views are best discerned from the way that they relate to the father and that they relate to him well and affectionately. Insofar as [S] said as recently as the interview in June 2007 that she “hates” the father, the family consultant has opined that the child’s statement was not congruent with her demeanour and that she does not accept that as the child’s genuine view. I accept that expert opinion.
129.The family consultant expressed the opinion, based on her observations, that the girls would really appreciate having a relationship with the father. The independent children’s lawyer made submissions consistent with that. I conclude that there are no views expressed by the children which are contrary to them going to live with the father and to which I should accord weight.” (Footnotes omitted)
In my view, nothing has changed and the wife took the opportunity during the July school holidays to influence the children, to impose her views and to bombard them with commentary about her criticisms of the husband.
It is equally apparent to me that the wife has still learnt nothing of the importance of the children having a relationship with their father.
In paragraph 6 of her case outline the wife seeks to promote as a change in circumstances that the “father has inappropriately involved the children in issues between the parties, by permitting the children to read the family report.” I query how this can be considered a change in circumstances within the meaning of the authorities, but in any event I accept the evidence of Ms DN and find that the most likely person to have shown the Family Report of 25 June 2008 to the child S is the wife and not the husband. I refer to paragraph 22 of Ms DN’s report of 11 August 2008 and I note that she was cross examined about this by the wife’s counsel at the hearing and further explained her reasons for her conclusion. I agree entirely with what Ms DN says. Thus, not only is the allegation in paragraph 6 not something that I accept as a change in circumstances, but the circumstance of it being the wife who has shown the report to the child confirms my view that the wife has learnt nothing about not involving the children in the adult dispute.
The only remaining matter that I need to consider is paragraph 7 of the wife’s outline. I find it incomprehensible that such a flawed submission should be made. The husband has been required to participate actively in the proceedings because of the wife’s behaviour and the applications that she has made. Again the husband has had to seek his own variations to the orders made on 23 August 2007 because of the behaviour of the wife. He has needed to act in the best interests of his children. Thus, to suggest that that indicates a “material change of circumstances” which requires re-litigation of the issue of with whom the children live is simply unbelievable.
Conclusion
I consider that the affidavit material relied upon by the parties, and the reports and oral evidence of Ms DN illustrate that there is no significant change in the circumstances of the children such that the issue of with whom they should live should be re-litigated. Indeed the issues affecting the children remain the same. The allegations of the wife which are said to be changes in circumstances are in the main manifestations of the fact that the relevant findings of Bennett J, including the wife’s “refusal or inability to recognise that the children have a need, and a right, to know and have a meaningful relationship with the father as well as with her”, and the influence of the wife’s attitudes on the wishes of the children, continue to pertain. I also agree with the submission of the counsel for the Independent Children’s Lawyer that even viewed cumulatively the alleged changes of circumstances are still insufficient, and there is no evidence that puts in doubt the conclusions of Bennett J that the change in living arrangements her Honour brought about was not only in the best interests of the children but it was “an imperative” which had to be achieved as quickly as possible.
However, that is not to say that the issue of the children spending time with the wife and in particular the reintroduction of the orders made in that regard by Bennett J are in the same category. There is still a need to return to that issue, and in that context to make an order that would be in the best interests of the children given that they will be living with their father in Adelaide and the wife living in Melbourne.
The wife in her Amended Initiating Application does not seek any Final Orders on this basis. She sought orders that the children live with her and spend time with the husband. However, given that I will be dismissing that application, presumably the wife will then file an application to seek such orders. Likewise the husband’s Response is limited to addressing the orders sought by the wife, and that will be dismissed as well. Of course though, depending on what the wife does, the husband may have to file a Further Response, and in any event he will need to file his own document if he continues to seek an order that the wife undertake a parenting course as a basis for reintroduction of the orders suspended by Bennett J on 18 October 2007.
I note of course that dismissing the wife’s application in so far as it seeks Final Orders would still leave her application for Interim Orders, but under the Rules of Court that can only proceed if there is an application for Final Orders on foot. Thus I will adjourn the Interim Orders Application to a convenient date for the Court and the parties to await the outcome of whether the wife will be pursuing alternative Final Orders. Likewise, the husband has an Amended Application in a Case that is yet to be determined, namely the application filed on 27 February 2009. I will adjourn that application to the same date.
I certify that the preceding 94 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 30 April 2010.
Associate
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Remedies
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