Russell and Withers and Anor

[2020] FamCA 336

FAMILY COURT OF AUSTRALIA

RUSSELL & WITHERS AND ANOR [2020] FamCA 336

FAMILY LAW – PRACTICE AND PROCEDURE – application to reverse previous final parenting orders – application to relocate with children – determination of issues to be dealt with summarily or by full investigation and hearing – Division 12A

Family Law Act 1975 (Cth) ss 60CA, 69ZN, 69ZQ(1)(a), 70NBA, 102QB, Part VII, Division 12A

Marsden & Winch 2009 FamCAFC 152
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Ms Russell

1st RESPONDENT: Mr Withers

2nd RESPONDENT: Ms Russell Snr

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

FILE NUMBER: CAC 223 of 2015

DATE DELIVERED: 7 May 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 21 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Saw

SOLICITOR FOR THE APPLICANT: Fitzgerald Lawyers

SOLICITOR FOR THE 1ST RESPONDENT: Mr Withers

SOLICITOR FOR THE 2ND RESPONDENT: Ryans Barristers & Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

Orders

1. In the conduct of the proceedings in relation to the Rice v Asplund issue and the interim orders sought, to be conducted commencing 21 July 2020, the following issues may be the subject of full investigation and hearing:

   (a)[1 – 18], [22 – 30], [32 – 33], [35 – 37], [41], [43 – 44] and [46 – 47] of the Mother’s list; and

   (b)       Points 8 – 11 and 13 – 16 of the Grandmother’s list.

2. In the conduct of the proceedings in relation to the Rice v Asplund issue and the interim orders sought, to be conducted commencing 21 July 2020, the following issues are be the subject of summary disposition:

   (a)[19 – 21], [31], [34], [38 – 40], [42], [45] and [48 – 52] of the Mother’s list; and

   (b)       Points 1 – 3, 5 – 7, 12 and 17 – 18 of the Grandmother’s list.

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 Russell & Withers 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 CANBERRA

FILE NUMBER: CAC 233 of 2015

Ms Russell

Applicant

And

Mr Withers

Respondent

And

Ms Russell Snr

Second Respondent

REASONS FOR JUDGMENT

1. This matter occurs in the context of previous litigation between the parties in relation to the two children the subject of the current litigation.  By that previous litigation, and following a contested hearing, the living arrangements were determined on an ostensibly final basis by Watts J in 2016.

2. The Mother now pursues a fresh application in this Court in which she seeks a reversal of the arrangements put into place by Watts J, such that, rather than the children living with their Father in Australia, they would live with the Mother in the United States of America.  The Mother also sought a reversal of the allocation of parental responsibility by Watts J so that, rather than being primarily placed with the Father, the Mother would hold parental responsibility. The Mother pursues this relief on an interim as well as a final basis.

3. The recommencement of litigation occurs in the further context that what was identified by Watts J as a significantly adverse factor to the children’s wellbeing at the time was the conflict and litigation between the parties.[1]

   [1] See for example [333] of the judgement by Watts J

4. The applications made by the Mother (and supported by the maternal grandmother) call into play, in the assessment of the best interests of the children, the principles developed from Rice v Asplund.[2] The present judgment is directed to the process for the resolution of the Rice v Asplund issues, along with the Mother’s interim application.

The significance of the principle in Rice v Asplund to the current proceedings

[2]Rice & Asplund (1979) FLC 90-725

1. The principles in Rice v Asplund received a comprehensive exposition in Marsden & Winch.[3] Without reciting the Full Court’s analysis in full, a number of aspects bear particular emphasis in relation to the current proceedings.

   [3]Marsden & Winch 2009 FamCAFC 15

2. The first is that the justification of the “rule” is a “manifestation of the best interests principle” directed to avoiding a “perennial football match” of litigation with its accompanying “enormous psychological harm” both to the parties and the child.  The “rule” is also directed to avoiding the mere substitution of one judge’s discretion for another.

3. Further, citing Warnick J from SPS & PLS the Full Court affirmed:

   Warnick J had earlier said at [48]:

   In my view, reflection on the rule shows that:

   (i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

   (ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.

   (iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".

   (iv) Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits".

   (v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   (vi) "Shorthand" statements of the rule may contribute to its misapplication.

   (vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.

   We agree with those observations.  Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished.  Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits.  In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth)).

4. Importantly the Full Court observed that the manner of application of the “rule” is varied, both as to when it is applied in proceedings, and as to how the alleged facts are dealt with.  Approaches to the alleged facts span a spectrum from, at one end, taking such at their highest in order to assess whether the further proceedings are justified, to, at the other end, the conduct of a full hearing.  In between those options it was also accepted that it is open to the Court to conduct a preliminary hearing for the determination of the alleged facts, and thereby the determination of whether the further proceedings are justified.

5. It is this last approach that has been adopted in the current proceedings, resulting in the call for the parties to identify the factual matters that require resolution to settle the issue of the justification of further proceedings.  To that end 4 days have been set aside for trial of the issues that pertain to the Rice v Asplund issue and the interim orders pursued by the Mother commencing on 21 July 2020.

6. It should be noted that such proceedings fall within Part VII and so are governed by the principles, and subject to the powers contained in Division 12A.

7. Those powers include, at s 69ZQ(1)(a), enabling the Court to:

   Decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily

8. By the directions given in relation to the filing of the lists of factual matters the parties were directed to this particular power.  That power is to be exercised in support of the Principles for conducting child-related proceedings. Of those principles, Principles 1, 2 and 3 appear to have the strongest application to this case.  They are as follows:

   Family Law Act 1975 (Cth) s 69ZN

   …

   Principle 1

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

   Principle 2

   (4)  The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

   Principle 3

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

   (a)  the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and

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

9. The previous judgment of Watts J identified that the conflict between the parties, including in the litigation process, undermined the best interests of these children. The extent and scope of the proceedings to be conducted at this phase of the matter is to be directed to a determination of whether there are facts that, contrary to the potential harm occasioned to the children by further litigation, mean that the litigation should proceed as being in the children’s best interests.  Allowing the unbridled pursuit of matters that have minimal influence in the resolution of these issues, and hence allowing the amplification of that conflict, is contrary to the best interests of the children (Principle 1).  Active management of the case means that the hearing of the factual matters alleged to justify the further litigation should exclude irrelevant matters, and give the most emphasis to those matters of greatest potential importance of the issue (Principle 2). 

10. In this case the issues raised include questions of neglect and of abuse of the children, and the need for the conduct of the proceedings to safeguard against such (Principle 3) by making orders to protect against this.

11. It is necessary, then, to determine which matters are irrelevant, which require full investigation and which, due to their lesser significance to the current issue, should be dealt with summarily, in a manner consistent with the obligations imposed by s 69ZN.

12. By directions given on 12 March 2020 the parties’ attention was drawn to this issue.  Each was directed to file and serve a list of the factual issues each asserted was necessary to resolve to determine the Rice v Asplund and interim issues.  The Mother provided her document on 19 March 2020, it not being filed until 16 April 2020, the Father on 2 April 2020.  The Maternal Grandmother did not initially comply with the orders in relation to this aspect, subsequently filing and serving a list on 17 April 2020, following orders being made to extend her time to do so.  The lists are annexed to this judgments at Annexure 1.

13. It is from these lists that the relevant contested facts are to be identified.  In doing so it may be observed that the Father’s list was essentially responsive, in the sense that it raised matters that undermined either the facts pursued by the Mother, or undermined their significance.  This left, on the whole, the lists of facts compiled by the Mother and the maternal grandmother as those from which the substantive salient factual allegations could be gleaned.  This is unsurprising given that it is they who pursue the re-litigation.

14. The assessment of those lists encompassed three potential determinations.  The first was as to the relevance of the fact, the second was that the factual matter warranted full investigation, the third that the factual matter may be disposed of summarily.  It should be observed that a summary disposal does not equate to the fact being irrelevant.  If irrelevant it merits no consideration.  Rather, the distinction between a summary determination and a full investigation recognises the relative capacity of a factual issue to determine the matter at hand.

15. This involves an assessment of the potential of a particular fact to, either alone, or in combination with other facts, determine the issue. That assessment then informs the conduct of the trial and the degree to which the parties may be permitted to focus on a particular matter in the trial, including the extent to which the matter may be pursued in cross examination.

16. The factual matters raised by the Mother and the Maternal Grandmother can be grouped into like categories for economy of analysis.  A number of paragraphs are not referred to below on the basis that they appeared to constitute submissions rather than particular assertions of fact. 

17. References to paragraphs are references to paragraph numbers in the Mother’s list of issues.  Points are references to the paragraphs in the maternal grandmother’s list of issues.

Incidents involving alleged self-harm and emotional distress/ the strong expression of views

1. These issues appear at [1 – 18], [22 – 28], [30], [32 – 33], [43], [46 – 47] and [50] of the Mother’s list and at points 8 – 11 and 13 – 16 of the Maternal Grandmother’s list.  They involve considerations that are intertwined, there being, for example, an alleged relationship between strong views expressed by the children and incidents of alleged self harm.

2. In general terms it may readily be accepted that, dependent upon the factual findings made in respect of these issues they could form an appropriate basis to conduct a further hearing of the matter.  They encompass issues of alleged self-harm by each of the children and enduring and strongly expressed views.

3. These factual matters should be dealt with by full investigation with the exception of [50] which (by appropriate concession) should be dealt with summarily.

Incidents in relation to abuse

1. These appear at [29] and [35 – 36].  They are allegations of physical chastisement by the Father.  In the context of the matters dealt with in the previous section they too should be dealt with by full investigation.

Incidents in relation to educational development

1. These appear at [19 – 20], [38] and points 5 – 6. These matters were advanced as being reflective of the issues raised under the first heading. However, they can add only little to the matters under the first heading which, if established are likely to be determinative of the issue in any event. On their own they are unlikely to justify a re-litigation. They should be dealt with only summarily.

Incidents in relation to the care of the children by the Father

1. These appear at [21], [31], [39 - 40], [52] and points 12 and 17 – 18. Of these the Mother appropriately accepted that [52] was a matter to be dealt with summarily. They, in general terms, relate to allegations of inadequacies in the Father’s care of the children.

2. As with the issues relating to educational development, they are matters that would struggle, even in combination, to justify re litigation, absent other factors.  They are not matters that necessarily fall outside the spectrum of acceptable parenting in a manner as to constitute neglect.  At this stage of the proceedings, while it is appropriate to give these issues some attention, that attention is to be limited to a summary determination of the alleged facts.

Non-compliance with orders

1. These appear at [34]. They are also referred to at point 4, in the context of a legal submission by the Maternal Grandmother as to their obviating the need for a Rice v Asplund consideration (which is addressed below).  No authority was advanced in support of this proposition, other than to direct attention to the capacity of a court to amend orders in the context of an allegation of breach of orders.

2. As noted above, the “rule” is an aspect of the paramountcy of the best interests of a child.  Orders amended following a finding of contravention are only amended in accordance with best interests.  The “rule” is not necessarily excluded by virtue of the proof of contravention, although its application will vary.

3. The Mother appropriately conceded that the alleged failure to disclose addresses by the father is a matter that can be dealt with summarily.  It is not a matter that calls for full investigation as the nature of the alleged breaches would be insufficient to justify a full rehearing.

Interference with time with the Mother

1. These appear at [37], [41] and [44].  They are matters that should be dealt with by full investigation due to their potential interaction with the first category of matters.

Sexualised remarks

1. This appears at [42]. It was appropriately conceded to be a matter warranting summary consideration only, given the Mother’s concession that she did not consider the matter to be relevant to a sexual risk.

Involvement of the maternal grandmother

1. This appears at [45], [51] and more generally in the Maternal Grandmother’s list.  It is a matter that should be dealt with summarily, there being no explanation as to why the Father’s alleged extensive involvement of the Maternal Grandmother points to a reason to re litigate the arrangements for the children.

Other matters

1. At [48] the Mother asserts an occasion when B was clingy toward her.  This is a matter that at present warrants only summary consideration.

2. At [49] the Mother generally raises a failure of the Father to permit the children to contact her “when they need to.”  As currently expressed it is a matter that requires summary attention at this stage, as was conceded for the Mother.

3. At [50] the Mother raises the issue of whether the relationship between the children and the Father has progressed in the manner anticipated in the previous proceedings.  To the extent that this becomes important it appears more to be a submission to be drawn from the other evidential matters, and was again appropriately conceded by the Mother as being a matter to be determined summarily.

Mother’s current living arrangements

1. At point 7 the Maternal Grandmother raises a change in the Mother’s relationship and living circumstances, being a re-partnering in the United States.  This is a matter for summary attention in the context of the current issues.

Matters arising in the previous proceedings

1. At points 1 – 3 the Maternal Grandmother pointed to three matters that she indicated were deficiencies in the original hearing of the matter before Watts J, referring to Evatt CJ in Rice v Asplund.  In dealing with the original hearing in the context of the “rule”  developed in that case Her Honour said:

   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

2. What was being identified by Evatt CJ was not a matter of discontent in the running of the trial (such matters are to be corrected by appeal), but the non-disclosure of a material factor at trial.

3. The Maternal Grandmother conceded that she was a party to the proceedings before Watts J, describing herself as the then primary carer for the children.  She acknowledged that, despite being a party she attended only a small portion of the proceedings.  The matters advanced by her are discontent about the conduct of the trial in the context of her partial participation.  They are not what was being referred to by Evatt CJ.  Nothing in her description renders the complaints as capable of impacting a determination of whether there should be further litigation of the matter.  They are irrelevant to the current issue.

The maternal grandmother’s submission

1. It should be observed that the Maternal Grandmother also submitted that changes in the children’s schooling and the formation of a relationship between the Mother and her current partner would be sufficient to justify a further hearing.  This was in part said in reliance upon the facts in Rice v Asplund.  It should be recognised that each case will turn on facts that are particular to the children involved in the particular case.  Rice v Asplund should not be understood to have bound future courts as to such factors and, in this case, those factors as identified by the Maternal Grandmother could have, at best, limited influence on the determination and so should be dealt with in a summary manner.

Conclusion

1. Directions will be made identifying which matters require full investigation and which require only summary attention in order to resolve the Rice v Asplund  and interim orders sought.  This will then inform the manner in which those areas may be dealt with in the hearing of the matter, including the extent to which they may be the subject of cross examination.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 7 May 2020.

Associate: 

Date:  7 May 2020

Annexure 1 List of factual issues identified by the parties

List of issues identified by the Mother

A. Affidavit of Ms Russell filed 28 January 2020

1. Paragraph 9 (a): In October 2019, A said to the Mother during telephone time 'Mum what age can I choose where I want to live?' If the children express a desire to live with the Mother then the Father cuts off communication with the Mother.

2. Paragraph 9 (b): In November and December 2019 A said to the Father during times she was on the telephone to the Mother 'Dad when can I go live with Mum?'

3. Paragraph 9 (c): During November and December 2019 B started verbalising his wishes in the presence of the. Respondent saying 'I hate you, I hate you, I hate you, I want to live with Mum'.

4. Paragraph 10: On 8 December 2019 A self harmed by cutting her face three times using a knife from the Maternal Grandmother's kitchen.

5. Paragraph 13: On 15 December 2019 A sent an iMessage to the Mother with a photo of herself holding a kitchen knife up to her face and threatening to cut herself saying by text 'So I am going to kart [sic] myself'. A sent a second photo with a knife on her bed next to her shirt.

6. Paragraph 23: A says to the Mother:

   a.   'I prefer to end it rather than return to Australia'

   b.   ‘Nobody knows how difficult my life is.  I want to live with you.  I am so unhappy.’

   c.   ‘Because I keep telling people I don’t want to live with Dad, that he hurts us and he doesn’t love us or look after us.  I just want to live with you and I don’t know what to do.’

7. Paragraph 24: On 10 January 2020 A wrote on her wrist 'I want to die ' and following the incident of 10 January 2020, A again wrote ' I want to die' on her arm. There have been three times that the Mother has approached A and observed that she has written on herself words to the effect "I want to die'.

8. Paragraph 25: On 17 January 2020 A says to the Mother:

   a.    'I see myself dying and you are too late to save me '

   b.    'I see myself getting up on a chair and there is a rope and I put the rope around my neck and stand on the chair and then put the rope over a fan and hang myself. I find it really difficult to talk about as I am really scared'.

9. Paragraph 26: On 18 January 2020 A said to the Mother 'I want to die. I see myself walking in front of a car and dying'.

10. Paragraph 27: During the 2019/ 20 holidays A said to the mother 'I am seeing things that other people can't see. I see a scary doll with blood all over her and her name is Annie. She is coming to get me and she wants to die. Sometimes I just see blood everywhere, it drips off the ceiling, doors and everywhere '.

11. Paragraph 28: During the 2019/20 school holidays A and B said to the mother 'All ·we do is watch scary movies at Dad's. We watch people die and Daddy watches them all night and it keeps us awake '.

12. Paragraph 29: During the week starting 13 January 2020 the Mother observed A staring blankly over the edge of the 15th floor balcony and when the Mother asked A what she was doing, A replied "I want to die'. During the 2019/20 holidays A said to the Mother 'I would rather di e then return to Australia ' .

13. Paragraph 30: During the 2019/20 school holidays the Mother and her Partner Mr QQ employed a Nanny to provide care to A and B, Ms UU, who informs Mr QQ by text message that B informed her that A was ' cutting' herself and saying that she "wants to die", because she wants to live with her Mother.

14. Paragraph 33: During the 2019/20 school holidays B had telephone time with the Father and says to the Mother at those times 'I hate him '.

15. Paragraph 34: During B's telephonetime with the Father, the Mother overhears B say to the Father 'I hate you and I don't want to live with you anymore. I want to live with Mum'.

16. Paragraph 34: The Mother provides incentives to B such as time on the iPad, food and pool time to ensure that B has telephone time with the Father.

17. Paragraph 35: During the 2019/2020 school holidays the Mother has observed B self harming as he stands against the wall and bangs his head into the wall repeatedly and when questioned by the Mother B says ‘I don’t want to go back to Australia.  I hate Dad.  I want to live with you’.

18. Paragraph 38: During the 2019/20 school holidays the children said to the Mother:

    a.    ‘Dad takes away our iPads and switches off the internet so we can’t contact you.’

    b.    ‘Dad checks all of our messages before we can send them and he won’t let us send the ones where we want to tell you everything’

    c.    B said to the Mother ‘If I try to call you Dad gets really angry and takes away my iPad and switches off the internet.

    d.    A said to the Mother ‘Dad hit me with the iPad when I tried to call you’.

19. Paragraph 41: A received the following grades for the 2019 school year:

    a.In Semester 1 :

    i. ' Developing' for her literacy with 'Always applying '

    ii. 'Developing' for mathematics with 'Always applying '

    b.In Semester 2: A Grade C for her literacy

20. Paragraph 42: B received the following grades for the 2019 school year:

    a.In Semester 1 2019 he was marked as 'Developing' across English, Italian, Mathematics and Integrated Learning;

    b.In Semester 2 2019 he achieved:

    i. a Grade of 'D' across English and Italian;

    ii. a Grade of 'C' across Maths, science, Humanities and the Arts;

    iii. a Grade of 'B' across Technology.

21. Paragraph 49: The children have informed the Mother that they have not been to the dentist and the Mother has observed that B has a rotten back tooth and the children have informed the Mother that We don 't really brush our teeth that often. Dad doesn't remind us to '.

B. Affidavit of Ms Russell filed 19 February 2020

1. Paragraph 6: Changeover took place on 1 February 2020:

   a.Whilst waiting for the Father to collect the children at changeover the children were requesting to remain in the Mother' s care.

   b.A repeatedly asked the Father to allow the children to remain with the Mother.

   c.B was visibly upset and raised his voice at the Father saying I want to stay with Mum. Go away. I don't want to live with you.

   d.When the Respondent sought to pick B up, B kicked his suitcase into the Respondent.

2. Paragraph 7: At changeover on 1 February 2020 B sat on the floor of the Sydney International Arrivals Terminal sobbing and clung to the Mother for approximately 30 minutes and when the Mother sought to put the children into the Father's care, B made a further attempt to return to the Mother's care and the Father then physically restrained B. The Father said to the children he was not sure when they would see the Mother again.

3. Paragraph 18: On 15 February 2020 A said to the Mother:

   a.    ‘I told my teacher that I want to die’.

   b.    ‘Nobody is doing anything about it.  The teachers don’t do anything.  I have told them everything.  I have told them I see blood everywhere, but they don’t do anything.  They tell me that I just have to tell them when I feel like a rest or when I want to talk to them again.  I want to tell the Court what I want.  When can I tell the Court what I want?’

4. Paragraph 19: On 14 February 2020 A and B said to the Mother:

   a.    'Dad has been really mean since we got back. He's really angry at us'.

   b.    B said 'I am being mean back to him. I am kicking him I am so angry and I am hitting him. I tell Dad I don't want to live with him but he says we have to. '

   c.    A and B said 'We can't really tell Dad how we feel and what we want. We have to pretend to be happy and okay about things because he gets angry at us and hits us'.

5. Paragraph 22: On 15 February 2020 A and B said to the Mother:

   a.    'Why do we have to go back and live with Dad? You don't love us because you left Dad.  We don't want anything to do with him either'.

   b.    A said 'I would rather die than go back to Dad. I want to speak to the Court. I want my wishes heard. It's affecting us. Nobody is listening. Even another day is too long.  I have given up. I just want to die. '

C. SUBPOENA MATERIAL

Documents produced on Subpoena from the ACT Community Services Directorate

1. A notification was made that A gave a school presentation on PowerPoint stating that she wanted to die.

Documents produced on Subpoena from the L Primary School

1. Notes made by the school counsellor on 18 December 2019 identify that A made seven (7) cuts to her face.

2. Notes from the school counsellor made in 2017 identify B reported that the Father had been hitting him.

D. CORRESPONDENCE

1. Letter from FitzGerald Lawyers to the Father dated 2 March 2020 stating:

   a.    That the Father offered to buy A a guinea pig as a therapy pet and that B said to the Mother that the guinea pig will be a replacement sibling for him ‘for when A killed herself''.

   b.    That both children made a request to the Mother during their time with her on the weekend commencing on 29 February 2020 to 'hurry up' and obtain fresh orders so that they can live with her as soon as possible as they 'cannot hold out any longer'.

E. ADDITIONAL MATTERS

Affidavit of Ms Russell filed 28 January 2020

1. Paragraph 17: Father informs the Mother that the school Psychologist encouraged him to spend more one-on-one time with A

2. Paragraph 24: A zones in and out of different moods and the Mother has observed her becoming withdrawn, sitting by herself, hunching over and curling her body into a foetal position.

3. Paragraph 29: During the week of 13 January 2020, A said to the mother approximately 20 times "I want to die '.

4. Paragraph 32: The Father has not informed the Mother of his last two addresses before he moved as is required by the Order. He has subsequently informed the current address on 2 February 2020 but never informed the Mother of the previous address. In the event that the children contact the Mother in distress she has no way of contacting emergency services.

5. Paragraph 36: A informed the Mother that she had told her teachers, school counsellor and Ms AB that the Father is hitting her.

6. Paragraph 37: During the 2019/20 school holidays B informed the Mother that he had informed his teachers that the Father is hitting B and that the father subsequently hit B and punished B for informing the teachers and telling him that he was not allowed to tell people that he was being hit.

7. Paragraph 37: During the 2019/20 school holidays A and B inform the Mother that 'Dad is behind the phone every time you talk to us. We can't say anything that we really want to say' and B said 'Dad tells me things that I am supposed to say to you and he tells me questions that I am supposed to ask you'.

8. Paragraph 40: During the 2019/20 school holidays the Mother observed that A and B have very poor reading ability.

9. Paragraph 48: During the 2019/20 school holidays the Mother observed that B's every day shoes are too small for him and his second toe is bent from pressure being put on it.

10. Paragraph 50: B informed the Mother that he has an infection in his penis from poor hygiene and he requested the Father to take him to the doctor but that this was not done for an extended period causing B pain and a deteriorating condition.

11. Paragraph 51 (a) – (f): the Respondent has not complied with the 2016 Order as is required including failing to comply with order 28 to facilitate the children contacting the Mother.

12. Paragraph 51 (g): A has made two sexualised remarks in relation to the Respondent.

B

1. Paragraph 15: B identifies that the Respondent is taking him to a psychologist without the Mother's knowledge.

2. Paragraph 16: B identifies that he is too scared to provide information to the Mother as the Father is listening to the phone conversations between the Mother and B.

Affidavit of Ms Russell filed 19 February 2020

1. Paragraph 9 and 14: The Father offers the children to the Maternal Grandparents if he cannot care for them and not the Mother.

2. Paragraph 12: On 5 February 2020 the Mother spoke with the children and when B overheard A say 'Daddy won't let us go to you this weekend' he started crying and refused to speak with the Mother.

3. Paragraph 17: In February 2020 A said to the Mother 'I want to live with you. I am scared of Dad and I also don't want to hurt Dad's feelings, but I want to live with you'.

4. Paragraph 21: On 15 February 2020:

   a.    the Mother observed the children to be clingy towards her.

   b.    B was by the Mother's side the whole time and would not let the Mother out of his sight and did not want the Mother to venture far away from him.

   c.    B refused to play T-ball as he did not want to leave the Mother's side.

5. Paragraph 29: The Father does not allow the children to contact the Mother when they need to

6. Paragraph 32: The children's relationship with the Father has not progressed in the manner it was anticipated by the 2016 Orders.

7. Paragraph 33: The Maternal Grandmother has provided consistent care for the children in excess of what was provided for in the 2016 Order.

Affidavit of Mr QQ

1. Paragraph 10: During the 2019/20 holidays, A reported to the Mother's partner Mr QQ, that on an occasion she was ill at school the Father collected her from school and took her to the pub where she sat on a chair whilst the Father was drinking with his friends.

List of issues identified by the Maternal Grandmother

Existing Orders made without all relevant information before the Court" – factors not disclosed at the previous hearing" to be considered by the Judge in his reasons Evatt, J

1. The existing Orders made by Justice Watts on 20 September 2016 were made by the Court without any evidence as to the best interests of the children or the wishes of the children being sought or obtained from Ms Russell Snr who is the maternal grandmother and who was at that time the primary carer of the children. Refer paragraph 3 Affidavit.

2. The evidence of Ms Russell Snr was not part in the Family Report.

3. There was no request from the Child Representative to Ms Russell Snr as to the best interests of the children or the wishes of the children. The Child Representative did not meet the children for the entire duration of the proceedings.

Breaches in Contravention Orders

1. There are breaches of the Existing Orders disclosed in the contravention Orders. There is no limit upon the Court to vary parenting Orders pursuant to section 70NBA of the Family Law Act 1975 regardless of whether the contravention is proved.

Changes in the facts

Schooling B

1. B has commenced Primary School. B changed from F Preschool an English speaking Primary School in 2016 to L Primary School which is bilingual in 2017. At L Primary school B was changed from the … stream for 2017 to 2019 to the English stream for 2020.

Schooling A

1. A has changed schools in 2017 from F Primary School to L Primary School which is bilingual.

Relationship of Mother

1. The mother has a formed a long term relationship with Mr QQ as her partner and the step father to the children and his children. The mother offers a warm and stable family relationship which the children have experienced during periods in the United States and in which they seek to reside.

Best interests of the child - the need to protect the child from any harm

1. The threats by A to harm herself and the attempts to harm herself so far and the fear that she will seriously harm herself in the future are of very great concern.  Refer paragraph 23 Affidavit.

Psychological basis of A’s desire to self harm

1. The psychological basis for A's desire to self harm require proper investigation in an environment where A is free to speak without fear of reprisal. There has been no investigation or professional assistance obtained for A until the commencement of these proceedings. The father has been present in all consultations that have occurred since these proceedings. The father's practice of "punishment" if statements are made to which he disagrees make the results from consultations with the father, the child and a professional an unreliable basis upon which the Court should make any Orders.

Child's views

1. The children have expressed to the maternal grandparents their desire to live with their mother consistently since 2016. A said to Ms Russell Snr "why didn't the Court ask me" when referring to the residence Order. B said to Ms Russell Snr "I want to be with my Mum." There are many more examples of these statements.

Children's desire to relocate to the USA

1. The children have consistently expressed the desire to relocate to the United States to reside with their mother and her partner.

Warm family environment

1. The children spent the first 6 and 4 years of their lives in a warm family environment with mother father and grandparents as part of their daily lives. Since the Existing Orders the children have lived in a solely male environment with the father. Almost all outside interaction is with male persons. Both children crave female company and companionship and they both miss their mother every day. The children look to their grandmother to provide mothering and female companionship. Refer paragraph 3 Affidavit as to role of grandmother and paragraph 7 Affidavit as to care provided by father.

Age of Children

1. A is now 10 years of age and she has matured since the existing Orders. A was 6 years of age at the time of the Judgment in 2016.

2. B is now 8 years of age and he has grown up. He was 4 years of age at the time of the Judgment in 2016.

3. Both children have consistently expressed the wish to reside with their mother before and after the hearing in 2016. There has been no change in the children's wishes. It is submitted that he children's wishes were not, however, properly taken into account in the previous Orders.

4. Further, the Orders were made when the children were young and the Orders need to be revisited now that the children are older and have reached the ages of 10 and 8 years.

Specific difficulties or hardships

1. Refer paragraph 7 of the Affidavit as to specific difficulties in the living arrangements for the children with the father to which the maternal grandparents have responded to assist the children.

Unforeseen circumstances

1. The extent of the current living arrangements as set out in paragraph 7 of the Affidavit have emerged since the existing Orders.

Grandmother's position

1. The change in the Orders sought by the mother and the children would not facilitate the grandparents in having a day to day relationship with the children. Their interests would be best served by the children remaining with the father in Australia.  Notwithstanding, it is submitted that it is in the best interests of the children and in accordance with the wishes of the children.

Substantial change test in Rice v Asplund

1. The fact that the mother has re partnered (Mr QQ), that one child (B) has commenced school, that both children (A and B) have changed schools and that one child (B) has changed from learning in English only at preschool, to learning in … and English and then back to learning in English only would be enough to satisfy the Rice v Asplund test.

1. "In this case, the fact that the mother had gotten re-married, and the fact that the child was about to start school were enough to satisfy the substantial change requirement." Evatt, CJ.

2. The references to the paragraphs in the Affidavit are to the Affidavit sworn on 11 March 2020 and filed in the Family Court on 13 March 2020.

List of issues identified by the Father

Ms Russell

1. Whether either or both of the applicants have demonstrated any, or any significant, change in circumstances which would require the court to examine the custody and care arrangements for A and B, given that:

   a.    The absence of scarring on A's face demonstrates that the injuries alleged by Ms Russell, if they ever existed, were superficial, barely noticeable, suggesting that Ms Russell's claims constitute a deliberate and extreme overreaction to a minor domestic incident which occurred while the children were in the care of Ms Russell Snr - not myself - claims deliberately inflated to undermine the 2016 orders. This is supported by the fact that Ms Russell Snr did not report the initial incident to me, nor did she consider it necessary to give first aid, even to applying a Band Aid, or to seek medical care.

   b.    If QQ 1-1 of Mr QQ's affidavit of 18 February 2020 and paragraph 3 of Ms UU's affidavit of 18 February 2020 are to be believed, the notion of A "cutting" herself seems to be based solely on B's description and on responses to leading questions by Ms UU, a description which, in all probability, resulted from Ms Russell's coaching and the customary pleasure a young boy takes in tormenting his sister.

   c.    The relevant health professionals have advised that the superficial single scratch suffered by A, allegedly from 8 December 2019 incident at Maternal Grandmother’s, and the photo of A with a knife after a dispute with B over the breaking of a lollipop on 15 December 2019, and allegedly on other occasions, occasions, are not matters for concern, but a normal reaction to her unhappiness at the separation of her parents and at the ongoing acrimony arising therefrom, triggered by the dispute with B and the lack of adequate supervision by Ms Russell Snr - an unhappiness Ms Russell is deliberately and heartlessly exacerbating for her own benefit.

   d.    Ms Russell has not provided any evidence of specific instances, perhaps reflecting her past experience that specific instances can, and will, be refuted.

   e.    The incidents Ms Russell relies on occurred while the children were in the care of Ms Russell or her family, not myself, and seem to reflect a lack of any, or any adequate, supervision by the carer. She appears to suggest that I am responsible for the shortcomings of her family. The self-harm claims have only been made while in the care of Ms Russell and only made after I refused her offer to retain the children in the USA as affidavit of Mr Withers of 6 March 2020 refers.

   f.    The absence of further similar behaviour by A and that her and B have ongoing psychological support through BC Group to assist them both in dealing with the dysfunctional relationship of their parents including the ongoing litigation.

   If not, whether this application should be dismissed.

2. Whether this application is prompted, not by any genuine concern for the safety and wellbeing of the children, but by Ms Russell's desire (as demonstrated in her application to the Californian Court) for me to subsidise the extravagant lifestyle of herself and her current partner.

3. Whether the children should be protected from being exposed to ongoing litigation. Affidavit of Mr Withers of 6 March 2020 refers to the significant ongoing litigation since the international child abduction in 2014, which has almost entirely been dealing with claims from Ms Russell of events that never happened, with a chronology at Annexure A and the litigious pattern of behaviour of Ms Russell. Any outcome that avoids further Court involvement or litigation is in the children's best interests. Affidavit of Mr Withers of 6 March 2020 refers to the risk identified by Justice Watts in the 2016 reasons for judgement of "psychological harm to the children arise from the current totally dysfunctional relationship between the children's parents" in which these proceedings on top of all prior are exacerbating and causing the behaviour of A. The matters raised at paragraph 5 only further degrade the relationship between the parents.

4. Whether the children would benefit from a period of time without ongoing litigation between the parents. Annexure A of the affidavit of Mr Withers of 6 March 2020 refers to the significant litigation between the parties.

5. Whether Ms Russell is a credible witness given her established record of unreliability as a witness, of concocting "evidence", of constantly artificially inflating the significance of ordinary incidents, claiming they are symptomatic of deep seated malaise, defaming me, all without any credible supporting evidence, and of making unsubstantiated and often hysterical claims, a pattern of behaviour identified in Affidavit of Mr Withers filed 6 March 2020, and consequently:

   a.    Whether there is any, or any sufficient, evidence to support Ms Russell's claims about the wishes of the children or Ms Russell's claims as to their statements, given they were only raised in Affidavit material to prevent a return of the children to Australia again, and based on her attempts to delude them about the likely realities of living with her in a dangerous and alien city and country. I do not believe that she could, or intends to, give any more attention to the children if she works full time.

   b.    Whether there is any, or any sufficient, evidence of a threat to A or B's health or wellbeing (which are my highest priority) except when in the care of Ms Russell and Ms Russell Snr.

   c.    Whether there is any, or any sufficient, evidence of specific incidents where Ms Russell alleges that I have hit B, have shown the children "horror movies" or done any of the acts Ms Russell complains of.

   d.    Whether there is ~my, or any sufficient, evidence of Ms Russell's insinuation that I drive under the influence of alcohol.

   e.    Whether there is any, or any sufficient, evidence of any ill effects on the children from any of those alleged incidents, whereas, on the contrary, I have seen the real torment and uncertainty Ms Russell and Ms Russell Snr have selfishly inflicted on the children, as also witnessed by the School Staff.

   f.    Whether the children's education has been in any way compromised, bearing in mind that their assessments at L Primary School are objective, improving and recent, showing a steady improvement over the dated assessments at F Primary School.

   g.    Whether the strains in the children's lives are not primarily attributable to Ms Russell and Ms Russell Snr's incessant attempts to undermine the orders of this court and thus any feeling of stability and love they may enjoy, notably by offering unrealistic inducements and creating expectations about their lives with Ms Russell as the "fun" parent.

6. Referring to the List of Issues dated 19 March 2020 from Fitzgerald Lawyer:

   a.    I deny the truthfulness of the Ms Russell’s assertions regarding conversations with the children.

   b.    I note that the applicant has offered no evidence that the children's educational standard has declined as she seeks to imply in Paragraphs 19 and 20.

   c.    To the best of my knowledge and belief, A has never cut her face, certainly not to the point of drawing blood, let alone 3 times at Ms Russell Snr's home nor 7 times in total, as alleged in paragraph 28 of opposing List of Issues and note that no physical evidence suggests this is not the case. Paragraph 28 of opposing List of Issues is a misrepresentation of the notes made by the school counsellor.

   d.    I am required to inform Ms Russell of treatment for health emergencies, not colds, normal visits to the dentist or normal injuries like those occasioned by falling off their bikes.

   e.    I have, unlike Ms Russell, always notified her of any permanent or long-term change of address.

7. Whether the evidence of Mr QQ is credible, given the inconsistency between the affidavit evidence, evidence provided to the Californian Court and the claims made by Ms Russell.

8. Whether the evidence of Ms UU is credible, given that she claims to record the exact words of a passing conversation with the two children on 13 January 2020, the first of only four days she claimed she was employed to care for them (Paragraph 5) on a casual basis (Ms Russell claiming 8 days in 27 January 2020 Affidavit and Mr QQ claiming conversation was on 18 January 2020 in email produced by Ms Russell at Exhibit MsR-1-3 of 27 January 2020 affidavit), yet even she clearly regarded the claims as extraordinary and does not refer to any corroborating physical evidence in the form of scars etc, thereby demonstrating how superficial the alleged scratches, if they occurred, have been. I know my children and can attest that they would not, without prior coaching by Ms Russell, have spoken to a stranger in this fashion. I believe Ms UU’s affidavit to be an ex post facto reimagination of a meeting deliberately engineered by Ms Russell for the purpose of creating what she regards as "evidence". ·

9. Whether Ms Russell offers the children a responsible home or educational environment appropriate to their capacity and aspirations, given the instability of her relationships, her inability to provide them an adequate home, her inconsistent statements about her work intentions and the fact that she has made no specific or unambiguous proposals for the medical and domestic care, and education, of the children in a country notorious for the inadequacy of its health care service for other than the extremely rich, its culture of violence and levels of substance abuse, given that her affidavit filed in Californian Court indicates:

   a.    neither her nor her current partner have any assets or income.

   b.    despite this, the Californian Court filings claim them to be living an extravagant, if peripatetic, lifestyle according to the demand of her various relationships, a lifestyle which she claims has precluded her from initiating divorce proceedings because of residency requirements - this despite the fact that she applied for a divorce in California, but has not pursued the application: no order has been served on me suggesting that the court denied her residency qualification or has dismissed the application.

   c.    Ms Russell has no commitment to Mr QQ beyond casual co-habitation and has taken no credible steps which would allow her to marry any of her partners.

   d.    Mr QQ's evidence that A and B merely tolerate his children.

10. Whether Ms Russell's behaviour indicates any genuine concern for the health, safety and wellbeing of the children as illustrated by her most recent proposal of 18 March 2020 to remove the children from school, take them to City VV where together with Mr QQ's children, they would be taught by an unnamed tutor with no listed qualifications. Similarly, no details were provided about health precautions or arrangements for health care in the US, despite the obvious danger of protracted air travel, exposure to Mr QQ's children whose mother is in isolation from coronavirus exposure and the relative incidence of COVID 119 – [a website] (accessed 21 March 2019) indicates 58 cases in the City VV, WW County as at 7pm, 20 March 2020 as opposed to 9 in Canberra as reported in (accessed 21 March 2019). All this presumably so that she can resume her lifestyle. I have no reason to accept that she has any genuine concern for the children. Luckily, Ms Russell's proposal was overtaken by the current travel restrictions, which avoided her characteristic abusive behaviour towards me and her delusional claims to proprietorial rights over A and B. She has, however, demonstrated her priorities by returning to the United States to care for Mr QQ's children and without paying outstanding child support.

11. Whether Ms Russell's objection to my attitude "to mother's time with the children since mother has been staying in Australia in 2020" is relevant. I am not required to like her - she has done far too much to myself and the children to warrant that- but to comply with the letter and spirit of the 2016 orders, which she, in turn, constantly ignores (for example, by failing to give the required notice of travel arrangements, time with the children and address) and seeks to circumvent. The 2016 orders have been punctiliously complied with by myself, yet she takes every opportunity to abuse me and undermine the care of the children. I have recently been subjected to constant harassment by Ms Russell and her solicitors.

12. Whether, given Ms Russell's record of the abuse of court process in two countries, and her constant infringement of the 2016 orders, for the court to make appropriate orders under section 102QB of the Family Law Act 1975 for the protection of the children and myself from her constant litigation.

13. Ms Russell proposes to disrupt the children's education, to separate them from their friends and family, has given contradictory statements about her intentions as to work and their education and has failed to provide any real information about her intentions With regard to the children's care or education, while, alarmingly and significantly, she seeks to remove them from the jurisdiction of this Court.

14. Whether the Court should consider additional matters raised in the List of Issues of Ms Russell that were not raised on 12 March 2020, as noted in Orders 8 of 12 March 2020 Orders, and those also specifically mentioned at Parts D (30b) and E and in email to Associate to Justice Gill of 19 March 2020 at 5.50pm. This pattern of behaviour, of raising further and further claims, identified in my Affidavit filed 6 March 2020, was experienced in all Australian and American Courts we've been in and continues unabated. I object to all matters raised by Ms Russell in addition to those outlined at Court on 12 March 2020.

15. Whether Court time and attention should be devoted to events that haven't happened, again.

Ms Russell Snr

1. Whether the application by Ms Russell Snr is an abuse of the process of this Court, given that I have not sought any variation to the 2016 Orders and that Ms Russell specifically states that she wishes to maintain contact between the children (A and B) and Ms Russell Snr, circumstances which indicate that Ms Russell Snr's application is a scarcely disguised attempt to bully me in defending the questionable allegations made by Ms Russell.

2. Whether the application by Ms Russell Snr should not, therefore, be dismissed.