Peast and Peast

[2014] FCCA 66

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEAST & PEAST [2014] FCCA 66

Catchwords:
FAMILY LAW – Orders made three years ago – child very limited time with the mother – mother has no parental responsibility – mother issues application and seeks equal shared parental responsibility and significant time with the child – father objects on the basis of Rice & Asplund – changed circumstances established in relation to mental health issues – matter should proceed to further hearing.

Legislation:

Family Law Act 1975, ss.61C(1), 61DA(1), 65DAA

DL & W [2012] FLC 93-496
Mann & Prewett [2013] FMCAfam 314
Marsden & Winch [2010] 42 Fam LR 1
Rice & Asplund [1979] FLC 90-725

Applicant: MS PEAST

Respondent: MR PEAST

File Number: MLC 2055 of 2009

Judgment of: Judge Curtain

Hearing date: 13 December 2013

Date of Last Submission: 13 December 2013

Delivered at: Melbourne

Delivered on: 31 January 2014

REPRESENTATION

Counsel for the Applicant: Ms Pearson

Solicitors for the Applicant: Altona Legal

Counsel for the Respondent: Mr Arnold

Solicitors for the Respondent: Marcou & Associates Pty Ltd

ORDERS

THE COURT ORDERS THAT:

1. The father’s interim orders sought in his Response filed 24 June, 2013 be dismissed.

2. All extant proceedings be listed before Judge O’Dwyer for Directions on 12 March, 2014 at 9.45 am in the Duty List.

3. Until further order the mother shall undertake regular observational care through her treating psychiatrist as advised by him and inform the father forthwith of any deterioration in her depression, anxiety or obsessive-compulsive disorder.

4. The parties’ costs be reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2055 of 2009

MS PEAST

Applicant

And

MR PEAST

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 13 May, 2013 the mother, Ms Peast filed an Initiating Application seeking, inter alia, orders for equal shared parental responsibility and extended time with her daughter, X born (omitted) 2005 (“X”) as follows:

   “4. The child spend time with the mother as follows:

   (a) from 10.00am on Saturday morning until 6.00pm on Sunday evening for three (3) consecutive alternate weekends;

   (b)thereafter from after school on Friday (or 5.00pm if a non-school day) until the commencement of school on Monday (or Tuesday if Monday is a non-school day),

   (c)on Mother’s Day from 5:00pm on the preceding day to 5:00pm on Mother’s Day with the father to have the same time if Father’s Day falls at a time the said child is with the mother,

   (d)for one week during each of the three mid year school term holidays at times to be agreed, and failing agreement:

   (i)for the first week during each of the three mid year school term holidays during 2013 and each alternate year thereafter; and

   (ii)for the second week during each of three mid year school term holidays during 2014 and each alternate year thereafter.

   (e)For three weeks during the long summer/Christmas holidays at times to be agreed, and failing agreement:

   (i)for the second three weeks of 2013 /2014 long summer/Christmas holidays and each alternate year thereafter, and

   (ii)for the first three weeks of 2012 /2013 long summer/Christmas holidays and each alternate year thereafter.

   (f)During Easter at times to be agreed, and failing agreement:

   (i)from 3:00pm Easter Sunday to 3:00pm Easter Monday commencing 2013 and each alternate year thereafter; and

   (ii)from 3:00pm Easter Saturday to 3:00pm Easter Sunday commencing 2014 and each alternate year thereafter.

   (g)On Christmas Day:

   (i)from 3:00pm Christmas Day to 3:00pm Boxing Day in 2013 and each alternate year thereafter;

   (ii)from 3:00pm Christmas Eve to 3:00pm Christmas Day in 2014 and each alternate year thereafter.

   (h)On the said child’s birthdays:

   (i)from 3:00pm to 7:00pm if the birthday falls on a non-school day; and

   (ii)from 6:00 pm to 8:00 pm if the birthday falls on a school day.

   (i) On the mother’s birthday:

   (i)from 3:00pm to 7:00pm if the birthday falls on a non-school day; and

   (ii)from 6:00pm to 8:00pm if the birthday falls on a school day.

   (j)Time with the mother be suspended on the father’s birthday;

   (i)from 3:00pm to 7:00pm if the birthday falls on a non-school days; and

   (ii)from 6:00pm to 8:00pm of the birthday falls on a school day.

   (k)By telephone each Wednesday evening between 6.00pm and 7.00pm with the mother to initiate the call and the father ensure the child is available, and

   (l)At such other times as may be agreed between the parties from time to time.”

2. The father in his Response which was e-filed 24 June, 2013 sought, in essence, orders for the mother’s application to be dismissed without any further orders, leaving the earlier orders made 22 December, 2010 in place.

3. He did so on the basis of Rice & Asplund [1979] FLC 90-725, an authority well known to informed lawyers in this jurisdiction.

Background

1. The mother is aged 38 years and the father is aged 36 years.

2. According to the mother, the parties commenced cohabitation on (omitted) 2000, whilst the father says it was in early March, 2003.  The mother says they were married on (omitted) 2004, but the father says it took place on (omitted) 2004 and the mother alleges that they finally separated on 1 June, 2008 whereas the father claims it was on 23 July, 2008. 

3. On any view, the parties cohabitated, according to the mother for around 8 years, and the father says it was around 5 years.  They have one child of the marriage, X who is currently aged 8 years.

4. The father remarried in 2010 and they have one child aged around 18 months.  His wife has two children from an earlier relationship who reside with them and spend time with the biological father. 

5. The mother has a partner, a Mr P.  She alleges she lives with her mother and sometimes lives with Mr P. 

6. It is common ground that final parenting orders were made on 22 December, 2010 in the following terms:

   “BY CONSENT IT IS ORDERED

   1. That all previous parenting orders in relation to the child, X born (omitted) 2005 (“the child”) be discharged.

   2. That the Father have sole parental responsibility for the child.

   3. That the child live with the Father.

   4. That subject to paragraph 6 (a), 6(b) herein the Mother spend time and communicate with the child:

   a) Until the 21st of March 2011 for each Saturday from 1.00 pm to 5.00 pm save for the last Saturday in each calendar month, (and noting Christmas Day 25 December 2010, is the last Saturday in the month of December 2010).

   b) Commencing the first Saturday after the 21st of March 2011 each  Saturday from 11.00 am to 5.00 pm save for the last Saturday in each calendar month.

   c) Commencing 2 July 2011, each alternate Saturday for a period of 8 hours from 10.00 am to 6.00 pm.

   d) For three hours on the child's and Mother's birthdays from 4.00 pm to 7.00 pm.

   e) On Christmas Eve from 1.00 pm to 6.00 pm.

   f) On one day during the Easter weekend from 1.00 p [sic], to 4.00 pm on a day nominated by the Father 7 days in advance.

   g) On Mother's Day from 11.00 am to 5.00 pm.

   h) By telephone each Monday, Wednesday and Friday between 6.30 pm and 7.00 pm and the Mother shall provide the child with a pre-paid mobile phone and the Father shall ensure that the phone is situated on and where necessary, shall facilitate the call.

   5. That each party notify the other as soon as possible of any medical emergency involving the child requiring specialist medical treatment or hospitalisation whilst the child is in their respective care.

   6a) That all time spent pursuant to paragraph 4(a) and (b) hereof be supervised by the Maternal Grandmother, Ms C on two (2) out of three (3) Saturdays and supervised by Ms M on one of the three occasions in each  calendar month.

   b) That it is requested that Ms M provide the Husband with 7 days notice of her intention to supervise time.

   7. That the Father shall ensure that the Mother can receive copies of school reports, parental notices, newsletters and photo order forms and both parents be permitted to attend the child's sporting, social, cultural and educational events that parents are ordinarily invited to attend.

   8. That in the event that Ms M is unable to supervise time then it is requested that Ms M:

   a) Notify the Father on the Thursday evening beforehand by phone or SMS text;

   b) Not disclose the husband's address to the Mother of the Maternal Grandmother.

   9. That for the purposes of the Mother spending time with the child:

   a) If supervised by Ms M then the changeover to take place at the residence of Ms M.

   b) If supervised by the maternal grandmother the child will be delivered by the Father or his  agent to McDonald's at  (omitted) Shopping Centre ((omitted)) and returned there and that the Mother not communication [sic] with the Father or his agent.

   c) In the event the Mother moves to the (omitted) environs, such changeover to take place at (omitted) Shopping Centre, (omitted) Shopping Centre.

   10 a) that in the event that the Mother does not attend within 30 minutes of the start of time, time will be forfeited.

   11. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   12. Pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the Mother, the Father and the Independent Children's Lawyer.

   NOTED

   That the Maternal Grandmother has given an undertaking to the Court.”

7. In my view what is notable about these orders and the current proceedings is the following:

   a)X was aged 5 when they were first made, she is now aged 8 years.  Neither party argued that this was a significant issue in this matter, nor put any weight on this;

   b)The father was granted sole parental responsibility under the orders and the mother now seeks equal shared parental responsibility.  This is a significant matter; and

   c)Under the current orders, X was granted limited time with her mother with the graduated weekend time developing to alternate Saturdays for 8 hours from 10.00 am. There is no provision in the 2010 orders for the child to spend time with the mother during overnight, mid-week or holiday periods.  This is subject to agreement, if any, between the parents. This is a significant matter.

The law

1. As I said earlier, the 1979 case of Rice & Asplund is well known to competent family lawyers and the principle enunciated in this earlier authority has been examined and refined by many subsequent cases.

2. The most recent and helpful authority in this area, in my view, is the judgment of my former brother, then known as Federal Magistrate Foster in Mann & Prewett [2013] FMCAfam 314 where he said at page 12 of his reasons the following:

   “47. As to the threshold issue the court is required to be satisfied that there has been some changed circumstance or factor that would justify the court again examining substantive parenting orders made in relation to that child and how the welfare of the child should best be served (Rice and Asplund (1979) FLC 90-725).

   48. In Freeman and Freeman (1987) FLC 91-857 Strauss J said at 76,470-71:

   Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. For these and like reasons the court may, in an appropriate case, scrutinise with some care an application such as the one in question here when a party applies for what is, in effect, the reversal of an order made a short time previously. The court may enquire what the facts and circumstances are before it embarks on what might be a lengthy and costly hearing: The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being.

   Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should be not overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.

   49. In Rice and Asplund (1979) FLC 90-725 the leading judgment was given by Evatt CJ, with whom Pawley SJ and Fogarty J expressed their agreement. Having discussed certain authorities Evatt CJ said:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever-present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, (Gilder v. Gilder VSC Barber J. 17 February 1967) there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material ... These are not necessarily matters for 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 (emphasis added).

   Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. (emphasis added) The court must apply the principles of sec 64 and weigh up the factors for and against the proposals for each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reason for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard

   50. The court also has had regard to the consideration of the application of the so called “rule” in Rice and Asplund by the Full Court in Miller and Harrington [2008] FamCAFC 150 commencing at [72]:

   72.    It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.

   73. The application of the rule occurs within proceedings to which the provisions of Division 12A of Part VII of the Act apply. More specifically, the application of the rule occurs as part of “child-related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.

   74.    Included among the mandatory requirements upon a court are: the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ (1)(a)) and to “deal with as many aspects of the matter as it can on a single occasion” (s 69ZQ(1)(g)).

   75.    The provisions of s 69ZR (1), empower the court to “make a finding of fact in relation to the proceedings”, to “determine a matter arising out of the proceedings” and to “make an order in relation to an issue arising out of the proceedings” if the court considers that “it may assist in the determination of the proceedings”. The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “... at the same time as making final orders”.

   76. The terms of s 69ZN of the Act, which set out the “principles for conducting child-related proceedings” also apply to a hearing in which the rule in Rice and Asplund is applied at a preliminary stage. In particular, s 69ZN(3) and (5) provide:

   (3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

   ...

   (5) The third principle is that the proceedings are to be conducted in a way that will safeguard:

   (a) the child concerned against family violence, child abuse and child neglect; and

   (b) the parties to the proceedings against family violence.

   77.    In SPS and PLS [2008] FamCAFC 16 Warnick J said:

   “... in strict logic, if a judge is unable to determine on the papers if a change of circumstances, sufficient to embark on a fresh hearing of a parenting issue exists, then what the judge should embark upon is a hearing directed to that question, not one directed to “how the welfare of the children should best be served”..

   However, ellipsis in logic or not, subsequent authority has clearly reiterated that if the rule is not applied as a preliminary matter, then the hearing that follows is a full hearing of the “custody dispute”.

   78.    Warnick J goes on to say:

   “... In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify a fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before a court. The nature of the hearing that follows if the Rice v Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.”

   79.    Later, His Honour says:

   “Thus, in my view, when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of the party to appear or some lack of compliance with form and procedure, but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will, or ought be, about the interests of the child in not being subjected to further litigation, is more powerfully in the child’s welfare, than to allow the application to continue.”

   80.        In our view, that passage need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.

   81.    Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.

   82.    However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.

   83.    This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.

   51. In Marsden v Winch [2009] FamCAFC 152 the Full Court agreed with the observation of Warnick J in SPS and PLS [2008] FamCAFC 16 that the application of the rule in Rice and Asplund is closely connected with the nature and degree of change sought to the earlier order.

   52. As the Full Court recently observed in DL & W [2012] FamCAFC 5:

   67.    The legislation itself now expressly directs judicial officers to have regard to the potential impact of proceedings on the welfare of children. As the Full Court pointed out in Miller & Harrington (2008) FLC 93-383, the provisions of 69ZN of the Act, which prescribes “principles for conducting child-related proceedings”, apply to a hearing in whichRice and Asplund is invoked. Subsection 69ZN(3) provides (our emphasis):

   “The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.”

   68.    There are, of course, cases where it is necessary, in the interests of the child, for a court to revisit “final orders”, whether made by consent or following a defended hearing. As Evatt CJ said in Zabaneh and Zabaneh [1986] FamCA 18; (Fogarty and Renaud JJ agreeing):

   “The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.”

   69.    ……theRice and Asplund  authorities were reviewed in SPS and PLS, where Warnick J recognised that the purposes that can be served by the “rule” differ depending upon the stage of the proceedings at which it is sought to be applied. For example, in the event it is addressed as a preliminary matter it is clearly more effective in discouraging “endless litigation” than if it is applied at the conclusion of the hearing.

   70.    Warnick J observed (at 87,451) that “at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’”. His Honour also recognised that “the application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”. We respectfully adopt those observations, with the latter being of particular importance in the determination of this appeal.

   71.    Warnick J’s views were also endorsed by the Full Court in Marsden v Winch, where Bryant CJ, Finn and Cronin JJ went on to say:

   “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” inRice & Asplund and as Warnick J 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 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.”

   72.    Their Honours continued:

   “55.  Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule inRice and Asplund to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.

   56.    In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. ...”

   73.    The Full Court then described a two step process to be followed when theRice and Asplund “rule” is invoked. Their Honours said:

   “58. ...there is a requirement:

   (1) for a prima facie case of changed circumstances to have been established; and

   (2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.””

The hearing

1. Counsel for the mother relied on 3 grounds to overcome the Rice and Asplund “rule”:

   (a)The mother’s earlier psychological problems, and in particular her obsessive-compulsive disorder have substantially abated;

   (b)The alcohol abuse problem she previously exhibited is no more; and

   (c)The 22 December, 2010 orders were substantially based on the contents of Dr M’s family report which had short-term recommendations.

Mother’s depression, anxiety and O.C.D.

1. It is common ground that the mother has had a troubled personal history including suffering from depression, anxiety and a diagnosed obsessive compulsive disorder, and that she has some history of alcohol abuse.  In the father’s affidavit filed and sworn 24 June, 2013 (“the first affidavit”) that runs for 151 paragraphs and 26 pages (excluding annexures), he said at paragraphs 22 and 23 the following:

   “To the best of my knowledge and belief, the Mother is not in good health.  The Mother was diagnosed with OCD in November 2005, soon after X was born.  The OCD has been diagnosed by the Mother’s psychiatrist, Dr S, as being significant and the symptoms interfere with the Mother’s daily living to the point where she is unable to care for herself properly without the support of carers.  The primary symptoms of the Mother’s condition are her obsession with white dust (or plaster dust) and her fear of touching people as she believes they may be contaminated.  Her illness is debilitating and has resulted in regular attendances by the Mother upon her psychiatrist and also regular lengthy admissions to hospital for treatment.

   In addition to the debilitating OCD, the Mother has had problems with alcohol abuse.  As well as the combination of her psychological issues and the alcohol abuse, the Mother has become violent and aggressive.”

2. He also said at paragraph 57 that the mother was obsessed with white dust or “plaster dust” and fear of touching people as she believed that they might be contaminated.  At paragraph 58 he said that she ended up living in almost isolation: she was unable to leave the house and relied heavily on him or her family to do everything for her.

3. I note further in the first affidavit he said the following at paragraph 61:

   “The Mother has spent time in various medical centres, including the (omitted) Clinic and the (omitted) Psychiatric Unit and the Crisis Assessment Team has also been actively involved in the Mother’s care since she was diagnosed with OCD.”

4. The father detailed in his first affidavit a brief history of the current orders. The father says that on 1 July, 2010 the mother filed for parenting orders and the application was returnable on 19 October before the then Federal Magistrate Burchardt. On that day procedural orders were made to appoint an Independent Children’s Lawyer and interim orders were made for the mother to spend time with X every Saturday from 10.00 am to 1.00 pm supervised by the mother’s sister, Ms M.

5. The matter was before the court again on 9 November, 2010 when procedural orders were made for a family report and for a final hearing on 22 December, 2010, for both parenting and property matters.  At the final hearing all parties were represented and the parties settled the parenting matter by way of final consent orders.  I note in the first affidavit at page 7, the father says the following:

   “55. The Court also had the benefit of the Family Report that was Ordered on 9 November 2010 and released to the Court and the relevant parties before the hearing date on 22 December 2010.  The Family Report was detailed and comprehensive, and written by Dr M from Mr V.”

6. At page 26 of the first affidavit under the heading “No material change of circumstances since the last court Order” the father says the following at paragraph 147:

   “…I had grave concerns of the Mother spending unsupervised time with X, with the severe impact her OCD has on her ability to parent, her abuse of alcohol and showing no commitment by not attending every contact visit with X.  These three issues were the main issues that were raised by myself and also pointed out by the Family Report Writer.  The Mother has never demonstrated in the past or present that she understands the needs of X and what is in the best interest for X.  I am still very concerned about the Mother’s psychological state of mind, her OCD and her abuse of alcoholism…”

7. Counsel for the mother relied upon the assessment of the mother at paragraph 32, page 12 of the family report by Dr M dated 20 December, 2010 (which I note was available to the parties when they made their final orders in this matter) which said as follows:

   “It should be noted that after discussion with Dr S, her treating psychiatrist, he reported that whilst Ms Peast is in fact better than she was in the past when he was treating her intensely, namely between two and four years ago, or thereabouts, he maintains that she still has significant symptoms, and these symptoms interfere with her daily living.  He stated that her OCD is pretty severe and she has lived almost in isolation over the last three years or so; and even now, he stated that essentially she does not have much capacity to do much of anything by herself; that he does not think she has the capacity to look after X on her own at the moment because she is heavily reliant on her family, like she was heavily reliant on Mr Peast in the past; and he doubts she would even be able to travel from A to B to see or collect X on her own; and thus his comments in his letter were based on the assumption that she would be supported by a family member, as he maintains that this is still necessary for her at the moment; and he maintains that his comment about unsupervised time being appropriate was said in the context that he assumed a family member would be with her in any case, and he does not think she would ever pose a physical danger to X…”

8. I am aware that this section of the report was also referred to at paragraph 142 in the father’s affidavit sworn and filed 24 June, 2013.

9. The mother’s Initiating Application was listed in the duty list on 3 July 2013 before Judge O’Dwyer.  His Honour made orders which provided the following:

   “1. That the mother attend upon an independent psychiatrist as agreed between the parties for assessment and report on her Obsessive Compulsive Disorder (“OCD”) and the impact of such condition upon her parenting capacity, and it is requested that Victoria Legal Aid provide funding to the mother to obtain such report.

   2. That the mother file an affidavit from her treating Psychiatrist Mr S as to his history of treating the mother, and current treatment and condition if any within 21 days.

   3. That for the purposes of obtaining the report provided for in paragraph 1 hereof the independent psychiatrist be provided with the following:

   (a) Copy of Dr M dated 20 December 2010.

   (b) The affidavit contemplated by Dr S in paragraph 2 hereof.

   (c) Copies of any medical material produced pursuant to subpoena in relation to the mother OCD or any treatment for alcohol misuse.

   4. That the matter be otherwise adjourned to an interim hearing on 27 November 2013 for determination of the preliminary Rice and Asplund point.

   5. That the costs of Father reserved.

   6. Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.”

10. Subsequently, the mother’s solicitors filed two affidavits annexing reports, one by Dr S, the mother’s treating psychiatrist that was sworn and filed on 26 November, 2013 and the second by a Dr G, consultant psychiatrist that was sworn on 11 December, 2013 and filed 12 December, 2013. 

11. The affidavit of Dr S annexed a brief report which was dated 3 August, 2013 which says at page 2 the following:

    “SUBSEQUENT PROGRESS

    I have not seen Ms Peast at my practice since 4 November 2010 although I have maintained occasional contact with her over the telephone.  I talked to her on five or six occasions over the six month period after that last consultation when she described a gradual but significant further improvement in her OCD symptoms.  In late March 2011 she ceased medication treatment with Paroxetine (Aropax) and has remained off this medication ever since.  On 10 May 2011 I discussed the issue with her over the telephone when she described continuing improvement in both mood and OCD.

    Since that time I have talked to her over the telephone on three occasions – 12 December 2011, 24 January 2012 and 4 July 2013.  On each occasion she has acknowledged that her symptoms of both depression and OCD have improved and now allow her to live a more normal life.  She states that she is capable of maintaining a relationship with her partner Mr P and that her interactions with her daughter X are enjoyable and positive for both parties.  I have been unable to see Ms Peast to confirm this directly but I have no reason to doubt her statements. 

    In this context it appears that Ms Peast has improved significantly over the past two to three years without any active treatment.  She continues to take no medications and has received no psychological treatments of any type since my last consultation with her on 4 November 2010.”

12. Although the report writer was not required for cross-examination, I found the report of Dr S of limited use given that he has not seen the mother at his practice since the orders were made in 2010 but has simply had a number of telephone conversations with her, the last being over 5 months ago.  This is not a thorough and detailed current assessment. 

13. The affidavit of Dr G annexed a report dated 25 October, 2013 that ran to 12 pages.  In page 3 of that report under the heading of “Presenting Condition” he says the following:

    “When asked the reason for her attendance, Ms Peast said, “It’s because I’ve had an illness of OCD [obsessive-compulsive disorder] and my ex-husband thinks I am very ill … now, I am really good … I still have OCD but it doesn’t affect my life … I still don’t like things, like public toilets, but I don’t have anxiety about items and many people don’t like things like public toilets anyway … my biggest thing was plaster and door handles, and that wasn’t normal, but now there is no problem.”

14. He then went on to say at the same page, the following:

    “When asked about intrusive thoughts about contamination or other issues, she said that she was not experiencing such thoughts.  Nor was she engaging in checking or other repetitive behaviours, as an attempt to reduce any such thinking.”

15. He noted at page 4 that the mother was not attending a psychiatrist, a psychologist or counsellor and she was not being prescribed medications by her general practitioner.  He also had the following quote:

    “She was interested in most activities and, “there is a little bit of anxiety sometimes when I go to new places, but it doesn’t stop me … over the last two years I have deliberately done things to make myself anxious … new situations … so that I keep learning to cope”.

16. At page 9 of the report the doctor said as follows:

    “CONCLUSIONS

    Ms Peast is a 37-year-old woman who describes an approximately five-year history of severe psychiatric illness, marked by obsessive-compulsive disorder, anxiety and depression, and a period of alcohol abuse.

    …

    Ms Peast’s illness over approximately five years was severe, relapsing, and requiring numerous and intensive treatments and interventions. 

    Ms Peast reports to this examiner, and to her previous treating psychiatrist, that she eventually was able to overcome her residual symptoms with self-management skills developed during her illness.

    She now reports that she is reasonably well despite intermittent anxiety, and not requiring any counselling or medications.

    At interview, Ms Peast presents as a present and plausible historian, who denies any current psychiatric symptomatology.”

    …

    “There is no evidence of psychiatric illness at interview.”

17. At page 10 of the report the doctor goes on to say the following:

    “Taking into account that this examiner can only accept the available history at face value, and given the overall history, whilst there must be some concerns regarding the possibility that Ms Peast was presenting a favourable image of herself because of concerns about the outcomes of the assessment, and even deliberately attempting to cover up and minimise any ongoing symptomatology, it is possible that an almost complete remission of her illnesses had occurred…

    This examiner notes the family report, dated 20^th December 2010, from Dr M, and recognises that the recommendations made at that time occurred in the context of significant residual symptomology and the negative findings at examination…

    …If one takes at face value Ms Peast’s reports about her current condition, and taking into account Dr S’s comments, there does not appear to be an absolute contraindication, from a psychiatric perspective, to a gradually increasing amount of contact with her daughter, notwithstanding the above concerns.

    Finally, it must be noted that more often than not, obsessive-compulsive disorder is a chronic and relapsing condition.  Therefore, leaving aside the issue of whether or not there are in reality any significant current psychiatric symptoms, there is a significant possibility of relapse in the future…

    However, given the severe and prolonged symptomology from which she suffered for a number of years, up until only two or three years ago, it would be advisable that Ms Peast be under the regular observational care of a treating psychiatrist such as Dr S…

    The latter strategy is recommended also, in the context of the knowledge that there will inevitably be further stressors in Ms Peast’s life, and the psychiatric illness from which she has suffered can be trigged by stressors.”

18. The author, Dr G was not required for cross-examination.  He was an unchallenged expert witness and in the circumstances, I put significant weight on the contents of the report about the current state of the mother’s depression, anxiety and obsessive-compulsive disorder. I am satisfied that this evidence establishes a prima facie case of changed circumstances, as required by Marsden & Winch [2009] Fam CAFC 152 and [2010] 42 Fam LR.

Allegations of alcohol abuse

1. I note in the first affidavit the father said at paragraph 67:

   “…Due to her alcohol abuse, the Mother was admitted to the (omitted) Clinic on 28 January 2009 when the Crisis Assessment Team became involved due to her alcohol dependency and placed her in the clinic to undergo a detoxification program.  But the Mother discharged herself as she could not follow the detox program.”

2. At paragraph 33 of the first affidavit, the father detailed the following:

   “After reconciling with the Mother in April 2008, nothing really changed: the Mother’s behaviour did not change, she was just as obsessive and affected by her OCD in not being able to cope with everyday living skills and her abuse of alcohol increased.  Alcohol made the Mother’s behaviour more intolerable, abusive and unbearable – she was self-medicating, she was always drunk and was becoming increasingly aggressively and violent.  The combination of her OCD and alcohol abuse made her behaviour impossible to live with or be around.  She would throw everything out including things that belonged to X, such as toys, clothes, televisions sets because she thought that everything was dirty or had white dust on it.  The Mother would call me at work all the time telling me to come home because she cannot cope with X.  I did not want to live like that anymore, and I didn’t want X to live like that either.”

3. In relation to the issue of alcohol abuse the mother’s lawyer also relied on Dr G’s report, where at page 7 he had a sub-heading “Alcohol & Other Substances” which detailed the following:

   “Ms Peast denied any previous drug or alcohol problems.

   Upon further questioning, she said that she might drink two or three glasses of wine once per week, if going out for dinner.  If she was attending a special function or watching an important football match on the television, she might have a little more, up to a maximum of four glasses per week.

   She said, “When I was 18 to 20 or 21, I would go out and I would have been drunk sometimes but it wasn’t a big problem … there was a little period when I first got sick [psychiatrically], when I had a drink if I got anxiety … a six-pack of beer maybe three days per week … when my husband was home I knew I could sleep in … it lasted on and off over six months…”

4. It was surprising that the report referred to the mother denying any previous drug or alcohol problems and then subsequently discussing them as detailed in the above quote.  This is a confused issue.  The mother’s affidavit material was silent on this alcohol abuse topic.  Given that she argued that there are now changed circumstances in relation to her past alcohol abuse, I found a brief reference to that in Dr G’s report to be inadequate, without detailed affidavit material from at least the mother and probably others. 

5. Counsel for the father argued that this was a continuing problem and it was the mother’s obligation to show the court that she does not have an alcohol abuse problem now.  I agree that the burden of proof on a prima facie basis rests with the mother given she alleges there are changed circumstances and that alcohol abuse is not an ongoing problem.  She did not provide detailed evidence that could assist the court.

6. I noted that in the father’s affidavit filed 10 December, 2013 he detailed the following recent contact he had with the mother at changeovers for X’s time with her on the following dates:

   a)13 July, 2013;

   b)27 July, 2013;

   c)10 August, 2013;

   d)24 August, 2013;

   e)7 September, 2013;

   f)21 September, 2013;

   g)5 October, 2013;

   h)19 October, 2013;

   i)2 November, 2013;

   j)16 November, 2013; and

   k)30 November, 2013,

   and notwithstanding all of this contact with the mother, at no stage does he say in his material that she smelt of alcohol or she was alcohol affected, or drunk. 

7. Moreover, he does not say in his material that X complained to him at any stage that during the periods of time with the mother, that the mother was alcohol affected or drunk.

8. However, overall my view in relation to this topic is that I am not satisfied that the mother has made out a prima facie case that she no longer regularly abuses alcohol.  The initial burden was with her and she has not discharged it, given the silence of her affidavits and brief report by Dr G on this topic.

Final orders based on the family report

1. The mother’s lawyers referred to paragraphs 67 and 68 at page 21 of the family report which say:

   “It should be understood that these recommendations are necessarily short term ones, with all time remaining supervised, because I believe there needs to be a cautious approach to contact with a gradual build up in time, until Ms Peast is formerly assessed psychiatrically and psychologically; until she has shown her commitment to spending time with X by attending all contact visits at the Ordered times and at the Ordered place, except of course in unforeseen circumstances and until she has shown that she does not have a dependence upon alcohol by providing regular screens.

   It is expected that more longer-term recommendations will be possible in an updated report, once the writer has further information in the form of a psychiatric assessment report, and a psychological assessment report on Ms Peast, along with evidence of clear screens; and once she has been able to read the subpoenaed material.”

2. The mother’s lawyer in her submissions claimed that the orders made in December, 2010 were largely based on the recommendations and contents of the family report which referred to “short term” recommendations and more longer term recommendations will be possible in an updated report following a further psychiatric assessment. She argued that the very style and nature of the orders were only short term, and it is quite reasonable for the mother to bring these current proceedings in all the circumstances.

1. Counsel for the father submitted that the orders go well beyond the family report and if the orders said “supervised time for evermore” he would agree with the mother’s proposition, but they do not.  He said for example that order 4(c) goes well beyond the family report writer’s recommendation that it provides for X to have unsupervised time with the mother.

2. Moreover I note that there was no recommendation in the family report in relation to parental responsibility and yet the parties made such an order, and the parenting orders were expressed to be final (not “until further order”) and no orders were made in terms of paragraph 63 for psychiatric and psychological assessments of the mother as soon as possible, and paragraph 64 for random alcohol screens for 6 months.  

3. In all the circumstances whilst the family report was available to the parties when they negotiated the final orders made 22 December, 2010, those orders do not replicate that report’s recommendations to the extent that it could be said these should only be treated as interim or short term orders.

Conclusion

1. The final step in the two step test is whether the change of circumstances are sufficient to justify embarking on a hearing.  In the case of DL & W [2012] FLC 93-496 at paragraph 74 the Full Court referred to the following:

   “48.  In SPS v PLS, Warnick J warned against focussing too closely on the character of particular events relied upon to establish a change in circumstances. He said the following at page 311:

   The essential question, however, is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting the events in context in the broader circumstances pertaining to the arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.”

2. Under the current orders, the mother has no role at all in terms of exercising parental responsibility and is limited to short daytime periods with her daughter.  It is my view that Dr G in his report establishes that the mother probably now has the psychological and mental health to be involved in the parental responsibility issues that was denied to her in the past.  When one looks at the Family Law Act 1975 (“the Act”) I note section 61C(1) where it is stated that each of the parents of a child who is not eighteen has parental responsibility for the child, as a matter of course subject to any order of this court. Moreover section 61DA(1) of the Act says as follows:

   “When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”

3. In my view those two sections of the Act indicate the importance of both parents being involved in the exercise of parental responsibility, where possible. It appears from the expert’s report that the mother now has that potential capacity and in light of that and the fact that the child is aged only eight, there are a number of years ahead of her where both parents could be involved, where possible, in major decisions that affect her welfare.

4. The father complains that history shows that there has not been regular time with the child and the mother, but I do not accept that in relation to the recent history as detailed in his own second affidavit sworn 10 December, 2013, and where he also says at page 7 at the bottom:

   “…It seems that X is becoming more comfortable with Ms Peast but continues to say that the visits are too long and she becomes tired...”

5. I was told from the bar table by his Counsel that X could have overnight time with her mother in the presence of an adult at the maternal grandmother’s home in the future.  However, I was not told how long this would continue, how long the informal supervision would last or whether it would be extended to mid-week periods.

6. A very relevant and significant issue in this case is the effect of further litigation on the child and whether it is in her best interests for litigation to occur.  Neither party dealt with this topic in any significant direct way, although I note the father talks of X being upset from time to time with the nature and style of time with her mother.  These allegations are concerning. 

7. The evidence of Dr G indicates the mother is now in a stable place in terms of her mental and emotional past ill health. Assuming she maintains that and continues to see her treating psychiatrist, then the negatives of further litigation are outweighed by the possibility of the mother being involved in the issue of parental responsibility and X potentially spending more time with her mother on weekends, mid-week, holidays and at Christmas over the years as the child grows older, (see section 65DAA of the Act). This will provide the child and mother with a greater opportunity to have a closer and more loving relationship that otherwise would not be fully available to them under the current orders.

8. In all the circumstances, it is in my opinion in the best interests of X that the mother’s application continues and the interim application of the father is therefore dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date:  31 January 2014