RIGG&STILLWELL
[2015] FCCA 2501
•16 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RIGG & STILLWELL | [2015] FCCA 2501 |
| Catchwords: FAMILY LAW – Parenting – future care arrangements – amendment of application and evidence – notice of amendment and orders sought – consideration of the bases for permitting or refusing an amendment to relief sought – adjournment sought to enable mother to respond to the father’s case – due process – adjournment granted. |
| Legislation: Family Law Act 1975, ss.10H, 10J, 60B, 60CA, 60CC, 60CC(2A), 65DAA(5) |
| U & U (2002) 211 CLR 238 Goode & Goode (2006) FLC 93-286 Other Articles Cited: Lyons, Alicia, “Recasting the landscape of interlocutory applications: Aon Risk Services Australia Ltd v Australian National University” [2010] SydLawRw 24; (2010) 32(3) Sydney Law Review 549 |
| Applicant: | MR RIGG |
| Respondent: | MS STILLWELL |
| File Number: | AYC 324 of 2011 |
| Judgment of: | Judge Harman |
| Hearing dates: | 15, 16 July 2015 |
| Date of Last Submission: | 16 July 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 16 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Longworth |
| Solicitors for the Applicant: | Robb & Associates Solicitors |
| Counsel for the Respondent: | Ms Dart |
| Solicitors for the Respondent: | Nevin Lenne & Gross |
| Solicitors for the Independent Children’s Lawyer: | Ms Wearne of Legal Aid NSW Sydney Central Family Law |
ORDERS
Vacate the trial dates allocated to these proceedings 15-17 July 2015.
The matter is listed for hearing estimate 5 days commencing 28 September 2015 at Albury.
In the event that either party should wish to file and serve any updating or amending Affidavit material that material shall be filed and served no later than close of business 11 September 2015.
Pending further Order, I discharge Orders 3 and 4 of the Orders made 14 August 2014.
Pending further Order, the child X born (omitted) 2011 shall spend time with her father each week from such time Wednesday as the father should collect X from pre-school until the commencement of pre-school Friday following.
Each of the parties shall do all acts and things necessary to authorise the collection of X for the above periods by the father, Ms A, Ms P or Ms C, the above persons to be authorised to collect X in the event that the father is unable to do so personally.
In addition to the above time X shall spend time with her father from 3pm Friday 17 July 2015 until 4pm Saturday 18 July 2015 with the father to arrange X’s collection from the mother’s home and return to the mother’s home by one of the above people.
Each parent shall be at liberty to telephone and speak with X between 6pm and 6.30pm on each day that X is not and has not been in their care and provided that:
(a)The parent wishing to speak with X shall initiate the phone call to such number as is or has been provided by the other parent;
(b)Each parent shall ensure the phone service the number for which they have provided to the other is switched on, charged, in credit and in a mobile service area between 6pm and 6.30pm each day;
(c)Each parent shall be entitled to speak with X with privacy and without interruption or distraction.
The Independent Children’s Lawyer shall be at liberty to provide to any child psychologist consulted by the parents (as Dr B has recommended they should do) with a copy of the report of Dr B and each parent shall authorise any such child psychologist as the parties may consult with to speak with the Independent Children’s Lawyer should the Independent Children’s Lawyer desire to do so.
Leave is granted to parties and to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
Leave is granted to the legal representatives for the parties and the Independent Children’s Lawyer to photocopy material produced on subpoena and pursuant to section 69ZW of the Family Law Act 1975 subject to the following terms and conditions:
(a)The material shall not be further copied;
(b)The copies made shall be returned to the Registry for secure destruction at the conclusion of the proceedings;
(c)The photocopies produced shall remain the property of the Court and in the event that the retainer of the solicitors for the parties should be terminated for any reason, the photocopied material shall be immediately returned to the Court.
IT IS NOTED the various restraints contained in Orders made 14 August 2014 and 28 November 2014 continue to operate.
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 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.
IT IS NOTED that publication of this judgment under the pseudonym Rigg & Stillwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
AYC 324 of 2011
| MR RIGG |
Applicant
And
| MS STILLWELL |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to future care arrangements for a young child X born (omitted) 2011.
Regrettably for X, conflict and turmoil has been circumjacent her short life.
The parties to these proceedings are X’s parents being her father, Mr Rigg, who is the Applicant and her mother, Ms Stillwell, who is the Respondent.
These proceedings are listed before the Court for a three day trial scheduled to have commenced yesterday, 15 July 2015, and to have been completed tomorrow 17 July 2015. The matter has some urgency and it is on that basis that the matter is conducted between the Parramatta and Albury Registries by video link with Counsel for the father and Independent Children’s Lawyer appearing before the Court in person at Parramatta and the mother, instructing attorneys and Counsel for the mother appearing by video link from Albury where the parties are otherwise resident.
The matter has not proceeded with respect to the substantive, judiciable controversy between the parties. Some significant time (and there is no criticism raised of the parties or their Counsel for that) has been devoted to the determination of an Application for adjournment. As a consequence thereof the reality is that the matter will be adjourned on some basis, whether in its totality or on a part-heard basis, there being agreement that the hearing could not complete within three days. Certainly, with the time that has now been lost, the matter could not possibly be completed even if the original estimate of three days remained accurate. As a consequence, the matter also requires some attention as to time arrangements for X with each of her parents during the adjournment. I propose to deal with both of those Applications.
I will deal firstly with the Application for adjournment. In doing so, one needs to have some regard to the history of litigation between the parties.
Past proceedings and orders
There is vast and significant factual dispute between these parties which will require significant forensic examination and which has, already, been the subject of some substantial preparation in the form of Affidavits by the parties together with an extensive and detailed report by a child and family psychiatrist, Dr B. That evidence has not been considered in its totality and I will shortly identify the portions of the material that have been considered for the purpose of this determination.
Proceedings between these parents were first commenced on 24 August 2011 at which time an Application Initiating Proceedings was filed by the father. That Application was filed at a time when X was approximately seven months of age. Those proceedings took some time to reach a final conclusion, although that final conclusion was on a consensual basis.
Orders were made on 30 August 2013, which concluded the first tranche of proceedings. Those Orders provided that the parents would have equal shared parental responsibility, that X would live with her mother and would spend time with her father.
The Order for X’s time with her father commenced with the phrase “that unless otherwise agreed between the parties”. That the parents would “agree” was an exercise in optimism not known since British Prime Minister Chamberlain stepped onto the tarmac at Heston Aerodrome upon his return from Munich waving a piece of paper with the Chancellor’s signature and promising “peace in our time”. The same consequence has been realised in that optimism has evaporated.
Thankfully, the attorneys for the parties had the good sense to provide within the Order the time that would occur absent agreement, that being from Sunday morning until Monday afternoon and from Tuesday afternoon until Wednesday morning in each week, together with a period of a few hours each Thursday afternoon and periods for special events and for special occasions. A number of other Orders were made, although they need not be considered at this point, save the arrangement for changeover, which was to occur to or from the child’s child care, kindergarten or school wherever possible and otherwise, with the parties attending at each other’s residences.
Within a relatively short space of time following the making of those final Orders fresh proceedings came before the Court being this tranche of proceedings.
These proceedings are commenced by an Initiating Application filed on 15 July 2014. That Application seeks Orders on both a final and interim basis. I will turn to the relief sought and as is sought at this hearing shortly.
The Application came before the Court on short notice. On 14 August 2014 an interim hearing occurred. As a consequence thereof an ex tempore Judgment, since settled and published, was delivered. That interim hearing resulted in an interim variation of the final Orders.
The Orders made 14 August 2014 provided for each parent to have parental responsibility of X while she was in their care and for the father to spend time with X each Sunday from 10:00am until 5:00pm and each Thursday from 2:00pm until 6:00pm, subject to terms and conditions, namely, that all time spent by the father was to occur in the presence and under the supervision of one or other of named persons and that the father was, in the company of one or other of those persons, to collect X from her day care centre or the mother’s home at the commencement and conclusion of each period of time.
A number of injunctive Orders were also made on that occasion including:
a)Restraints upon either party denigrating the other, discussing the proceedings or the issues raised in the proceedings with the child and requiring that each parent use their best endeavours to ensure that no other person – at least as regards family members or friends - did so;
b)Restraints upon the parties questioning the child about her time with the other parent or questioning the child in relation to alleged sexual assault of the child by any person;
c)Restraint upon the child being taken to see or her attending upon any counsellor, psychologist or other person for the purpose of being interviewed or being provided with therapy in relation to the allegations raised in these proceedings, save as might be directed by the Independent Children’s Lawyer or as might be undertaken by a Police officer or officer of the Department of Family Community Services in the course of their duties. Additional Orders were made which I need not address at present.
Since those Orders were made 14 August, 2014 further injunctive relief has been granted with the consent of the parties, including Orders restraining the physical inspection of the child upon return to the mother’s care that having been raised as an issue by the Part 15 report prepared in the matter.
Importantly the Application Initiating Proceedings filed by the father 15 July 2014 sought relief on a final basis in the following terms:
a)That X live with the father as follows:
i)Each Sunday from 10:00am until 10:30am Wednesday;
ii)During the school term holidays for New South Wales from 10:00am on the first Sunday of the holidays until 10:00am Friday, (presumably following); and
iii)For the long summer vacation commencing 2014 for one week commencing the first Sunday after New Year’s Day.
A Response to that Application was filed by the mother on 13 August 2014, the day prior to interim hearing. It sought Orders on a final basis in the following terms:
a)That the Orders made by the Federal Circuit Court of Australia at Albury 30 August 2013, be discharged;
b)The mother have sole parental responsibility for the child;
c)The child live with the mother;
d)The child spend no time with the father.
The “battle lines” as they might be called, were thus drawn, and the parameters for the dispute clearly set by the relief sought.
On the basis of that controversy, the matter has progressed with such expedition as the Court can accommodate with present resources. The matter was listed for Trial on the one year anniversary of its commencement a not insubstantial feat with present delays.
During the course of the matter an Independent Children’s Lawyer was appointed (or reappointed) and a Part 15 report obtained. The Part 15 report, as indicated, is extensive. It does not contain clear and specific recommendations. That is no criticism of the report on any level. The report canvasses the various issues, specifically and importantly, the allegations of abuse that were raised by the mother and which precipitated the father initiating proceedings.
On the first day of hearing, 15 July 2015, it was placed upon the record by Counsel for the mother and upon her instructions that the mother no longer sought to agitate that there was a risk to the child from the father on the basis of any suggested past sexual abuse of the child. That is a matter which significantly changes, at least at first blush, the parameters of the dispute.
Amendment of applications and evidence
It is upon that conceded position, no doubt, that the mother has filed, on 24 June 2015, an Amended Response. The mother’s Amended Response proposes that the parents have equal shared parental responsibility, that X live with the mother and spend time with her father in a graduating regime, but building up, once X commences school in 2016, to time occurring each alternate weekend from Friday to Sunday together with a period from Thursday to Friday in the intervening week. In addition, the mother has proposed periods of time during school holidays, special events and the like and with a further increase in time to occur, particularly with respect to school holidays, from term 3 in 2016.
Prior to the Trial and on 3 July 2015 an Amended Initiating Application was filed by the father. It varied the relief that had been sought by the father to that time. By his Amended Application the father seeks that he have sole parental responsibility for X. On the basis that the father had previously not sought any Order with respect to parental responsibility one might infer that he had, to that point, sought to continue the Order for equal shared parental responsibility previously made by consent.
The Amended Application seeks that X live with the father - not for specified periods of time, as was initially sought, but predominantly. The Amended Application seeks that X spend time with the mother through a supervised contact service and, subject to certain pre-conditions being met regarding therapy and the like, that time then commence between the mother and the child for specific periods of time as thereafter set out.
At the opening of the Trial I enquired of Counsel for the mother whether the mother was in a position to meet that case, i.e. an Application to reverse the predominant care of the child. After a brief adjournment and the opportunity to obtain proper instructions regarding that proposition an Application for adjournment was made by the mother.
It should also be noted that at the time that the proceedings were listed for Trial – and I do not recite these Orders to be, in any way, pernickety or critical, purely to record the reality –directions were made for the filing of Affidavit material to be relied upon at Trial. The Applicant father was to file and serve all Affidavit material by 1 May 2015 and the Respondent mother was to file and serve all material by 5 June 2015. That is not the timeframe in which material was filed.
The Respondent mother’s material was filed 24 June 2015. The Applicant father’s material was filed on 3 July 2015. On that basis, what would appear clear – chronologically, if nothing else – is that the mother’s material was filed first – albeit that she was the Respondent – and was filed at a time when the father’s Application before the Court was for time 3 nights per week rather than for the child to live with him. The father’s Application before the Court at that point, that which formally gave notice both to the Court and to the mother as to that which would be sought, setting the parameters of the case, (as discussed by the High Court in U & U (2002) 211 CLR 238), was substantially different to that which is ultimately presented as the case that the mother is required to meet.
The father has, for the majority of time since August 2014, spent time with X in accordance with the Orders recited above, being limited non-overnight periods of time with supervision, albeit informally and provided by family members. More recently, at the beginning of July it would seem, proximate to, if not contemporaneous with, the filing by the father of his Amended Application, the parties have begun to practice non‑overnight, unsupervised time occurring between X and the father.
Material considered
In dealing with the proceedings today, both as to the adjournment of the proceedings and the issue of time to occur pending the resumption of hearing or the adjourned hearing, whichever it may be, I have had regard to the Case Outline documents filed by each of the parties and the specific portions of the parties’ material that are identified and referred therein. I have also read in its entirety, although I will refer specifically only to the portions of the report to which I am referred by Counsel, the report of Dr B.
There are also a number of Exhibits that have been tendered in the proceedings, predominantly relevant to the adjournment Application and comprising in the mother’s case:
a)Exhibit M1, correspondence from the mother’s attorneys to the father’s dated 28 June 2015; and
b)Exhibit M2, a Minute of Orders with respect to Christmas school holiday time.
Being mindful of the hearing dates that I propose to make available to these proceedings, whether part‑heard or otherwise, the Christmas holiday period will be irrelevant. The matter will be allocated hearing dates at the end of September 2015.
In the father’s case, I have also received a number of Exhibits comprising:
a)Exhibit F1, correspondence from the father’s attorneys to the mother’s dated 2 July 2015;
b)Exhibit F2, a portion of correspondence from the solicitors for the father to the solicitors for the mother dated 26 June 2015;
c)Exhibit F3, certain notes relating to a notification made by the report writer, Dr B, to the Department of Family and Community Services;
d)Exhibit F4, a document from a general practitioner treating the father dated 18 September 2012; and,
e)Exhibit F5, a Minute of proposed parenting Orders to operate during the period of adjournment.
What is clear from the above is that the relief that each of the parties seeks at this hearing (or any subsequent or continued hearing) is dramatically different to that which they had sought at the time that:
a)The pleadings closed, (if I might adopt that terminology, as used within the Federal Court Rules 2011);
b)Hearing dates were allocated, those dates having been fixed by Orders made 31 October 2014.
Notice of amendment
A significant issue arises, by reference to discussions and correspondence between the solicitors for the parties, as to when the mother might “first have been aware” or at least given some inkling that the father’s case would be prosecuted on the basis that his Amended Application now suggests. Perhaps the first inkling of that change or possible change, as it might more accurately be described, arises from the report of Dr B, 23 January 2015 and released to the parties by Order made 2 February 2015.
On page 18 of that report, under the heading “Current Situation”, Dr B sets out a summary of discussion with the father in the following terms, “Mr Rigg emphasised that he is relying on expert advice about the best orders to seek, depending on what my report says”.
It is unclear whether the expert advice that will be relied upon is that of his attorneys, Dr B or both. I need not canvass that further.
The report continues:
He [the father] emphasised that X has a very strong relationship with her mother and he would not like to interfere with that but at the same (sic) he is concerned that Ms Stillwell is never going to be satisfied that X is not at risk and that further allegations will come up.
At that point what would have been clear to the mother is that the father was concerned as to her “attitude” towards his being a risk to the child. The mother has, at this hearing, and it would seem in earlier correspondence, communicated clearly that she accepts that opined by the good Doctor, namely, that the evidence available does not establish that abuse has occurred nor that there is a risk of abuse occurring.
I make clear that it is not the role of the report writer to be the “trier of fact”. I do not suggest that Dr B sought to take on that role. Certainly, the evidence of Dr B, expert, competent and experienced as it is, will play a significant role in the proceedings. But the evidence of Dr B is presently untested, and it is the evidence of a witness in the proceedings not a finding of fact which binds the Court.
There is then the correspondence comprising Exhibit M1 which clearly conveys to the father the mother’s position that she no longer seeks to agitate any allegation of risk. That correspondence, forwarded by email, would have been received by the father’s attorneys on 28 June 2015 and one would think, bearing in mind the competence of the practitioners engaged in these proceedings, would have been conveyed to the father forthwith.
The relevant paragraph of Dr B’s report (on page 18) concludes:
He [being the father] basically indicated that there were two possibilities that he could envisage. The first is that Ms Stillwell accepts that she may have been wrong and she goes to see an appropriately trained counsellor. He emphasised that this would need to be somebody who was properly experienced in dealing with concerns like Ms Stillwell has held. Under those circumstances, he indicated that he thought that by the time of the hearing a week about arrangement might be best for X.
I pause to observe that the mother is engaged with a counsellor, (using that term in a broad sense and without intending that breadth of description to be pejorative of the practitioner concerned). That practitioner has provided some evidence, although the Court is advised that there will be objection to that material, and accordingly, it has not been read or considered at this point.
Whether the mother’s engagement with this practitioner satisfies the criteria that the father has set out or not is unclear.
Dr B continues:
The second possibility arose from allegedly being told by FACS staff that he should go for full care of X. He again mentioned that he would be worried about the effect that this might have on X’s relationship with her mother. He indicated that if he gets either sets of Orders, he will easily be able to work it around X’s timetable. He said he will be attending (omitted) [the child’s preschool] three days a week in 2015 and he would continue this. Depending on his hours he may also utilise one day of day care…[He continues to discuss such arrangements].
The mother may have had some inkling, from that discussed in that particular paragraph of the report, that the potential existed for the father’s Application to be amended. However, it would not, I am satisfied, have conveyed to her the reality that the change in Application was to be forthcoming. Indeed, that discussed in the report of Dr B would suggest that if the mother took the action and made the concession which is referred to within the paragraph, then such an Application, (i.e. for X to pass to live predominantly with her father), would not be forthcoming. The mother was not disabused of that understanding, should it have been the understanding formed and it would seem the most rational belief for the mother to have formed – until a subsequent date namely, 3 July 2015 being when the Amended Application was filed.
There is some contention on the evidence that communications, oral discussions between the solicitors for the mother and father and the Independent Children’s Lawyer, occurred on a date in March 2015. Application had been made to adduce oral evidence with respect to that conversation and to tender a file note arising therefrom. Ultimately, that Application was not pressed and thankfully so. It may have then been necessary for all three attorneys involved in that discussion to give evidence. It may have led to a circumstance whereby the recollections of the attorneys involved were not identical, in which case, findings of credit might have become relevant. It would also, potentially, have canvassed settlement discussion, in which case there would have been significant issue as to the admissibility of those communications by reference to section 131 of the Evidence Act 1995. Those issues need not be traversed further. The matter did not proceed on that basis and, as I have indicated, thankfully so.
The correspondence that is tendered, particularly Exhibits F1 and F2, signal a possible variation of relief sought by the father at a date earlier than the filing of the Amended Application. Exhibit F1, a letter dated 2 July 2015, the day prior to filing and service of the Amended Application, refers to discussions that occurred between attorneys in late June 2015 at or at the conclusion of a Family Dispute Resolution conference. It is suggested that a discussion occurred between the solicitors for the father and the Independent Children’s Lawyer “about amending our client’s Initiating Application to reflect a live with application”. It is then suggested that:
The Independent Children’s Lawyer expressed the view that she thought that was premature and that your client should be given the opportunity to spend some time in counselling with Ms G, and our client should consider his options after Ms G has filed an affidavit which sets out her view.
The Independent Children’s Lawyer was also of the view that it would exacerbate your client’s anxiety issues and may impact on her capacity to deal with the issues in her counselling with Ms G.
You were called over to the discussion and in the writer’s presence the Independent Children’s Lawyer said to you “It will not be of any surprise to you that you may be facing a live with application depending upon the outcome of the evidence from Ms G”. Your response was “that it would not”.
The correspondence of 28 June 2015, Exhibit M1, commences with this proposition:
Whilst you have previously foreshadowed that your client’s application may [emphasis added] be amended, we note that this has not yet occurred in circumstances where the final hearing is imminent. We hereby put you on notice that in the event that such Amended Application is filed such that our client is prejudiced in not being able to answer the case in a timely fashion, we will be seeking an adjournment of the proceedings.
The correspondence then refers to evidence being put on by Ms G, the counsellor referred to above. It otherwise indicates:
As per our client’s Trial affidavit now filed, we are instructed our client is relocating to alternative rental accommodation. Pending the Final Hearing and further Orders being made, we are instructed to propose that handover takes place at McDonalds (omitted). Could you please obtain instructions and advise.
The correspondence concludes:
Finally, we are instructed our client most certainly agrees to time progressing between your client and X to unsupervised…
That correspondence is forwarded following the completion, swearing, filing and service of the mother’s case. At that point in time, the Application which the mother was aware of in preparation of her case, (being the Initiating Application, 15 July 2014), sought that the child live in what is, in effect, a shared care arrangement between the parties.
The correspondence comprising Exhibit F2, a letter, 26 June 2015 and to which the correspondence, Exhibit M1, was in reply, had indicated in its final paragraph:
We confirm a conversation the writer had with you and the Independent Children’s Lawyer in relation to this matter on or about 30 March 2015. We note that it was agreed at that time that there would be no objection to the father amending his application at a latter stage to a “live with” application, noting the contents of Dr B’s report.
That evidence is not challenged and for the reasons given above, thankfully so.
Even if such a conversation had occurred, and I accept that it may well have, what it refers to is the fact that the mother would not be objecting to the amendment of an Application. The mother has not, in fact, raised such an objection. Such an objection alluded to by a rhetorical question posed by the bench. However, there is no Application to refuse leave to amend or to strike out the Amended Application. Accordingly, the mother’s attorneys have been true to their word. No objection has been raised.
I propose to have regard to certain case law regarding Applications to amend and the bases for such relief being granted or refused. Case law regarding Applications for leave to amend is relevant as the impact upon due process and capacity to meet a case joining a cause of action late in the day and adjournment are addressed therein.
The mother’s attorneys have also been true to their word in that conveyed in Exhibit M1. That correspondence made clear that in the event that an Amended Application was filed after the date of that correspondence, the mother’s case having been closed, that objection would be taken.
Dr B
I will address the evidence of Dr B in some detail. That is not to suggest that Dr B’s evidence is, in any way for present purposes, elevated or placed in a position different to the evidence of the parties. This is not “trial by expert”. Whilst there are significant issues raised by Dr B in relation to X which warrant and require expeditious investigation and determination of these proceedings, his evidence remains untested.
Counsel for the father has specifically taken the Court to portions of the report that suggest concerns held by Dr B, (leaving aside for one moment the reality that the report concludes at page 51, subparagraph (m), with Dr B clearly identifying that he has made a notification to the Department which might, by and of itself, signal some concern held by the good doctor).
The record of the notification made by the intake officer at Helpline, Exhibit F3, clearly identifies Dr B as the maker of the report. He suggests that on the basis that his report had been completed and was about to be released and as the hearing of the proceedings was not until July, some months later, that he was “worried about time between now and then with X”. The basis of those concerns is suggested on the second page of that tendered document, being:
“Little insight” re reporting and the impact this has on X”. “No indication mother wants to change”. Worried about what will happen if X is in her care for the next 6 months, what will happen with X”. “Obsession” – like behaviour re Ms Stillwell as reporting. Would believe that X visiting P/A with having a lot more (discussion if X was to not be placed with Ms Stillwell).
Further information was then provided to enable and facilitate communication with those relevant to the case. Whilst concerns held by Dr B are summarised in that note, they are spoken to more voluminously in the report.
At page 44 Dr B sets out:
Bearing in mind as well her [being the mother] reported levels of anxiety between late 2012 and 2014 which are most detailed in the notes of Dr H, I formed the view that X has had separation anxiety and oppositional defiant problems from an early age which are probably related to a lack of structure and indecisive parenting in her mother’s home but are not evident in the more regulated and consistent environments of her father’s home or day care. In my view Ms Stillwell is in urgent need of parenting counselling from a child psychologist and a more effective treatment of her anxiety from a clinical psychologist.
The father does not accept that the mother has really taken up that which Dr B suggests is necessary and important. At page 46 Dr B expressed the following:
Mr Rigg alleges that she, had mentioned some such suspicions concerning her brother to him when X was a baby, [they being concerns with sexual abuse, note added] which she denies, but given the extent of her over-anxious problems as well as a specific longstanding fear that X needs to be protected from being molested and having made a specific enquiry to her mother, I think it is likely that she did make some mention of these fears to him even if she does not recall it now. Her concerns about Mr Rigg are currently focused on him having molested X and that he is continuing to touch her inappropriately despite supervision.
On the same page the following is set out:
Ms Stillwell seems to be quite reluctant to support X’s relationship with her father. She has raised a number of further allegations of sexual abuse occurring during the supervised contact visits and I also note that she has withheld X from day care because of concern that the father may attend there and that she has expressed a concern that Mr Rigg might kill X and himself. Unless there is a change of heart, I think there is a significant risk of ongoing allegations and interruptions in X’s time with her father.
Again, on the same page the following is set out:
Ms Stillwell appears to be an extremely committed parent to the point that in my view it is likely that she is being so overprotective towards her daughter that her daughter has developed sleep and behaviour problems and it is quite possible that the same attitude as well as Ms Stillwell’s insecurities has led to unfounded allegations that X has been molested.
At page 48 the following is suggested in relation to the mother:
She does not appear to have benefited from antidepressants in the past, and this is not a pattern of anxiety or depression which typically responds well to medications. The most effective treatment is cognitive behaviour therapy administered by a clinical psychologist, although it is possible that periods of more marked depression might benefit from antidepressant medication.
This is relied upon by the father as a criticism of the mother and an ongoing concern for X’s wellbeing as a consequence of the mother failing to take any action to address that recommendation.
At page 49 the following is relied upon in the father’s case in opposition to adjournment:
In the event that circumstances change such that Mr Rigg’s application is for X to live with him it is likely that the transition would occur rapidly, which would be a major change for X. She has not stayed overnight at her father’s home for quite a long time now although she was doing that for about 16 months previously but only one overnight. However I think that she is a relatively resilient child and that she would settle into living with her father reasonably quickly.
The paragraph continues:
I do not think that there should be a moratorium on her spending time with her mother under these circumstances, but I think it would probably be best and less disruptive in terms of her not having to be burdened with her mother’s emotions, if twice weekly visits were to occur in a children’s contact centre before whatever transition to the ultimate contact orders for the mother come into force.
That portion of the report is also relied upon by the father in support of his proposal for time and the concerns that would arise in relation to different time structures during any adjournment of the proceedings and on whatever basis.
At page 50 Dr B has offered:
There seems to be a significant prior history of a high degree of vigilance about X [i.e. by the mother] being sexually abused which rose to such heights that Ms Stillwell volunteered to have counselling about it 18 months before these allegations arose. It seems surprising that while in early 2013 she thought that her anxiety was so high that she needed counselling about it yet, now she is behaving as if she is utterly convinced that those fears have been realised. It raises the possibility that this may be a belief which she is not able to manage.
The above is suggested by the father’s Counsel to have some relevance both to adjournment and interim time arrangements, particularly as the level of anxiety that would be generated in the mother by any time arrangement must be considered in the context of that reported by Dr B and having regard to the mother’s present position (i.e. that she no longer asserts any allegation of risk).
Finally, the father relies upon the following passage at page 51:
Although there is relatively little research on the subject of shared physical care, there are emerging findings from Australia and overseas that such arrangements are best determined by the capacity of parents to exercise maturity, to manage conflict between them appropriately, and to move beyond self-centred decision-making in order to adequately embrace the changing developmental needs of their children. Indicators of significant problems in these areas include tension-ridden changeovers, exposure to expressed acrimony, ongoing denigration of one parent by the other, and insidious embroilment of the children in supporting the opposing views of each parent, upon whom they continue to depend.
That portion of the evidence is particularly relied upon by the father as regards the structure of time arrangements during any adjournment.
The adjournment application
In turning specifically to the Application for adjournment the main basis upon which the Application is made by the mother is the submission that she would be denied due process if forced to commence the hearing forthwith. That is submitted to arise as the amendment of the father’s Application came into effect, (leaving aside any amendment that may have been “signalled as a possibility” and focusing upon when it became a reality), upon service of the Application on 3 July 2015 and after her case was closed. It is submitted that this significantly disadvantages the mother.
The mother submits, as does the Independent Children’s Lawyer, that attempts have been made to hastily obtain further information and evidence through subpoena or otherwise. Those steps have been taken expeditiously upon the father’s Amended Application becoming a reality (and acknowledging that he had previously “alluded to” or “flagged as possible” an Amended Application). Both the mother and the Independent Children’s Lawyer indicate that there is further evidence and further inquiry that they would seek to pursue. Thus, the amendment and its timing is of some relevance, indeed fundamental relevance, to the issue of adjournment.
Section 42 of the Federal Circuit Court of Australia Act 1999 compels the Court to operate informally. It provides that the Court “…must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted”. Certainly adjournment of the proceedings will see the proceedings protracted. However, adjournment of the proceedings, on at least a part-heard basis, is inevitable. The parties agreed at the commencement of the case that the matter would require at least five days of hearing and could not be contained within the three days that were allocated even if the matter had commenced at 10:00am on the first day.
The legislative mandate of this Court, to act without undue formality, does not obviate against the Court’s obligation to afford due process. Whether formal or informal, proceedings heard by this Court involve judicial process. What the Court does affects the lives of adults and children. Everything that is done must be done with care and abundant due process. Informality cannot impact upon the provision of due process. Informality might relate to how proceedings are practically conducted but the process must be fundamentally infused with due process.
As regards amendment, rule 7.01 of the Federal Circuit Court Rules 2001 provides:
(1) At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document…in the way and on the conditions the Court or the Registrar thinks fit.
That is the only provision within the Federal Circuit Court Rules 2001 dealing with amendment. It does not expressly provide, as do rules of some other Courts, that leave be obtained before amendment. The rule infers that such leave might be required, whether retrospectively or before the amendment is made. The rule certainly suggests that the Court might have some active role to play in amendment. It is unclear and unspecified by the rule itself how that might be so.
The Family Law Rules 2004 (which I make clear do not apply to these proceedings but to which I refer by way of comparison or analogy), provide at rule 11.10:
(1)A party who has filed an application or response may amend the application or response:
(a) for a case started by an Initiating Application (Family Law):
(i) at any time before the procedural hearing at which the case is allocated the first day before the Judge.
That rule, having been amended following commencement of the Less Adversarial Trial process, mirrors to a large extent that which had previously applied in the Family Law Rules 2004 - that amendment is not permitted without the Court’s leave after a date for hearing is fixed. That requirement is consistent with the common law prohibition upon such amendment and, again, based in due process. Once a date is fixed to determine the controversy the ambit of the controversy should not be expanded by joinder of issue or at least not without leave.
The Federal Court Rules 2011 at rule 16.51 provide:
(1) A party may amend a pleading once, at any time before the pleadings close, without the leave of the Court.
On the basis that an Application and Response might be considered for present purposes “pleadings” that would permit an amendment of an Application without the Court’s leave prior to the filing of a Response.
The Civil Procedure Act 2005, applicable to proceedings in New South Wales, provides at sections 64 and 58 for the amendment of pleadings. By section 64 of the Act the Court may, at any stage, whether by Application of a party or its own motion, Order that a document be amended or leave granted for it to be so.
What is also clear is the general rule, as established by authorities such as Cropper & Smith (1884) 26 Ch D 700, that a party should be entitled to an amendment even at a late stage in the trial process so as “to permit the real issues in dispute between the parties to be finally resolved”.
Spigelman CJ in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 stated as regards the amendment of pleadings and case management:
In this State [New South Wales] J L Holdings must now be understood as operating subject to the statutory duty imposed upon the Courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court in mandatory terms – “must seek” – to give effect to the overriding purpose – to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” – when exercising any power under the Act or Rules. That duty constitutes a significant qualification of the power to grant leave…
His Honour would appear to be suggesting that the Court might be more circumspect in the ready grant of leave, particularly at a late stage in proceedings, if the primary purpose is to be achieved namely “...to facilitate the just, quick and cheap resolution of real issues in the proceedings”. That would certainly be consistent with the High Court’s decision in Queensland v J L Holdings Pty Ltd [1997] HCA 1.
Amendment is addressed in Ketteman v Hansel Properties Ltd [1987] A.C 189, wherein it was expressed that a party is entitled to reasonably expect leave, based on the “legitimate expectation that the trial will determine the issues one way or another”.
The determination of “real issues” as they are presently presented and as they have crystalized since the filing of the Amended Application on 3 July 2015 requires a balance between that “reasonable expectation” on the father’s part and due process being afforded to both parties and the Independent Children’s Lawyer.
I must also consider the effective and efficient use of the Court’s resources by ensuring that all judiciable controversies are tried at the same time and completely and with due process afforded to all. That is also consistent with section 14 of the Federal Circuit Court of Australia Act 1999.
I am satisfied that, had Application been made to refuse the father leave to amend or to conduct his case based on the Amended Application, that the father would be deprived of due process. That sought in the Amended Application is advanced by the father as being in this child’s best interests. It is the child’s best interests that require determination and the paramountcy of the child’s best interests would require that some latitude, some flexibility, be demonstrated in accommodating the changing tides of those interests and the parties’ Applications to address those best interests.
Similarly, however, I am satisfied that the mother would be denied due process if called upon not so much to present her case, but to meet the father’s case, in the present circumstance. The mother filed her material before the Applicant father. Why that is so or how that came to be is unclear. One can only infer that it has arisen on the basis that the father’s material had not been put on and as directions for the filing of Trial Affidavits provided for sequential filing the Respondent wished to ensure her compliance.
The mother may have been concerned to not be placed in a position whereby she was criticised for having failed to file material, particularly in circumstances where, on the face of the case as it stood at that point in time, significant issues were to be raised by her for Trial. Had allegations of sexual abuse been pressed by the mother, the mother way well have perceived, and with some validity, that criticism might flow to her if her case was not filed prior to the Trial dates and had she not been ready to proceed. On that basis, the mother should not be seen to have, as it were, “jumped the gun”. The mother and her attorney have been cautious, diligent and appropriate. The mother waited for the Applicant’s evidence and when the date for its filing had passed she prepared and filed her case based on the Application she was facing, being an Application for time with the father not for the child to live with the father.
As the Full Court was clear in Tate & Tate (No.3) (2003) FLC 93-138, directions for the filing of material, whilst often referred to as “directions”, are in fact, Orders of the Court. The Court expects compliance. The mother has done that which was required of her. Doing so has, however, led to the circumstance whereby she, as the Respondent, has filed her case, speaking to the Orders and relief that she seeks and responding to the relief that she was aware the Applicant sought. The mother’s evidence was filed and closed prior to the amendment made by the father which amendment substantially changed the case he presents.
A practice has certainly developed whereby parties seek to add issues or substantially change the relief sought by them, including, immediately prior to Trial by seeking relief in a Case Outline document That practice, if it has not already been sufficiently discouraged, should be ceased forthwith. A Case Outline document is nothing more than an aide memoire. The basis by which a party formally advises all other parties and the Court of the relief that they seek, and the only appropriate way of doing so, is through the filing of an Amended Application or Response.
The High Court has had a deal to say on the issue of case management and amendment and adjournment. The erudite discussion that arises from that case law is worthy of some consideration.
In Haset Sali v SPC Ltd [1993] HCA 47, the High Court had this to say.
In Maxwell v. Keun ((1) (1928) 1 KB 645, at pp.650, 657, 658.), the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate Courts on many occasions.
Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action.
However, both propositions were formulated when Court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.
In determining whether to grant an adjournment, the judge of a busy Court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the Court as well as the interests of the parties.
As Deane J pointed out in Squire v. Rogers ((4)[1979]FCA 48;(1979) 27 ALR 330, at p.337.) this “may require knowledge of the working of the listing system of the particular Court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing”. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
That passage has some resonance in this case.
It is submitted in the father’s case that he is, as it were, at “the end of his tether” as regards his capacity to fund legal representation and with the real possibility that he may become self-represented if the matter is adjourned, whether part heard or otherwise. That must be set, however, against the Court’s resources, the resources of the parties and the Independent Children’s Lawyer and the interests of justice.
Justice must not only be done it must be seen to be done. Justice must be done by both parties. As Eleanor Roosevelt had stated, “justice cannot be for one side alone, it must be for both”. In parenting proceedings such as these justice must also be for non-parties such as the Independent Children’s Lawyer and for this child.
This case clearly will require adjournment. It cannot complete in the time allocated. Accordingly, the concern as to the Court’s resources is somewhat, but not completely, tempered. The matter will go over to a circuit and will occupy the totality of one week of circuit sitting. That is inconsistent with the protocol of this Court as regards circuit sittings, whereby matters that require more than two days should be listed in a major registry. It is also a reality which would place the matter squarely within the protocol between this Court and the Family Court of Australia, such as might suggest transfer.
I am conscious that the matter has a significant history before this Court. Transfer has not been raised as an Application by either party or by the Independent Children’s Lawyer. I do not propose to transfer the matter of the Court’s own motion. It could not be suggested that transfer has been considered on the first return date of the proceedings as the Federal Circuit Court Rules 2001 require. That does not mean that matters should not or cannot be transferred if it becomes apparent after the first return date that they cannot be contained within four days of hearing or if the issues become more complex such as would then fall within the protocol regarding transfers between the Courts.
I am satisfied that the matter should remain within this Court. It will disadvantage other litigants but that would be so irrespective of where the matter is adjourned to. The matter requires hearing, substantial hearing time, and other matters will be delayed or not reached. That is simply a reality.
The Federal Circuit Court of Australia is, as described in the above passage, a busy Court. However, the interests of this child require expeditious determination. They will have it.
The best interests of the child require that both parties (and the Independent Children’s Lawyer) be in a position to fully and properly advance their case so that the Trial can be, as described by Dr Harry Browne:
A fair trial…in which the rules of evidence are honoured, the accused has competent counsel, and the judge enforces the proper courtroom procedures - a trial in which every assumption can be challenged.
Even though the mother is no longer seeking to agitate a case alleging unacceptable risk as regards a relationship between the child and the father there are still allegations of risk. It is now the father that agitates risk. The evidence previously relied upon by the mother will be the subject of significant forensic scrutiny, albeit from a very different perspective.
What is clear is that there would be injustice to the mother if the proceedings were not adjourned. The effect of the amendment, albeit that it may have been “signalled as possible” prior to 3 July 2015, is that the mother is now, having filed all of her material based upon the case she knew she was required to answer, required to answer a very different case. That is so even though it is possible, if not probable, that the mother may have been put on notice that the Application she was to meet “may” be amended or even if she had been led to expect that an amendment “might” be made at some point in time.
At the time that the mother’s case was prepared the father’s Application had not been amended nor had it been made clear that it would, as a matter of certainty, be amended. On that basis the “goalposts” have been well and truly moved. Not even a goal kicker with the sublime talent of Jeremy Cameron could be expected to kick a goal when, having taken a mark in the goal square, the goal posts are not slightly moved but shifted to the other end of the field.
The effect of the father’s Application is that the father now seeks that a child who has lived with her mother since the separation of these parties (or predominantly so), would be removed from her mother’s care. To force the mother to run that case with 7 working days’ notice of substantial amendment, essentially a fresh joinder of issue, when for the preceding period of nearly 12 months it was not the case she was called upon to answer would, I am satisfied by and of itself, represent an injustice to the mother. In being so it would also be contrary to the child’s best interests which are not advanced by denying due process to a parent.
In both preparing for and conducting the trial the mother is entitled to be fully aware of the father’s case, the relief sought and evidence relied upon. Those fundamental propositions are the foundation of all rules of disclosure and case management and, indeed, due process. The mother is entitled to be able to fully instruct her attorneys and take advice and to make all necessary inquiries to respond to the father’s Application absent which there is injustice.
That is particularly so within the context of that portion of Dr B’s report to which I have referred on page 18, that the father was “contemplating” different propositions. Thus, the mother was not made clearly aware that change would or even could come just that it might and the first time that possibility became a reality was 3 July 2015.
Fundamental to each of the propositions which the father indicated to Dr B “he was contemplating” was the father’s concern that “the child has a very strong relationship with the mother”, (although it is now inherent in the father’s case, and, indeed, some of the comment offered by Dr B, that it may be that the very nature of that relationship is now perceived as “the problem”). The father’s clearest statement to Dr B was that he did not want to “interfere” in that relationship between mother and child. That adds to the concern as to the injustice that might flow to the mother if she is now required to conduct her case as the Respondent, having filed her material first and having filed it in the vacuum of certainty of amendment by the father, is taken by surprise.
I am also conscious of the comments of Lawrence LJ in Maxwell v. Keun (1928) 1 KB 645, (approved of by the High Court in Haset Sali v SPC Ltd) that:
I cannot myself think that the penalty for an error of judgment is that the plaintiff should not have his case properly tried.
The above may seem inapplicable to the circumstances of this case and I certainly do not suggest that the father has made any “mistake” in the conduct of his case or the amendment of his Application. However, the father’s position is that he now realises that the only way by which he can, from his perspective, ensure that the child’s best interests are met is to prosecute an Application for the child to live predominantly with him. On that basis I am satisfied that he should not be deprived of the opportunity for that case to be tried. However, it is an issue of when it is to be tried and heard. I could not be satisfied that it could safely proceed as regards the mother at this time.
I am conscious of the dicta of the High Court in Aon Risk Services & Australian National University [2009] HCA 27, and particularly that of Gummow, Hayne, Crennan, Kiefel and Bell JJ at paragraph 111 to 113, which I incorporate herein:
111. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
112. A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
113. In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
I am also conscious of the dicta of Heydon J (in agreement with the plurality) in Aon Risk Services & Australian National University at paragraph 133, which I incorporate herein:
133. In relation to Queensland v J L Holdings Pty Ltd, it is sufficient to hold that, at least in jurisdictions having rules similar to rr 21 and 502, that case has ceased to be of authority. It is necessary to apply the Rules without any preconceptions derived from what was said in that case. There is a common opinion – it is far from universal, but it is common – within the judiciary and the legal profession that Queensland v J L Holdings Pty Ltd, whether it has been correctly understood or not, has had a damaging influence on the conduct of litigation. One judge who held that opinion was Bryson J. In a passage which merits preservation from the oblivion of unreported judgments, he pointed out one undesirable consequence of the way Queensland v J L Holdings Pty Ltd has been understood:
“In view of the state of the law governing allowance of amendments, amendment applications brought forward before the trial began were treated with uncomplaining supine liberality, notwithstanding that they sometimes showed that problems had been addressed years after they should have been. I do not think that the law requires the discretion to allow amendments to be exercised in entire innocence of understanding the obvious impact of forbearance and liberality on the behaviour of litigants, who have diminished incentive to do their thinking in due time and to tell the court and their opponents their full and true positions. When forbearance and liberality are extended to a delinquent the burden of inconvenience and lost opportunities for preparation tends to fall heavily and without adequate repair on parties who have not been delinquent. A relative disadvantage is imposed on those who proceed methodically and in due time; their interest in procedural justice should claim at least as much consideration as the interests of the applicant for a late amendment who does not have to look far for the creator of his difficulty. It is even conceivable that a litigant might deliberately pursue a course which will impose disadvantage on an opponent who has to reconsider his ground and change course in the midst of a contest”.
The effect of the dicta of the plurality is:
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced.
I have selected that portion of the decision as it is particularly apt to these proceedings. I am not critical of the father for the amendment of his case. On the evidence that he has referred to and based on the interpretation of that evidence as reflected by that advanced through the skeletal outline of submissions within the Case Outline of the father’s Counsel, it is a decision that he has laboured over. Indeed, he had signalled it as a possibility to Dr B in January as at least one of three propositions that he advanced as possible and subject to his receiving expert advice.
Having laboured upon that decision, and appropriately so, it being a most significant decision within the terms of the father’s statements to Dr B, the father has made the determination that the amendment must be made. However, it is the timing of that amendment which concerns me. I am not overly critical as to its timing but there must be a concern that arises in the circumstances. The mother’s case was already on. The mother is then, as it were – although I wholeheartedly accept that it was not the intent – “ambushed”.
In relation to adjournment I am conscious of the dicta of Gleeson CJ in State Pollution Control Commission v Australian Iron & Steel Pty Limited (1992) 29 NSWLR 487:
The courts of this State [and at a Federal level] are overloaded with business, and their workload has, over a number of years, increased at a greater rate than any increase of the resources made available to them [indeed, for this Court it has been a significant reduction]. The inevitable consequence has been delay. This, in turn, has brought an increasing responsibility on the part of the judges to have regard, in controlling their lists and cases that come before them, to the interests of the community, and of litigants in cases awaiting hearing, and not merely the concerns of the parties in the instant case. The days have gone when courts will automatically grant an adjournment of a case simply because both parties consent to that course, [I make clear they do not in this case] or when a decision to grant or refuse an adjournment sought by one party is made solely by reference to the question whether the other party can be adequately be compensated in costs.
What flows therefrom are two significant issues.
Firstly, there is no way that the mother could possibly be adequately compensated by costs. Nor could the father be adequately compensated by costs for that matter if the matter were adjourned. I am not satisfied that costs could flow in the circumstances in which this adjournment Application arises.
Secondly, and whilst I wholeheartedly endorse and adopt the erudite discussion of Gleeson CJ above, I am conscious of the far more ancient wisdom, as it were, of Lord Atkin in Ras Behari Lal v The King-Emperor (1933) 50 TLR 1 as quoted recently with approval by the High Court in Smith & Western Australia [2014] HCA 3 [emphasis added]:
Finality is a good thing but justice is better.
It is impossible for me to be satisfied, in the circumstances of this case as described above, that justice could be done or perceived to be done if the mother were forced on. What I am asked to do is to embark upon a hearing of a cause that would have the effect, if the father is successful, of removing a child from the mother’s care forthwith, imposing severe restraint upon her relationship with the child, at least for a period of time, before the mother then proceeds with a limited relationship with the child compared to that which she has previously had. That is not to suggest that the father cannot or should not be successful. The evidence is not yet heard and the case far from determined. Nor do I suggest that the mother should not be successful in her resistance of that position. It is simply that the possible consequences to the mother are severe.
Whilst the evidence raises concerns (which are challenged and not yet tested) they are not of such magnitude or urgency as to suggest the child’s best interests will be prejudiced by a modest delay of 6-8 weeks. The concerns raised, even when raised by a noted expert, are not proven fact. A report is not the judgement of the Court merely a part of the evidence.
The material contained within the report of Dr B does raise issues of concern and that compels the expeditious listing of the matter. However, the Court is asked to take a serious step. The more serious the step, by reference to section 140 of the Evidence Act 1995 and Briginshaw v Briginshaw [1938] HCA 34, the more serious step should be the consideration of the evidence and the application of due process. That is not to suggest that due process would ever likely be cast aside in favour of suggested compelling urgency. It should never be cast aside. It is which defines the judicial process and embodies the rule of law.
In circumstances whereby the mother has prepared her case and filed it, certainly with the spectre of amendment present but without its actuality having come to be, it would be, I am satisfied, a grave injustice to the mother and contrary to the child’s best interests.
As the High Court made clear in HasetSali v SPC Ltd it is only in extraordinary circumstances that an adjournment would be refused where the practical effect of the refusal would be to terminate proceedings in a fashion adverse to the Applicant for adjournment and in a fashion that could not otherwise be addressed or remedied.
Determination of the proceedings in circumstances whereby the mother together with the Independent Children’s Lawyer assert that they cannot properly meet the case without further inquiry and the opportunity to place further evidence before the Court would obviate against anything other than the adjournment of the proceedings. It would be possible for those enquiries to be made by each of the mother and the Independent Children’s Lawyer if the case commenced in the time which is left of the present listing - a little over a day – and was then adjourned part-heard. However, I am conscious of contraindicative matters.
Firstly, the mother may still be disadvantaged. Indeed, the father’s Counsel may have some difficulty if the mother then makes further inquiry, seeks to introduce further evidence which the father may then have some difficulty in answering or the Independent Children’s Lawyer, through their enquiry, wishes to pursue a line of cross-examination, which requires that the father be recalled or something of that nature.
Secondly, I am conscious that if the matter is going to take five days or thereabouts, it would be preferable that this occur in one block rather than to commence, have a day and a portion of the day of evidence, with the possibility for further events arising during adjournment, witnesses recalled, cross-examination reopened or resumed on different lines and potentially with greater expense in relation to transcripts and the like.
Finally, as regards the adjournment, I am most thankful to Alicia Lyons for an article created by her and published in the Sydney University Law Review “Recasting the landscape of interlocutory applications: Aon Risk Services Australia Limited v Australian National University [2010] SydLawRw 24; (2010) 32(3) Sydney Law Review 549.
I make clear that as that article has not been specifically raised with the parties I refer to it not as evidence but to adopt its erudite summary of the case law which applied prior to and following the High Court’s decision in Aon Risk Services & Australian National University and dealing with amendment of pleadings and adjournment. It would be disingenuous of me to adopt the case law that is referred to by the learned author without giving some credit for its collation and discussion. It is on that basis alone that the article is referred to as a most helpful and excellent summary of case law on the issue.
The author refers to the decision of Hartnett & Hynes [2009] QSC 225 and dicta of Applegarth J:
A party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the object of the just and expeditious resolution of the real issues in dispute at a minimum of expense.
Rather than deny leave to amend – indeed, no such Application is raised in the proceedings – I am satisfied that the amendment is entirely appropriate and should be permitted. The case should be heard and determined on the basis of the Amended Application. But “the cost” of that as regards doing justice is adjournment.
I incorporate, commencing at page 557 of the article (footnotes excluded), the erudite summary of that which arises from a plethora of case law as to the indicative factors that would be relevant to the exercise of discretion in allowing amendment as well as incorporating, commencing at paragraph 563 (footnotes excluded), a similar discussion of that which, in the author’s well-reasoned discourse, might make the granting of leave, particularly at a late stage in proceedings, more likely:
The court indicated that matters relevant to the exercise of the judicial discretion to allow amendment include:
1. the extent of delay in seeking leave and its associated costs;
2. the point the litigation has reached: applications brought during the time set for trial or that require vacating trial dates are less likely to be granted;
3. the prejudice to the respondent if leave is granted— including the financial and emotional ‘strain’ of ongoing litigation, which even indemnity costs may not heal;
4. the prejudice to other litigants and the efficient use of court resources: that is, the court held that the ‘just’ resolution of disputes is not limited to justice between the parties, but ‘requires account to be taken of other litigants’;
5. the applicant’s explanation for the delay;
6. the ‘nature and importance’ of the amendment to the applicant; and
7. the ‘need to maintain public confidence in the judicial system’.
And:
As a result, judges have been more willing to refuse amendments— even if they would raise ‘arguable claims’ — that:
1. are brought during the hearing or would necessitate vacating the hearing;
2. would substantially increase the length, cost and complexity of proceedings, especially due to the late introduction of substantial new issues;
3. are unexplained or the result of a deliberate tactical decision; and/or
4. occur in a context of repeated and unjustified non-compliance with court orders.
However, Aon does not spell the ‘death knell’ for late amendments, as the plurality emphasised. Aon and subsequent cases have strongly affirmed that the ‘paramount purpose’ of the relevant court rules and the dispute resolution process is ‘justice’, though ‘justice’ in a reconceived form; that a judge’s powers cannot be exercised punitively; and that ‘some allowance’ must be made for ‘the complexity of matters and for changes which inevitably occur’ in litigation. Accordingly, subsequent cases indicate that a late application to amend pleadings will likely be more successful where:
1. it is made at an earlier stage of the proceedings and/or is unlikely to require vacating trial dates or substantially prolonging the hearing;
2. a reasonable explanation is given or, at least, it is impossible infer that a deliberate tactical decision was made to amend at the last minute;
3. the amendments do not raise new issues but rather prosecute or clarify existing claims, so allowing the amendment could actually save time and costs later in the proceedings;
4. the ‘nature and importance’ of the amendment means the applicant will suffer significant prejudice if refused;
5. there is no or little prejudice to the respondent which cannot be cured by costs or an adjournment;
6 the applicant has ‘burn[t] the midnight oil’ since discovering the addition; and/or
7. the applicant is unrepresented.
Of course, an amendment will also usually be allowed where it is ‘necessary’ to determine the ‘real issues’ or avoid multiple proceedings.
The corollary of the above points, the bases for permitting or refusing an amendment to relief sought, is the creation of corresponding and like considerations for adjournment if the amendment is made. In this regard and by reference to the above:
a)The amendment is made late and adjournment is made all the more likely (point 1 above);
b)No real explanation for the delay in formally amending the Application is advanced other than long, careful and deliberate consideration by the father. The formal amendment came a week or so after the parties had attended Family Dispute Resolution (as would no doubt also be advanced as the explanation for the husband’s delay in filing). I do not infer, as the above commentary addresses (at point 2), that the late amendment is a “deliberate tactical decision”. I am satisfied that the father would be denied due process and the child’s best interests not advanced if the father were denied his desired amendment and all issues not addressed at one hearing;
c)The amendments do raise and join new issues (point 3) and warrant adjournment as the mother’s case has been prepared on a different basis to that upon which the Trial will now be conducted. The father, knowing his own mind, has been able to properly prepare his case;
d)The “nature and importance” of the amendment (point 4) will, as I have found, cause prejudice to the mother and compels adjournment;
e)Prejudice to the mother cannot be cured by costs (point 5);
f)I could not describe the father as having “burnt the midnight oil” (point 4) to affect his amendment (or perhaps as Billy Bragg sang “been up all night moving the goalposts”. The father foreshadowed amendment as possible in January 2015 and it has been discussed as possible since. Amendment only became reality 3 July 2015. One does not, and cannot as a consequence of sections 10H and 10J of the Family Law Act 1975, know what transpired at Family Dispute Resolution and whether that which occurred at Family Dispute Resolution caused the possible amendment to crystallise in the father’s mind as reality. If the amendment was intended prior to Family Dispute Resolution then clearly it should have occurred before so as to allow all issues to be ventilated and “genuine effort” made at Family Dispute Resolution;
g)The Applicant is not unrepresented (point 7). He is most competently represented.
By reference to the above case law (relied upon in supporting the propositions put and addressed) I am satisfied that the Applicant should have leave to prosecute his case as he chooses being the amendment that is made on 3 July 2015. However, the concerns that I then have by reference to that opined above and which I accept and adopt, are twofold:
a)Firstly, amendment is clearly something that was contemplated by the father in January 2015. Further, based upon that set out on page 18 of Dr B’s report, the possibility of amendment would have begun to crystallise within the father’s mind by February 2015 when the report was released. I am concerned that the formal amendment, even though it may have been discussed as a possibility – something which, it is suggested, had been acknowledged would not “come as a surprise” – has been delayed until 3 July 2015.
If, for example, in February or possibly even in March 2015, well prior to the mother having prepared, settled, sworn, filed and served her material, clear notice had been given by the father of the specific Orders to be sought by him, things might be different.
b)Second, and flowing from the above, I am satisfied that in light of the time at which the amendment came into effect namely, 3 July 2015, that the Respondent would be prejudiced if the matter now commenced and the matter then adjourned. Further, the Court’s resources would not be properly used or effectively used if the matter proceeded to evidence for a day only to then be adjourned part-heard for a further hearing of 4-5 days.
In all of those circumstances I propose to grant the adjournment and to list these proceedings for Trial for five days on circuit in Albury commencing 28 September 2015.
Interim parenting orders
That leaves the issue of what time this child will spend with the father in the interim.
There are a number of proposals in that regard, in effect, four:
a)Firstly, the simplistic approach would be to discharge the interim Orders previously made on 14 August 2014. That would have the effect of restoring the final Orders that were made by consent in 2013. Those Orders provide for two separate overnight periods per week with a period of some hours on Thursday;
b)Secondly, there is the proposal contained in the Minute filed by the father, Exhibit F5;
c)Thirdly, there is the proposal of the Independent Children’s Lawyer and as largely supported if not adopted by the mother, being that set out in the Case Outline Document filed by the Independent Children’s Lawyer (albeit that the Orders would be made on an interim rather than final basis); and
d)Fourthly, a proposal, if it might be so described, arising really from a question put to Counsel for each of the parties and the Independent Children’s Lawyer, as to the utility and efficacy of the child’s attendance at child care on Wednesdays and Fridays being used as an opportunity for the father to spend time with X between those days and with the potential benefit that changeovers directly between the parties need not occur.
The more significant benefit of the last proposal might potentially be that the child would be uplifted from and returned to child care and, thus, the staff at that centre would be responsible for receiving the child at the conclusion of the father’s time. To the extent that there are concerns that the child may, from August 2014 to present or any portion of that period, have been inspected, examined or questioned immediately upon being returned to the mother’s care or to the extent that the father is concerned that allegations might be made with respect to him immediately upon return, those concerns could potentially be obviated. In the event that something did arise, they would be addressed by mandatory notifiers, being the staff at the centre.
I propose to consider all arrangements at large and to address the matter by reference to the legislative pathway.
I must commence with section 60CA of the Family Law Act 1975 which reminds the Court that, in all that is done, the child’s best interests are the paramount consideration.
I must then turn to the objects and principles in section 60B of the Act. The Court is required to ensure that children’s best interests are met by ensuring that they have the benefit of both parents having a meaningful involvement in their lives.
The mother proposes an Order for equal shared parental responsibility. Indeed, that would be the effect of discharging the present interim Orders, returning the parties to that which they had agreed – the accord they reached with each other some little time ago – albeit that the tensions and difficulties between them which have crystallised in the events of July and August 2014 were still a reality.
It is submitted by Counsel for the father as equal shared parental responsibility is conceded that the Court would not be cautious in taking the step of reintroducing significant time, to at least the level of substantial and significant time, although that is approaching a level of shared care as to which the report of Dr B, the portions of which are set out above, speak as being contraindicated by the inability of these parties to communicate or support each other.
As is submitted by Counsel for the father this is an interim determination. It is not a long-term arrangement. Thus, I am urged to not be as concerned by the caution urged by Dr B against shared care arrangements. However, leaving those issues aside – and they will need to be addressed further – meaningful involvement can be achieved on one or all of the bases proposed.
I must be concerned to ensure that any Orders made protect young X from physical or psychological harm through exposure to abuse, neglect or family violence.
On its face, there is no such risk raised or apprehended in the mother’s case. The father raises a concern as to risk, at least of an emotional nature, through the mother’s behaviours as addressed by Dr B and the evidence of the parties and which the father would urge the Court to find, albeit on a final rather than interim basis, to be abusive. Certainly, the father’s position is intended to ensure that he is able to not only interact with the child but to see that the behaviours that are complained of with respect to the mother, whether they are categorised as hypervigilance, overprotectiveness or anything else, are obviated and to the maximum extent possible. I will again return to that issue.
I am satisfied that the need for protection might more substantially favour one or other proposal but I will deal with that as part of section 60CC of the Act, the objects and principles informing their interpretation and application rather than being substantive provisions to be applied to the case in themselves.
The child has a right, created by the principles, to know and be cared for by both parents and to spend time and communicate with both parents. Both parties are proposing – and the Independent Children’s Lawyer supports – arrangements that will see that be so, irrespective of which proposal is preferred. Thus, the objects and principles can, by and large, and perhaps to greater degrees with one proposal or the other, be met by any of the four propositions above.
I must then turn to section 60CC of the Act and commence with the primary considerations being:
a)The benefit of the child having a meaningful relationship with both parents; and
b)The need to protect the child from harm, the latter being prioritised over the former by subsection (2A).
Whilst it is oft submitted that the Court cannot make findings of fact at an interim level, the Court, most assuredly, can (see, for example, paragraph 68 of Goode & Goode (2006) FLC 93-286). I am satisfied, however, that no finding of fact need be made nor would it be safe to do so. None of the evidence in this case is yet tested and there has been significant change in the manner in which each party seeks to prosecute their position.
The spectre of risk, if it might be so described, is suggested to arise from the mother’s actions in involving and exposing the child to her overprotectiveness, hypervigilance and the like. It also extends to that which Dr B has touched upon in the above portions of his evidence, the manner in which the mother “prepares” the child, or deals with the child, prior to and following time with the father. That is suggested by Dr B to be undermining of the child’s feelings of safety or confidence. Dr B suggests that it might render the child more anxious and would have the potential to interfere in the child’s relationship with the father. The latter is the least of my concerns for this determination, more so the former.
The benefit to this child of having a meaningful relationship with the father and the need to protect the child from the very behaviours that the father complains of is, I am satisfied, supportive of an arrangement whereby the child would depart into the father’s care from childcare, rather than from the mother’s home, and return to childcare, rather than to the mother’s care.
The complaint raised by the father (which will require address and testing at hearing) is that the child is inspected and treated in a fashion by the mother that would cause the child anxiety by and of itself. Those behaviours and that hypervigilance, if found to exist, would also maximise the prospect for the allegation. Again, that is not accepting those allegations as fact. It is purely the allegation raised.
The father raises with some force and validity his desire to have others present during his time to obviate against allegations. Set against that is the reality that, since the Orders were made on 14 August 2014, further allegations have arisen notwithstanding that the father has had people present with him. The presence of others, whether suggested to be supervisors or merely observers and bystanders, has not, on the evidence led by the father, obviated against those concerns. Accordingly, I am not satisfied that it would necessarily do so in the future.
This child should not be transitioned between her parents at this point. That, of itself, is an unfortunate circumstance. Every child should have the benefit of parents who are emotionally well and functioning and able to co-operate. Sadly, many do not. I do not suggest that either parent is emotionally unwell or not functioning, or that either is less well or functioning than the other. However, the anxieties that are spoken to by Dr B of both parents are of some concern for this child’s future. It is on that basis that the matter is adjourned for the briefest period of time that can be accommodated, albeit at inconvenience and disadvantage to other litigants.
The need to protect the child from the behaviours of which the father is concerned has now taken prominence in light of the mother’s retraction of her position that the child is at risk in the father’s care. However, the risk advanced by the father is not the only risk.
The mother is clearly, on her own case, emotionally fragile, if not emotionally vulnerable. I must be conscious, whilst it need not necessarily be the determinative factor, that this child should, to the maximum extent possible, have a mother who is not impacted by her anxieties, whatever they may be at any point in time. In those circumstances, again, I am concerned that an arrangement which would maximise the child’s time with the father, which by and of itself is not a bad thing, would have the potential to undermine the mother’s capacity to care, and particularly in circumstances where the father raises the concerns he does, that the mother will not be supportive of his relationship and will be anxious about the child’s time with him.
That anxiety will arise no matter what arrangement is in place. But I am concerned that anxiety would be maximised with a significant increase in time from that which has previously occurred pursuant to Orders which both parties now seek to change, but which would see more frequent transitions, or transitions which occur directly between the parties.
The primary considerations can be addressed as regards the benefit of the child’s meaningful relationship with both parents on any of the proposals, at least prima facie. However, a proposal which will minimise allegation, minimise transitions of the child and transitions between the parents directly and maximise the intervention of others as safeguards against potential allegations, fears, or concerns, and see appropriate address of them if they do arise, would be preferable. That would favour the child’s transition to the father’s care from daycare and return thereto.
Additional considerations
Views
There is no real evidence as to the child’s views. The child’s views would be far from dispositive having regard to her age and the evidence which would suggest many factors have been in play in forming any views such that the limited evidence there is suggests something other than her own considered view.
Nature of the child’s relationship with each parent
The father concedes at page 18 of Dr B’s report that the child has an extraordinarily strong relationship with the mother. The father’s case is now that the relationship is perhaps best described in terms other than “strong” and to the extent that the father suggests that the relationship is, or has the potential to be or become, unhealthy.
The child’s relationship with the father has been maintained over the last 11 months through the frugal periods of time this child has been able to spend with the father, and including with the stresses and anxieties, whether for the mother, the child, or both, that have surrounded the practice of that time.
The child, I am satisfied, would “cope” with spending time, including overnight time, with her father commencing forthwith. There is some real merit to that urged, particularly by the Independent Children’s Lawyer, of a “lead-in time” in reintroducing overnight time. However, the period for which any arrangement will operate will be limited – about eight weeks or so.
Prior to July 2014 the child had been used to spending overnight time with the father. I am satisfied that, to the extent that an immediate return to overnight time may be unsettling, that it may be “too much too soon”, that any potential for it to be upsetting for the child would be obviated by the capacity of the father to meet the child’s needs and care for the child. That much, at least, impliedly, if not inherently, is conceded in the mother’s case as she now presents it. That immediate reintroduction is preferable to the difficulties that would arise from more frequent transitions or transitions directly between the parties.
The extent to which each parent has taken, or failed to take, the opportunity to spend time or communicate with the child is not relevant.
The extent to which each parent has fulfilled, or failed to fulfil, their obligation to maintain the child
That is a significant issue raised in the mother’s case but far from dispositive of this issue. It does have some relevance, in that the father’s proposal and, to some extent the mother’s, might require that the parents either engage with each other or use a contact centre for changeover. There would be a cost to that, minimal as it is - $5 per week – but the mother, with very limited financial circumstances, may find that an impost. The father proposes that he would meet all such fees in the interim.
There is also the concern that the facility may not even be available during the period of the adjournment. That would create difficulty. It would require the parties to meet, on the best proposal, in the car park of a McDonald’s restaurant. I am satisfied that the child would be far happier, and the arrangement would be far more infused with the child’s interests as paramount, if changeovers occurred through the day care centre.
The likely effect of change, including separation from either parent or other child
Any proposal will see this child spending more time with the father and, thus, separated from her mother. That, in the ordinary course, would not be an issue at all. Certainly, it is recognised that such separations are beneficial and necessary if parents do not live together. However, the concern in this case is that it is not only the child, but the mother who will need to readjust and become “re-acquainted” with overnight periods of time.
That is not to suggest that the Court will temper Orders to accommodate entirely the mother’s anxieties and concerns. Indeed, the mother’s concerns must, to some significant extent, be taken as addressed or withdrawn, as she no longer agitates that the child is at risk in the father’s care. The father seeks to agitate at hearing whether that is a genuine position or not. He will have his opportunity.
The effect of change, however, is that both mother and child will need to readjust to overnight periods. A two night block certainly will be a more difficult and immediate adjustment than a one night period. However, I am satisfied that for the father’s time to be in a block would be preferable if it means that there are less transitions, less comings and goings, and less opportunity for interaction and difficulty, let alone allegation.
Practical difficulty and expense
I incorporate therein section 65DAA(5).
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents live close to each other, at least geographically. In every other respect they would appear to live in separate worlds.
Their ability to implement an arrangement is a little untested, although prior to July 2014 they were able to make an arrangement of overnight time work well enough.
Their capacity to communicate is extraordinarily fraught and difficult. However, the less communication they have, whilst that is not a long-term solution to such difficulties, the better during the brief period until the matter can be concluded.
The impact on the child, I am satisfied, is addressed above. It may be that it is a much larger adjustment for this child to spend two nights away from her mother than one. However, on the basis of the concerns that are raised by the father and that opined by Dr B, albeit presently untested, I am satisfied that would be the preferable arrangement. It will provide a greater normality to the arrangement, an opportunity for the child to be part of the father’s household for a block period, rather than coming and going.
Capacity of each parent and others to provide for the child’s emotional and intellectual needs
Each raises some concern with respect to the other. Untested as those concerns are they cannot assist in this determination.
Maturity, sex, lifestyle and background of the child
As I commenced these reasons, conflict and disruption have been circumjacent to this child’s life since birth. That is far from desirable, and I am satisfied should not continue.
An arrangement that is stable, consistent, predictable, and minimises the potential for trauma is preferable whether that trauma arises, as the father alleges might occur, through the child being interrogated or examined, or through the child being exposed to stand-offs between parents at changeover.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander. Thus, nor does the child.
The attitude to the child and the responsibilities of parenthood demonstrated by each parent
Each is abundantly critical of the other. It will be addressed at final hearing, rather than at present.
Family violence involving the child
Issues and allegations are certainly raised. However, they will be equally addressed by any of the proposals.
Family violence orders
There are none at present. There had been family violence proceedings as a consequence of the allegations which the mother had raised and, for a period of time, an interim Apprehended Domestic Violence Order imposed upon the father and relating to the child as the protected person. Those proceedings were discontinued in May or June of 2015 when the mother advised the Police that she did not wish it to proceed, and accepted that which had been opined by Dr B being that the child was not at risk in the father’s care.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
As regard allegations arising between now and the resumption of the hearing, the potential for further evidence to be put on in relation to actions that occur between now and the hearing, and lack of compliance, or suggested non-compliance, I am satisfied that an arrangement that sees the child transition between child care and the father is preferable and such a transition would best meet the child’s interests. In those circumstances, I propose to make such an Order.
I will Order more time than the mother proposes. That is not to disregard the submissions that are put, they having some real force and benefit. If the adjournment was for longer I am satisfied that the mother’s proposals might well have some real utility.
The time that will be ordered will be more than proposed by the Independent Children’s Lawyer. It will be less than sought by the father. Orders will provide for a two-night overnight period, albeit midweek. Faced with the difficulties, myriad as they are, in these proceedings and relating to the potentially significant disadvantage to this child of things going wrong I am satisfied it is the best I can do.
I certify that the preceding one hundred and ninety two (192) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 17 September 2015
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