Phillips and Walker

[2016] FamCA 719

FAMILY COURT OF AUSTRALIA

PHILLIPS & WALKER [2016] FamCA 719

FAMILY LAW – INTERIM PARENTING – procedural – rule in Rice & Asplund – principle that child litigation cannot go on indefinitely – when permissible to have further proceedings – family report ordered preparatory to determination of Rice & Asplund issue.

APPLICANT: Ms Phillips

RESPONDENT: Mr Walker

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4576 of 2010

DATE DELIVERED: 12 August 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Phillips

SOLICITOR FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr Walker

SOLICITOR FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kent-Hughes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday & Associates

Orders

IT IS DIRECTED THAT

1.The s 67ZW response from the Department of Health and Human Services dated 11 April 2016 (2 pages) be copied and a copy be handed to the mother, the father and to counsel for the independent children’s lawyer.

IT IS ORDERED THAT:

2.This matter be referred to Registrar Field to be fixed for hearing as a threshold issue following the release of the family report provided for in paragraph 3 of this Order.

3.Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared.  For that purpose the parties and child B born … 2009 (“the child” “B”) attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.  Such report to be commenced not before 14 November 2016 and be released by not later than 28 November 2016 AND IT IS NOTED that there are 3 previous family reports on the Court filed dated 14 September 2010, 26 April 2013 and 21 February 2014.

4.The family report deal with the following matters:-

a)      any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s 60CC of the Family Law Act;

c)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

d)      an observation of each of the parties with the child (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the child);

e)      whether it is in the child’s benefit for there to be further proceedings concerning his parenting arrangements:

f)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the child’s best interest to the greatest extent possible.

5.For the avoidance of doubt the family consultant be and is hereby authorised to have reference to:-

a)      all documents filed in these proceedings;

b)      any documents produced on subpoenae and released for inspection by all parties;

c)      any documents provided to him/her by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;

d)      any documents or things referred to in this Order.

6.The Order made on 9 June 2016 currently authorising the release of the documents produced by C Health in compliance with a subpoena issued on behalf of the father be and is hereby discharged with the effect that documents are not released for inspection pursuant to that Order. The documents produced by C Health be released for inspection by the independent children’s lawyer only at this stage.

7.I reserve for consideration by myself or another judicial officer whether the documents from C Health should be released for inspection by other parties following inspection by the independent children’s lawyer.

8.In the event that the independent children’s lawyer proposes to submit that the documents from C Health not be inspected by any other party, he provide each other party to the proceedings with notice of that decision and a summary of contentions of fact and law.

IT IS DIRECTED:

9.That my reasons for decision be transcribed and when settled a copy be placed on the Court file and provided to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Phillips & Walker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4576 of 2010

Ms Phillips

Applicant

And

Mr Walker

Respondent

And
Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me from the Senior Registrar’s list. The proceedings concern B who is seven years old. He was the subject of final orders made by consent on 5 August 2014 pursuant to which the parents have shared parental responsibility for the child and the child resides, or spends time, with the father for five out of 14 nights or, as the father says, seven out of 14 days. The focus today is how to advance toward determination the Rice & Asplund[1] issue which is raised by the father and the independent children’s lawyer as the basis for the mother’s new application for parenting orders being dismissed on the basis that there is no or insufficient new circumstances to justify a re-litigation of parenting proceedings so soon after a final resolution of earlier proceedings.

   [1] (1979) FLC 90-725

2. On 5 August 2014 the Order described above was made, by consent, between the parents. There was an independent children’s lawyer in the proceedings.

3. The mother’s application initiating proceedings was filed on 30 December 2015 and it seeks a raft of orders which would significantly alter the parenting arrangements provided for in the final Order obtained in 2014. The father’s response is to seek a dismissal of that application and no other parenting orders.

4. On 25 July 2016 the mother filed an application in a case. She purports to seek interim orders, but, in doing so, seeks 19 orders, some of which have a number of sub-paragraphs. I think it is fair to say that it is not, in any sense, an interim application. It is iterative of the final orders which she seeks to be imposed now rather than awaiting a final hearing.

5. The father’s response to that was filed on 10 August 2016 and was simply that the mother’s application in a case be dismissed.

6. Today the mother and father appear self-represented. The independent children’s lawyer is Robert Halliday and he was the independent children’s lawyer in the proceedings in 2014. Mr Kent-Hughes appears on his behalf. Unfortunately, Mr Kent-Hughes has not brought much direction to the matter. He says that the independent children’s lawyer supports an application by the self-represented father pursuant to the rule in Rice & Asplund. When I asked him what he relied upon by way of material, his response was, “Well, everything on the parties’ material”.

7. I took a brief adjournment. In that time the parties were handed the s 67Z of the Family Law Act 1975 (Cth) response received from the Department of Health and Human Services and dated 11 April 2016. Even though that reached the Federal Circuit Court on or about 11 April 2016, it had not been given to the parents or to the independent children’s lawyer. That is unfortunate, but they have now had an opportunity to consider its contents.

8. Essentially, the response says that, pursuant to Departmental standards, it was not considered that the child was a child in need of care or protection and that the Department would not pursue notifications which it received in 2016. The last paragraph of the letter reads:

   It is determined that the information provided does not establish immediate or significant risk of harm for the child. The allegations reported by [Ms Phillips] in the Notice of Risk are historic, there is no new information with respect to the child being exposed to significant harm. In light of the information gathered, it is determined that there is no further role for Child Protection.

   That, of course, is not dispositive of the question which is before this Court.

9. I also had handed to the parents and to counsel for the independent children’s lawyer the relatively recent decision of the Full Court of this Court in Walter & Walter [2016] FamCAFC 56 (“Walter”) in which the Full Court considered the proper treatment of the rule in Rice & Asplund and what a court may take into account.

10. I pause here to confirm that the parent’s, although self-represented, appeared to have a good grasp of the rule in Rice & Asplund.

11. In Rice & Asplund at 78,905 Evatt CJ said the following about the court re-visiting parenting arrangements which have been ordered by the court with or without a fully contested hearing:

    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, 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 (passage quoted in Hayman & Hayman (1976) FLC 90-140, at 75,680). 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.

    And at 78,906, “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”.

12. The description of her Honour’s reasoning as “a rule” is to make short reference, and to give expression, to the principle that there must be an end to litigation in relation to children lest litigation become trial by ordeal and continue until a child is 18 years old. It is a manifestation of the best interests principle that, amongst other things, a final order should herald in a reasonable period of stability in parenting arrangements and relief from disruption, conflict, stress and expense of litigation for parents and, through them, the children. However, the rule also contemplates circumstances in which further litigation is desirable and not inappropriate.

13. The Full Court observed in Marsden & Winch [2009] FamCAFC 152:

    [50]. Nevertheless, there are significant changes [to family life] 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. 

    At [58] the Full Court went on to formulate the enquiry as first, whether a prima facie case of changed circumstances has been established and, second, whether that case is a sufficient change of circumstances to justify embarking on a new hearing.

    Finally, as Warnick J observed in SPS & PLS (2008) FLC 93-363 at 82,451: “The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”. In this case the change sought by the mother is significant.

14. The decision in Walter bears careful consideration by the parents and the independent children’s lawyer. However, for ease of reference I would refer them to the reasons of his Honour Justice Murphy who, in agreeing with Ainslie-Wallace J, with whom May J agreed, made clear that a determination of the rule in Rice & Asplund can be applied at various points in the proceedings, including at the outset of the proceedings, at the end and somewhere in between. His Honour, at [105] says:

    … As authority demands, the first question [in any new parenting case] is, are “the interests of the child[ren], in not being the subject of further litigation [is] more powerfully in the child[ren]’s welfare than it would be to allow the application to continue”. The second question, namely what new parenting orders are in the children’s best interests, falls to be answered only if the first question is answered in the negative.

15. Consideration of the first question — whether the best interests of the child are more powerfully served by there being no further litigation than they would be by permitting litigation to be re-agitated — involves itself two further inquiries. One is when do you apply the rule in Rice & Asplund and, second, in the exercise of the Court’s discretion, what evidence should be taken into account to decide what is, essentially, a preliminary issue? Helpfully, at [110]–[112], his Honour says the following:

    [110]. The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.

    [111]. In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.[2]

    [112]. However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.

    [2] See for example, Simmons and Anor & Kingsley (2014) FLC 93-581 and the numerous authorities cited in that decision.

16. I have asked Mr Kent-Hughes for the independent children’s lawyer and each of the parents for any submissions they have in relation to preparation of a family report preparatory to the court deciding the Rice & Asplund issue. One of the matters that I would ask the family consultant to turn their mind to is whether there is a need for the litigation to be reopened. Of course, that view will not be dispositive but the court would be assisted by the family consultant’s observations.

17. Mr Kent-Hughes supported a family report at this point for the purpose of examining the preliminary issue. Both parents, I would have to say to their credit, expressed some concern about exposing the child to yet another family report.

18. Notably, the child is a child with special needs. He has high-functioning autism. Both parents appear to have fixed views.

19. This case has all of the potentially negative and destructive elements of a high-conflict case. The mere fact that the conflict has not ceased since final orders were made by consent in 2014 may well turn out to be the further circumstance upon which the mother gets an entitlement to reopen the litigation, I do not know.

20. I do know that I do not have time to read all of the material to which the parties refer today, even on the preliminary issue, to make a determination of the Rice & Asplund issue. My concern is, even if I did, I would probably still want the assistance of a family report to how significant the alterations sought by the mother will be to the child. The court also needs to be sure that the extant order of 5 August 2014 does all that needs to be done to protect the child from psychological harm and from being exposed to abuse or neglect.

21. High parental conflict of an unrelenting nature is extremely harmful for children. It is child abuse.

22. I am satisfied that a family report is necessary to look at how the current arrangements meet the child’s needs and how each parent contributes and reacts to the negative behaviour each perceives in the other. It is appropriate for me to consider a social science report on the family before considering whether the application of the father for the mother’s application to be dismissed.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett J delivered on 12 August 2016.

Legal Associate:

Date: 26 August 2016