Rivers & Anor and Rivers & Anor
[2018] FamCA 399
•1 June 2018
FAMILY COURT OF AUSTRALIA
| RIVERS AND ANOR & RIVERS AND ANOR | [2018] FamCA 399 |
| FAMILY LAW – CHILDREN – The rule in Rice & Asplund – Application and consideration of the rule in Rice & Asplund – The best interests of the child or children – Where the children have been involved in litigation for 4 years – Where litigation was settled by final orders as between the mother and the father – Where the paternal grandparents seek orders in their own right – Where the children are of an age that it is likely that a view expressed by them would be given considerable weight in any further parenting dispute – Where the mother opposes the application – Child Inclusive Counselling ordered |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3) |
| Deiter & Deiter [2011] FamCAFC 82 Freeman & Freeman (1987) FLC 91-857 In the Marriage of McEnearney & McEnearney (1980) FLC 90-866 Keats & Keats [2016] FamCAFC 156 Marvel & Marvel [2010] FamCAFC 101 Rice & Asplund (1979) FLC 90-725 Searson & Searson (2017) FLC 93-788 SPS & PLS (2008) FLC 93-363 |
| APPLICANTS: | Mr C Rivers and Ms D Rivers |
| FIRST RESPONDENT: SECOND RESPONDENT: | Ms A Rivers Ms B Rivers |
| FILE NUMBER: | BRC | 6267 | of | 2014 |
| DATE DELIVERED: | 1 June 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 18 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Ms Vohra SC |
| SOLICITOR FOR THE APPLICANTS: | Resolve Divorce Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Linklater-Steele |
| SOLICITOR FOR THE 1ST RESPONDENT: COUNSEL FOR THE 2ND RESPONDENT: | Barry Nilsson Lawyers No appearance |
Orders
That the parties and X born … 2002 and Y born … 2006 do engage in a Child Inclusive Conference with a family consultant pursuant to s 11F of the Family Law Act 1975 (Cth).
That the parties be at liberty to relist the matter on twenty one (21) days’ notice following the receipt of the Child Inclusive Memorandum.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rivers and Anor & Rivers and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: BRC 6267 of 2014
| Mr C Rivers and Ms D Rivers |
Applicant
And
| Ms A Rivers |
First Respondent
And
Ms B Rivers
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed 15 February 2018, Mr C Rivers and Ms D Rivers (“the paternal grandparents”) seek orders that X born in 2002 (“X”) and Y born in 2006 (“Y”) (collectively “the children”) spend time and be able to communicate with the paternal grandparents.
By Amended Application in a Case filed 4 May 2018, Ms A Rivers (“the mother”) seeks that the Initiating Application filed by the paternal grandparents be summarily dismissed, or in the alternative that [1] of the final orders sought be dismissed.
Mr B Rivers (“the father”) has not filed a response and it is assumed that he does not intend to take part in the proceedings.
BACKGROUND
The children were the subject of contested parenting proceedings between the parties in the Brisbane Registry of the Family Court of Australia. The proceedings were commenced by the mother’s Initiating Application of 16 July 2014.
On 14 September 2017, final orders were made as between the mother and the father that she would have sole parental responsibility for the children, they would live with her and spend time and communicate with the father at times as may be agreed in writing.
The final hearing that was listed to commence on 23 October 2017.
On 20 January 2017 the paternal grandparents filed an application seeking to be joined as parties to the proceedings. On 13 April 2017 they filed a Response to Initiating Application seeking that in the event that neither parent was deemed fit to look after the children, then they should live with the paternal grandparents and spend time with the mother and the father subject to their wishes or as may be ordered by the Court.
The alternative proposal was that should the children live with either the mother or the father they should spend time and communicate with the paternal grandparents as follows:-
·For an entire weekend four times per year.
·For one week during the children’s school holiday two times per year.
·Such other times as may be agreed between the paternal grandparents and the parent with whom the children are living.
·That the children be able to communicate with the paternal grandparents as they may wish.
The alternative proposal of the paternal grandparents is in similar terms as the orders now sought by them.
The Court was assisted by the continued involvement of Ms E (“family consultant”) who published a family report dated 23 November 2016 with a further update on 31 March 2017.
Following a consideration of the latter report and some information that had been provided by the Department of Communities, Child Safety and Disability Services on 20 April 2017, the paternal grandparents filed a Notice of Discontinuance on 8 May 2017.
Accordingly, as at the date of the final orders the paternal grandparents were not parties to the proceedings.
In December 2017 the mother and the children returned to live in South Australia. The father has not spent time with the children since December 2016. The children do not currently see or communicate with the paternal grandparents.
ISSUES RAISED BY THE GRANDPARENTS
The paternal grandmother contends in her affidavit filed 1 February 2018:-
35.At the time of filing the Notice of Discontinuance, we were confident that the mother would be supportive and encouraging of our continued relationship with the children, particularly given her comments to the report writer that “she will never stop the children from having contact with [us]” and that “she would be happy to negotiate with the paternal grandparents to ensure that the children enjoy an on-going relationship with [us] and their cousins”.
The paternal grandparents argue that there had always been a good relationship with the children and whilst they accept that the children requested less involvement with them, they were receptive to their needs and did not thereafter pursue any excessive engagement with the children.
The paternal grandparents accepted that the children were distressed and upset by the manner in which the father returned the children to the mother’s care. As a result of their recognition of the escalating conflict between the mother and the father and the potential for detrimental impact on the children, the paternal grandparents forwarded correspondence to the mother’s solicitors dated 22 March 2017 agreeing that they would not seek time or attempt to communicate with the children.
Despite various attempts to communicate with the children, they have been unsuccessful.
The paternal grandparents remain concerned that in circumstances where the children have no relationship with the father and now reside in South Australia, they may lose all contact with them.
ISSUES RAISED BY THE MOTHER
The mother refers to the dysfunctional relationship with the father and alleges that it was marred by serious and ongoing family violence.
She asserts that both she and the children have been adversely affected by the conflicts between the parties and the litigation. The mother was concerned not only as to her own mental health and wellbeing, but considered that if the children remained in Queensland they would be reminded of the traumatic events arising from their father’s behaviour and their fear of the possibility that they would come into contact with him.
The mother summarises the children’s presentation at [40] of her affidavit filed 11 April 2018 as follows:-
(h)The children, particularly [X], became increasingly anxious and ill as a result of the foregoing matters. She lost considerable weight and was prescribed anxiety medication. [Y] also began to behave in a disrespectful fashion towards, for example, his teachers. He was not enjoying school and being difficult for his teachers. His grades suffered accordingly.
Following their move to South Australia, the mother considers that the children are now well settled in their current home and routine. They live in close proximity to their schools and have a good relationship with the maternal family.
The health and behaviour of each of the children has improved. The mother records at [42] of her affidavit that the children:-
… have expressed to me very clear wishes not to see or communicate with [the paternal grandparents] when I recently asked them in relation to [their application]. I observed that raising the subject with the children caused them to revert to being worried and anxious.
The mother considers that further exposure to court proceedings may well put at risk the children’s current positive presentation.
The mother relies upon correspondence received from the paternal grandparents’ solicitors on 8 May 2017 setting out the basis for them discontinuing the proceedings. The letter is reproduced in her affidavit at [37]:-
… In order to assist with the safety of the children, our clients have instructed our office to withdraw their application for orders to spend time with the children in the Family Court of Australia. They hope this will allow time for the applicant and the children, with the support of the applicant’s family to move forward and build their life together.
Our clients note that communications between the applicant and their family have become strained over the past few months. As a result they wish to advise that they will not communicate with the applicant or the children, in the near future, until the applicant and the children have the need or desire to communicate with them. Our clients will recommend the same to other members of their family. While our clients miss the children very much and are sad and tearful about the situation that they have experienced with their absence, the children will always be in our clients’ hearts and thoughts. Our clients will continue to pray that God will keep them safe and from harm’s way, and they also pray that God will give strength and guidance to the applicant to provide a healthy and safe environment for their grandchildren.
In summary, the mother raises her reasonable concern that the further litigation that would result from the paternal grandparent’s application may present as a significant risk to the children in circumstances where the applicants chose to discontinue their proceedings thereafter enabling the mother and the father to conclusively resolve the proceedings by final orders.
OUTLINE OF SUBMISSIONS ON BEHALF OF THE APPLICANTS
The paternal grandparents contend that in withdrawing their proceedings they did not foresee that they would no longer have any communication or be able to pursue a relationship with the children.
It is argued that the children were familiar with their grandparents, had spent significant time with them and but for the difficult period following the separation of the parties when the children, but in particular X considered that the attempts at communicating with her by the paternal grandmother were excessive, hitherto their relationship had been close and beneficial. There has been significant opportunity since the making of the final orders for the children to communicate and resume a relationship with their grandparents. The consequence is that in the absence of the children spending time with their father, the grandparents consider that the children will lose all contact and connection with the paternal family.
At this stage the only order sought by the paternal grandparents is that there be s 11F Child Inclusive Counselling prior to any other orders being made. Taking into account the children’s age and on the assumption that they will express a view, whilst not being required to do so, their wishes will likely be afforded considerable weight in the determination of any future parenting orders.
SUBMISSIONS ON BEHALF OF THE MOTHER
The mother contends that the children have engaged in ongoing litigation commencing 16 July 2014 and concluding on 14 September 2017. The children were represented by an Independent Children’s Lawyer (“ICL”) and have been the subject of ongoing interview and assessment. There are three family reports which have informed the Court as to the circumstances in which the children found themselves.
Not only was the litigation extensive but involved the children being confronted with the competing claims of the parties that the other parent presented as a risk to the children by reason of the abuse of alcohol on the mother’s part and alcohol and illicit drug use on the part of the father.
The children were assisted by psychological therapy and counselling to enable them to better manage the emotional trauma and turmoil experienced arising from the conduct and behaviour of each of the parties and the ongoing litigation.
The mother considers that any relationship enjoyed by the children with the paternal grandparents was damaged and possibly irretrievably so by their excessive persistence in attempting to contact the children.
The mother asserts that the paternal grandparents were aware of her desire to relocate the children to South Australia and refers to the second family report dated 31 March 2017 which supported the mother’s proposed move.
The paternal grandparents filed their Notice of Discontinuance with knowledge of the contents of that report and took no action other than to discontinue their involvement in the proceedings.
The mother’s opposition to the orders sought by the paternal grandparents is detailed in her Case Outline document in the following terms:-
42.1.The Applicants have failed to provide any evidence as to a prima facie change in circumstances since the filing of their Notice of Discontinuance in the previous proceedings which justifies this Honourable Court embarking upon a further hearing including yet another process of interviewing the children; and
42.2.It is contrary to the children’s best interests for this Honourable Court to make parenting orders as between the children and the Applicants.
The mother’s counsel relies upon the principle as set out in Rice & Asplund (1979) FLC 90-725 per Evatt CJ at 78,905:-
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. …
Should then the principle in Rice & Asplund (supra) apply to prevent the paternal grandparents pursuing orders with respect to the children.
In Freeman & Freeman (1987) FLC 91-857 Strauss J said at 76,470 to 76,471:-
… Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. … The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential pre-requisite to their well-being. … Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
Warnick J in SPS & PLS (2008) FLC 93-363 observed:-
[69]… In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify fresh considerations of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before a court. The nature of the hearing that follows if the Rice & Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.
…
[81]Thus, in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
In the Marriage of McEnearney & McEnearney (1980) FLC 90-866 Nygh J considered the application of what was then the recent decision in Rivers & Asplund. He noted at 75,498 – 75,499 that:-
Previously judges tended to view custodial disputes as primarily conflicts between parental rights and this offered a situation in which it would be easier to apply the hallowed principles of res judicata and issue estoppel. This contrasts with the more flexible approach which is seen in more recent decisions of the Full Court such as in Rice & Asplund (supra).
Having said that I would hasten to add that the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
The Full Court in Searson & Searson (2017) FLC 93-788 considered the application of the rule in Rice & Asplund and referred at [10] to remarks by Warnick J in SPS & PLS (supra) that:-
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
And by further reference to Warnick J’s remarks in SPS & PLS (supra) their Honours held at [12]:-
Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.
The mother’s counsel did not press paragraph 1 of the Amended Application, that the Initiating Application filed by the paternal grandparents should be summarily dismissed. The argument proceeded in respect of paragraph 2 of the application. By reference to the Case Outline document counsel argues that the repeated proceedings “are generally contrary to the children’s best interests”.
In Searson (supra) the following appears at [16]:-
In Marsden & Winch the Full Court said:-
[57]. In Miller … the court posed the question:
[105]Adapting the language used by Warnick J in SPS & PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
[58].That question might be better formulated in another way in the following proposition, namely that 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.
It is argued by senior counsel for the paternal grandparents that the principle in Rice & Asplund (supra) should not apply to the current circumstances because at the time that the final order was made the paternal grandparents were no longer parties. That is, at all material times the principal dispute had been between the children’s parents and only involved the paternal grandparents for a relatively short period.
There is no evidence that the paternal grandparents have acted maliciously or that their discontinuance of their proceedings was part of a malevolent strategy to preserve their ability to bring further proceedings pending the outcome of the dispute between the parties.
Res judicata, issue estoppel or an Anshun injunction are principles that are not ordinarily available in a parenting dispute. Whilst in an appropriate case it could be argued that there may be an abuse of process by a party re-litigating that which has been heard and determined, no evidence is led to suggest such an approach is either available or should be applied.
Accordingly, I consider that in the circumstances of this case there is no impediment to the initiating application as filed by the paternal grandparents and I do not propose that it be dismissed.
REPORT OF THE FAMILY CONSULTANT DATED 31 MARCH 2017
The family report provides some assistance as to the extent of the previous relationship between the paternal grandparents and the children.
At [12] the mother is reported as saying that:-
[S]he had made sure that the children have maintained contact with their paternal grandparents and their cousins. The mother claimed that she had reassured the paternal grandparents that she will never stop the children from having contact with them.
At [22] the following appears:-
[The mother] reported that both of the children clearly told her they do not want to speak to their father and stated; “they’re scared silly about their father”. [the mother] alleged that [X] has told her that she will not be made to see her father. She said that she would [respect] the children’s wishes, whatever they maybe (sic). [The mother] said that she had worked so hard to ensure that the children felt loved and safe. She further said that she would like to relocate with the children back to South Australia, where both she and the children will have the benefit of support from her immediate and extended family. [The mother] also said that she would be happy to negotiate with the paternal grandparents to ensure that the children enjoy an on-going relationship with them and their cousins, though the mother said that she would be concerned about the children being exposed to their father, if they were to spend time with the paternal grandparents…
X confirmed to the family consultant that she had some contact with the paternal grandparents and that whilst she loved them it is recorded at [38] that she didn’t “have a lot of trust with them, cause I know they’ll be in touch with Dad”.
At [64] the family consultant expressed the view that:-
Should [the mother] and the children relocate to South Australia it is also possible that the paternal grandparents may be able to facilitate time between the children and their father in the future when/if deemed appropriate.
The report clearly highlights that there had been a beneficial relationship between the paternal grandparents and the children which had been adversely impacted upon by the dysfunctional behaviour of the children’s parents and the distress caused by highly conflicted litigation.
PARENTING CONSIDERATIONS
In Marvel & Marvel [2010] FamCAFC 101 the Full Court considered the caution that should be exercised in interim proceedings. The issues of findings in contested evidence was considered as follows:-
[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
In Deiter & Deiter [2011] FamCAFC 82 the Full Court considered an even more cautious approach should be adopted where the issue involved an assessment of risk. The following appears at [61]:-
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
Nonetheless, it does not mean that in an appropriate case it is not open to a Judge to be overly cautious as the Full Court considered in Keats & Keats [2016] FamCAFC 156 at [9]:-
… the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected…
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the principles underlying Pt VII of the Act.
Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the children are the paramount consideration.
The Court is then obliged to consider the provisions of s 60CC as to the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3).
In particular, when applying the considerations as set out in s 60CC(2) and considering s 60CC(2A) the Court is to give greater weight to the need to protect a child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
Of particular relevance is a consideration of the children’s wishes. The only indication is that X considered that she wanted to see her grandparents but was concerned that they may attempt to bring her into contact with their father.
X is currently 15 years of age and Y is 11 years of age. If they are prepared to express their views, it may well be an important consideration in terms of the orders that are sought by the paternal grandparents.
There is no present indication of their wishes or how they feel about the further litigation currently being undertaken.
The proposal by the paternal grandparents that there be a referral for s 11F Child Inclusive Counselling is a modest first step and is unlikely to unduly distress the children.
Moreover, the children have been removed from the litigation since September 2017 and according to the mother they are now well settled in their school and home life. They have the advantage of the extended maternal family.
Given the ages of the children, a reflection of their views may be better sourced directly from them rather than their mother’s assessment.
I propose to order that the parties and the children engage in s 11F Child Inclusive Counselling.
I make orders as appear at the commencement of these reasons.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 1 June 2018.
Associate:
Date: 1 June 2018
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