Ritchie and Hodgkinson
[2017] FCCA 1882
•11 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RITCHIE & HODGKINSON | [2017] FCCA 1882 |
| Catchwords: FAMILY LAW – Parenting – consideration of the principles of Rice & Asplund – application for summary dismissal. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Family Law Rules2004, r.10.15 Federal Circuit Court Act 1999, s.17A |
| In The Marriage of Rice and Asplund (1978) 6 Fam LR 570 King & Finneran [2001] Fam CA 344 In the marriage of McEnerney [2001] Fam CA 344 Marsden & Winch [2009] Fam CAFC 152 DL & W [2012] FamCAFC 5 Goode v Goode [2006] FamCA 1346 In the Marriage of Bennett (1990) 14 Fam LR 397 Lindon v Commonwealth (No.2) (1996) 136 ALR 251 Paget & Dubois [2013] FCCA 1746 Saad & Saad (1993) FLC 92-332 |
| Applicant: | MR RITCHIE |
| Respondent: | MS HODGKINSON |
| File Number: | MLC 12512 of 2016 |
| Judgment of: | Judge Williams |
| Hearing date: | 23 June 2017 |
| Date of Last Submission: | 23 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 11 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Eidelson of Counsel |
| Solicitors for the Applicant: | Kenna Teasdale Lawyers |
| Counsel for the Respondent: | Mr Indovino of Counsel |
| Solicitors for the Respondent: | McKean Park Lawyers |
ORDERS
There be orders, in terms of the Minute of Orders dated 14 July 2017 (“the Minute”) and further:
The Minute be placed upon the court file and marked Exhibit “A”.
(a)The solicitors for the Applicant do engross the Minute and deliver a clean, duly certified copy of the same in Microsoft Word Document format (“the Copy”) by email to Chambers of Judge Williams within 7 days.
(b)Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
The matter be adjourned to Federal Circuit Court of Australia on 14 November 2018 at 10.00am for Final Hearing, with an estimated hearing time of 2 days (“the Final Hearing”).
Trial Directions
The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:
(a)The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the trial; and
(b)The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial; and
AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:
(c)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or
(d)the party has first obtained leave of the court.
Not later than 4.00pm two business days prior to the trial all parties do electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of the significant factual issues requiring determination;
(d)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (s.60cc factors);
(e)a list of contentions relevant to the operation ofs.65DAA;
(f)a list of any other contentions relevant to the decision; and
(g)the actual orders sought.
That no party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the court.
Family Report
Pursuant to s 62G(2) of the Family Law Act1975, the parties and the said child/children X born (omitted) 2012 attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court no less than 35 days before the hearing date.
The Family Report to deal with the following matters:
(a)any views expressed by the child/ren and any factors (such as the child/ren’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)the matters set out in ss. 60CC, 61DA and 65DAA of the Family Law Act 1975;
(c)the likely effect on the child/ren if the Court were to make Orders in terms of the father’s/mother’s proposed orders;
(d)any other matters that the Family Consultant considers important to the welfare or best interests of the child/ren; and
The parties send copies of all of their Court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.
If a party is not represented by a lawyer, then within 7 days of being notified of the Family Consultant that party do deliver or cause to be delivered to the Family Consultant copies of the following documents:
(a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;
(b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and
(c)any family violence intervention or restraining Orders currently in force.
For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.
The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.
If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyer to) notify the relevant Family Consultant of his or her need to attend Court no less than 7 days prior to the Final Hearing.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory legal aid authority; and
(d)A convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
All outstanding interim applications and applications in a case are dismissed.
The parties’ costs be reserved.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
C.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
EXHIBIT “A”
MINUTE OF ORDERS
UNTIL FURTHER ORDER
That the Father and the Mother be mutually restrained from consuming or being under the influence of any illicit drug during any period when the child of the relationship X born (omitted) 2012 is in their respective care or for a 24 hour period before same.
That the Father and the Mother be mutually restrained from knowingly exposing the said child to any person consuming or under the influence of illicit drugs.
Dismiss all extant interim applications.
Adjourn all extant proceedings to a final hearing on 14 November 2018 for three days.
There be a full Family Report to be released no later than 30 days prior to the final hearing date.
The Mother undergo a hair follicle test every 6 months, and no later than 60 days prior to the final hearing date, with the intention that the outcome of the said test be available to the family consultant preparing the Family Report.
The Father pay for the costs of the said hair follicle tests.
Liberty to apply
Certify
Otherwise the Orders made 3 February 2017 in relation to parenting Orders continue in full force and effect.
AND THE COURT NOTES
A.Paragraph 1 and 2 are agreed to by the Father and Mother without admissions as to the necessity for same.
IT IS NOTED that publication of this judgment under the pseudonym Ritchie & Hodgkinson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 12512 of 2016
| MR RITCHIE |
Applicant
And
| MS HODGKINSON |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the father and the respondent is the mother of the child X (“X”) born (omitted) 2012.
On 3 February 2017, Registrar Riddiford made final orders pertaining to parenting arrangements for X. The orders were made by the mother filing an application for consent orders pursuant to r.10.15 of the Family Law Rules 2004.
Those orders provided inter-alia:
1.That the mother and father have equal shared parental responsibility for X.
2.The X live with the mother.
3.X spend time with the father during school terms as follows:
1.each alternate Friday from 5 PM until 7 PM Sunday;
2.each alternate Monday from 2 PM to 5:30 PM;
3.each Wednesday from 3 PM to 8 PM Thursday.
4.X spend time with the father on a week about basis during school holidays.
5.X spend time with the father for special occasions.
The father filed an application on 7 June 2017, some five months after the orders were made by consent. The respondent mother raised the issue that there has been no material, substantial or significant change in the circumstances, since the making of those orders, and that as a result, the application should be dismissed under what is commonly referred to as the principle in In the Marriage of Rice and Asplund[1] (“Rice & Asplund”).
[1] In the Marriage of Rice and Asplund (1978) 6 Fam LR 570.
Alternatively, the mother seeks that the application should be summarily dismissed pursuant to:
1.Section 17A of the Federal Circuit Court Act 1999, as it has no reasonable prospect of being successfully prosecuted; or
2.Pursuant to rule 13.10 of the Federal Circuit Court Rules 2001, as:
a.the application has no reasonable prospect of succeeding: or
b.the application is vexatious, or
c.the proceedings are an abuse of the court process.
The father’s application came before me in a duty list for first mention and directions on 21 June 2017.
The application filed by the father sought a change of residence for X, and was supported by the following:
a)Affidavits of the father sworn and 6 June 2017 and 19 June 2017;
b)Affidavit of Mr B (a former counsellor of the mother) sworn 19 June 2017;
c)Affidavit of Ms K (the maternal grandmother) sworn 19 June 2017.
The basis of the father’s application for a change in residency may be summarised as follows:
a)His concerns that the mother may be using illicit substances again, as she has a history of significant substance abuse, and this would expose the child to risk of psychological harm and neglect;
b)The mother’s fiancé, Mr N, has a criminal record and the father has concerns about his drug use and cultivation;
c)The father alleges that Mr N is becoming more aggressive with the child, and unusual punishment has been escalating, according to disclosures made by X. The punishment poses a risk of psychological and physical harm to X.
The mother substantially denies the father’s allegations. In her Response the mother seeks that the father’s application be dismissed. She relies on the following in support of her Response:
a)Affidavits of the mother affirmed 19 June 2017 and the 22 June 2017;
b)Affidavit of Mr N sworn 22 June 2017;
c)Affidavit of Mr M (maternal grandfather) sworn 22 June 2017;
d)Notice of Risk filed 19 June 2017;
On 21 June 2017 orders were made by me, inter-alia, as follows:
1.Pursuant to section 11 F of the Family Law Act 1975, the parties and the child attend upon a family consultant on 23 June 2017 for the purposes of a child inclusive conference.
2.The Family Consultant, provide an oral report on 23 June 2017 at 2:15 PM.
3.The mother forthwith provide a hair sample to Melbourne Pathology for analysis of follicle testing in relation to the use of illicit drugs, the results to be made available to solicitors for the father and mother.
4.The mother be restrained from cutting her hair prior to such test.
5.The cost of said hair follicle test be paid by the father.
6.The proceedings be otherwise adjourned to 2:15 PM on 23 June 2017.
The orders included two notations which were as follows:
a)The orders made this day are without prejudice to the mother pursuing a Rice & Asplund argument.
b)Documents produced pursuant to subpoenas are released for inspection, noting the objections of the mother.
On 23 June 2017, a family consultant provided an oral report to the court. Further orders were made as follows:
1.The mother is restrained from living with Mr N.
2.The parties costs be reserved.
3.All extant applications adjourned to 14 July 2017.
On 14 July 2017 the results of the mother’s hair analysis drug test were provided to the court. I refer to the results later in these reasons.
Counsel for the mother sought that the Rice & Asplund and summary dismissal application, be determined on the basis of submissions on effectively a “threshold” basis. Counsel for the father agreed with that approach. The matter therefore proceeded before me on submissions as to the preliminary issue of whether or not the application should be dismissed on consideration of the principles in Rice & Asplund, and or summarily dismissed.
The Applicable Law
Rice & Asplund
In Rice & Asplund, the judgment which gives rise to the often quoted principle, the mother sought to revisit parenting orders nine months after final parenting orders were made. The trial judge allowed the mothers application and varied the previous orders. However, on appeal, the Full Court at p.572 said :
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, …change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, …there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material
As has been noted, it is normal to expect some change in circumstances, following a contested hearing and with the expiration of time. However, should it eventuate that there existed at the time of the hearing a factor which was not disclosed, which would have been material then a further hearing may be warranted[2]
[2] Langham & Langham (1981) FLC 91-014
Collier J in King & Finneran [2001] Fam CA 344, considered the rationale of the principle as follows:
[41] . “The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68 F (now s60CC) would defeat the purpose of that protection…”
[44] . “To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings..”
[49] “to be either significant or substantial is to indicate that the matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size, et cetera. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time, or in the usual course of human activity.”
The public policy aspect was further noted by Nygh J In the marriage of McEnerney [2001] Fam CA 344.
The Full Court in Marsden & Winch [2009] FamCAFC 152, at paragraph [50] stated:
…in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
The application of the rule involves a two-step process. The Full Court in Marsden & Winch (supra) at paragraph [58], described a two-step process to be followed:
…there is a requirement:
(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
The dual considerations of the rule were further developed by the Full Court in DL & W [2012] FamCAFC 5. Their Honours considered an appeal from a Federal Magistrate at first instance, dismissing a father’s application to relitigate parenting matters, where the Court found significant changes in circumstances, but, on consideration of the potential costs and benefits to the child from a new trial dismissed the application.
In determining the second step of the process, the court is not required to either follow the legislative pathway of Goode v Goode [2006] FamCA 1346, nor is it required to undertake an assessment of all of the s60CC factors. The Full Court in DL & W, at paragraph 77, adopted the view of Collier J in King and Finnernan, that to require the court to do so would defeat the entire purpose of the rule in Rice and Asplund.
Summary Dismissal
The court’s power to summarily dismiss an application is found in s.17A of the Federal Circuit Court of Australia Act1999 and r.13.10 of the Federal Circuit Court Rules2001 (“the rules”).
Section 17A of the Federal Circuit Court Act 1999 provides:
Summary judgment
(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
Rule 13.10 of the rules provides:
RULE 13.10 DISPOSAL BY SUMMARY DISMISSAL
13.10 The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the preceding, if the court is satisfied that:
(a) the party, prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the court.
The principles to be applied in determining whether summary dismissal should be granted are set out by Kirby J in Lindon v Commonwealth (No.2) (1996) 136 ALR 251. They may be summarised as follows:
14. The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, …is rarely and sparingly provided
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination . Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4. Summary relief…, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer .If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading .
6. The guiding principle is,… doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
In Paget & Dubois [2013] FCCA 1746, Judge Burchardt observed at [37] :
… where there is a real issue of fact relevant to a pleaded cause of action which must be resolved to determine whether the claim succeeds, it is unlikely that that part of the proceedings has no prospect of success…
Mother’s Submissions
I will firstly address the mother’s submissions in relation to both Rice & Asplund and summary dismissal.
Rice & Asplund
The mother’s counsel submitted that the “rule” in Rice & Asplund required the court to be satisfied as to a substantial and significant change of circumstances prior to permitting the parties to embark on re-litigating parenting issues.
He referred me to a number of authorities in support of that proposition, namely Saad & Saad (1993) FLC 92-332, D & Y (1995) FLC 92-581 and In the Marriage of Bennett (1990) 14 Fam LR 397.
In particular, he referred me to:
a)The definition of significant and substantial change at 409 of In the Marriage of Bennett (1990) 14 Fam LR 397;
b)D & Y (supra), as authority for the court having a discretion to deal with a change of circumstances argument either as a preliminary or trial issue.
The factors which he submitted, mitigated against permitting further litigation were as follows:
1.The circumstances in which the orders came about, was only one factor to be considered;
2.The allegations about the mother’s drug use, and in particular, her usage of ice, had been dispelled by the result of the hair follicle analysis;
3.The allegations about Mr N, the mother’s fiancé, using drugs and cultivating drugs, were not supported by the Victoria police records, which demonstrated there had been no recent convictions;
4.The DHHS file, which had been subpoenaed demonstrated that the father’s allegations about the mother and Mr N had been the subject of an investigation and report in late 2016 and had not been substantiated;
5.The contents of the DHHS report to the court, dated 19 June 2017 did not support the allegations made by the father against the mother and Mr N;
6.Ms A, the family consultant, who prepared the S11F report did not recommend or support a change in X’s residence;
7.The mother vehemently denied the allegations levelled at her and Mr N and the affidavit of the paternal grandfather did not express any concerns about X’s current living arrangements.
Summary Dismissal
Counsel for the mother did not make any submissions directly referable to the summary dismissal argument, except that he remarked that the principles are interwoven with the Rice v Asplund principle.
Father’s Submissions
I will secondly address the father’s submissions in relation to both Rice v Asplund and summary dismissal.
Rice & Asplund
The father’s counsel submitted that I should not accede to the mother’s application, and that I should consider the matter in terms of the best interests of the child, rather than as a technical argument.
The father had raised X’s best interests on three occasions, namely 21 June 2017, 23 June 2017 and on 14 July 2017.
The factors which he submitted supported further enquiry into X’s living arrangements were as follows:
1.It was wrong to suggest that a summary order which was made by the Registrar on 3 February 2017 reflects any determination, or consideration of X’s best interests. At the time the application for consent orders was filed:
i.No material was filed about the mother’s past conduct, including substantial drug use, and her incarceration;
ii.There was no material filed to enable the Registrar to form any view as to X’s best interests That is evident from the orders made, which do not contain any restraint in relation to drug use or exposure.
2.It is specious to suggest that the orders made on 3 February 2017 are in X’s best interests. There is no proper foundation to the orders because of the mother’s history of drug use and the serious risk factors.
3.The mother’s denials of current drug use and admission of occasional marijuana use are inconsistent with the results of the hair follicle analysis drug test results. The results state that confirmation cut off is 1pg/10mg, and the mother’s positive results are 26.0pg/10mg. The results are indicative of the mother using marijuana chronically and regularly.
4.On the last occasion the matter was before me, counsel for the mother stated that the mother and Mr N were not living together. However, the Notice of Risk filed by the mother on 19 June 2017, identifies Mr N is living at the same address as the mother.
5.There are serious allegations made about the mother by the following:
a.Father;
b.The maternal grandmother, Ms K;
c.A Professional Court Advice and Support Officer, Mr B.
6.The allegations of the maternal grandmother at paragraph 26 of her affidavit are of a seriously concerning nature and are as follows:
a.That the mother admitted to her that she was smoking marijuana;
b.The mother attempted to minimise the extent of her fiancé’s involvement in criminal activity;
c.The mother admitted that her partner did run grow houses;
d.The mother moved X to live with her partner as from November 2016.
7.Mr B at paragraphs 4 and 5 of his affidavit alleges that in February 2017:
a.He met with the mother;
b.During the meeting she did not deny being involved in drug activity herself;
c.She denied her fiancé’s involvement in drug activity;
d.During a telephone call subsequent to the meeting with the mother, she admitted that her partner was involved in drug activity, namely operating grow houses, although he had promised her that he would close the grow houses down.
8.There were serious concerns about her fiancé, Mr N, with whom the mother had been involved romantically since 2016. To suggest that the fiancé was not a person of significance in terms of posing a risk to X, was ridiculous. The mother had admitted his criminal activities to two people.
9.The family consultant did not have the benefit of the results of the mother’s hair follicle drug test. The recommendation is predicated on the drug allegations having no collateral support, however, the results of the hair follicle test give collateral support to the father’s concerns about the mother’s drug use.
Summary Dismissal
Counsel for the father did not specifically address the mother’s application for summary dismissal. He did, however, stress the factual disputes between the parties. As previously referred to, the submissions of counsel for the mother were limited to a comment that the principles for summary dismissal and Rice & Asplund were interwoven.
Discussion and Consideration
I will address the submissions of both counsel.
Circumstances of the making of the orders on 3 February 2017
The consent orders which were made on 3 February 2017, were made by a Registrar, pursuant to the consent procedure pursuant to r.10.5 of the Family Law Rules2004. They were not made at the conclusion of a defended hearing.
An application was filed by the mother’s then solicitor on 21 December 2016. The only information in that application about X’s welfare is contained at paragraphs 11, 12, and 12A.
In summary, paragraph 11 provides that an interim intervention order was obtained by the mother against the father in the Heidelberg Magistrates’ Court on 16 November 2016.
Paragraph 12 of the application, in response to whether or not the application is consistent with a family violence order, states as follows:
The current interim intervention order provides that the child can spend time with the father in accordance with our family law act order. The intention of the mother is to withdraw the intervention order application.
Paragraph 12A of the application requires details of any contact with the department responsible for child safety with respect to the children named in that application or any child of the household. In response, the application states as follows:
Contact with Department of health and human services conducted an investigation into the welfare of the child arising from allegations made by the father, after which the mother obtained an intervention order against the father. The case was closed. The Department of Health and Human Services found no concerns.
Paragraph 24 of the application details the proposed arrangements for the child. In relation to housing, the application states that X lives full-time with his mother in a five bedroom house and has his own room and all modern amenities. There is no mention of any other occupants of the mother’s home.
In addition to the application, each of the parents filed an Annexure to Proposed Consent Parenting orders.
In response to the certification in relation to whether a child has been at risk of abuse, neglect or family violence, the mother did not provide any information. The father stated, at part C, of the annexure, as follows:
1. The mother has been concerned about possible family violence, resulting in her applying for an interim intervention order. This application was withdrawn on 16 December 2016, in the context of the current orders, having been agreed to by both parties.
2. Concerns as to the welfare of the child in the care of the mother have recently been investigated by DHHS. This investigation has now concluded.
3. The conflict between the mother and the father was a significant contributing factor to the above concerns. Now, agreement has been reached as to X’s care, these risks have abated.
Apart from the application for consent orders and the annexures of each of the parents, there were no affidavits or any other documents filed or any evidence before the court at the time the orders were made on 3 February 2017.
The documents filed do not refer to:
1.The mother’s history of substance abuse;
2.Her period of incarceration;
3.Whether the mother lives with Mr N;
4.Whether Mr N’s conduct poses a risk to X.
There was a significant deficiency in evidence before the court as to potential and significant risk factors pertaining to the child.
I do not accept the submissions that the allegations concerning the mother’s drug use have been dispelled by the result of the hair follicle analysis. The results do not demonstrate that the mother has used ice, as has been alleged, however they do demonstrate that she has used marijuana, and on the face of it, significant quantities. As foreshadowed by counsel for the father, if the matter continues, there will no doubt be expert evidence obtained as to the interpretation of the hair follicle analysis results to ascertain the extent of the mother’s marijuana use.
The mother’s own evidence in these proceedings about where Mr N lives is conflictual. As counsel for the father submitted, the mother’s Notice of Risk filed in these proceedings lists Mr N is address as the same as hers .The allegations about Mr N and the possible risk, his conduct poses to X were clearly not raised in the earlier proceedings.
The fact that the police records demonstrate that Mr N, has no recent convictions for using or cultivating drugs, does not, in my view, provide conclusive evidence that he is not engaging in such activity. That remains a significant issue and eventually should be the subject of findings by the court.
Similarly, the DHHS file and report are not conclusive evidence to refute the allegations levelled against the mother and Mr N. In due course, these allegations will also be the subject of findings, after cross examination of relevant witnesses.
The views of the family consultant, who prepared the s.11 F report, are not conclusive evidence. The consultant was not aware of the results of the hair follicle analysis test at the time of her recommendations. Her evidence remains untested, and in any event, the report is not a full forensic family report.
The evidence of the maternal grandfather conflicts with the evidence of the maternal grandmother and Mr B. In the absence of testing of evidence, during interim submissions, I cannot make findings about the evidence of each witness. There is an immense divergence of opinion between the witnesses, who support the mother, and those who support the allegations of the father. It is appropriate for the witnesses to be cross-examined and made findings as to the veracity of the witnesses evidence.
Conclusion
Rice & Asplund
Given the lack of evidence before the court at the time of making the orders in February 2017, I do not accept the submission of counsel for the mother that there are no significant and substantial circumstances which have arisen since the making of the orders. I accept that the allegations predate the orders, however, the court was not made aware of the allegations against the mother until the current proceedings. The allegations are significantly concerning and serious to warrant further investigation by the court, to determine what orders are actually in X’s best interests.
The allegations and evidence, albeit untested, which has come to light in these proceedings, and which was not before the court when the orders were made in February 2017 and may be summarised as follows:
a)The mother’s current drug use, and its impact on X;
b)Whether the mother lived with Mr N;
c)The impact on X of Mr N’s conduct and drug related activities.
Each of these matters is of a very serious nature, in so far as it impacts on X’s living arrangements and the appropriateness of the orders made in February 2017.
Furthermore, there was not originally any assessment of the child by a professional, nor any evidence that he was even aware of the orders. This is not a case where a child has been repeatedly subjected to professional assessment nor involved in the court process. The only professional involvement has been the s.11 F assessment, which was ordered in the course of the current proceedings.
Accordingly, I conclude that it is appropriate that the current proceedings continue and that a thorough and comprehensive investigation be conducted as to what orders are in the X’s best interests. I do not consider that the principle in Rice & Asplund precludes such an investigation.
Summary dismissal
There are many disputed facts between the mother and the father. The allegations against the mother are extremely serious and potentially impact directly on whether or not her conduct poses a risk to X. I am unable to make any determination of fact at this stage. That will require a proper testing of the evidence of each witness in due course.
In my view, the mother is has not demonstrated that the father’s claim is frivolous or vexatious, or even that it appears weak. The strength or weakness of the fathers claim will only be apparent after relevant findings.
I have had regard to the facts of this dispute and the statement of principles applicable in determining whether summary dismissal should be granted, as set out by Kirby J in Lindon v Commonwealth (No.2) (supra) and the comments of Judge Burchardt in Paget & Dubois (supra). I have concluded that the mother’s application for summary dismissal must fail.
I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 11 August 2017
AMENDMENT – 18 August 2017.
Matter name amended to correct name order:
Ritchie & Hodgkinson [2017] FCCA 1882.
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