Russell and Withers & Anor (No 2)

[2020] FamCA 640

FAMILY COURT OF AUSTRALIA

RUSSELL & WITHERS AND ANOR (NO. 2) [2020] FamCA 640

FAMILY LAW – CHILDREN – Interim application – consideration of the rule in Rice & Asplund – best interests of the children – where sufficient changed circumstances to satisfy the rule in Rice & Asplund

Marsden & Winch [2009] FamCAFC 152
Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Russell

1st RESPONDENT: Mr Withers

2nd RESPONDENT: Ms Russell Snr

INDEPENDENT CHILDREN’S LAWYER: Ms J Lloyd

FILE NUMBER: CAC 223 of 2015

DATE DELIVERED: 23 July 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 23 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Neil, QC

SOLICITOR FOR THE APPLICANT: Horowitz & Bilinksy

SOLICITOR FOR THE 1ST RESPONDENT: Self-representing

SOLICITOR FOR THE 2ND RESPONDENT: Self-representing

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Dr Behrens

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

Orders

1. I discharge the order of 7 May 2020. 

2. I discharge Order 1 of the orders of 12 March 2020.

3. The proceedings are adjourned for an interim disposition and for the making of trial directions to 11 am on Friday 24 July 2020.

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 223 of 2015

Ms Russell

Applicant

And

Mr Withers

Respondent

And

Ms Russell Snr

2^nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The current proceedings follow a final determination at trial by Justice Watts in 2016.  Prior to and following that determination there were various applications made in other courts.  Justice Watts’ orders came in a context where the Mother was living in the United States of America (the USA) and the Father in Australia.  He made orders that the children would live with the Father and spend time with the Mother.  Central to his conclusion was that the best interests of the children were met by the better prospects of B and A having a relationship with both parents if they were to live with the Father, rather than with the Mother.  He concluded that the Mother would thwart a relationship between the Father and the children. 

2. The matter is now returned to this Court on application made by the Mother who seeks final orders that the primary residence of the children be with her in the USA.  She is supported in that pursuit by the maternal grandmother, who is also a party to the proceedings, the maternal grandmother being subject to orders such that the children spend time with her under the current arrangements. 

3. In pursuit of her claim the Mother relies on a suite of factual matters, primarily coming from December 2019 into early 2020.  Those factual matters encompass allegations of self-harm on the part of both A and B, threats of self-harm by A and the allegation that both children express strong views that they wish to live with the Mother. 

4. The Father has opposed a move of the matter towards a final hearing on the Mother's application, invoking the principles of Rice & Asplund.[1] 

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

5. The matter was set down to hear the Rice & Asplund issues as a threshold matter and directions were made as to discrete factual areas to be determined.  From there it was to be determined whether or not the Mother's application was to be refused at the threshold stage or would proceed to a full hearing of the matter. 

6. The parties prepared for the threshold determinations which were listed for a period of four days.  Included in that preparation was the issue of subpoenas and the preparation of a family report.  On day three of the four allocated days, after a day plus of dealing with disputes over the material to be relied upon, involving the admissibility of various aspects of the material, and compliance and non-compliance with directions, including the significance of prior determinations including Justice Watts in relation to credibility, the Independent Children's Lawyer (the ICL) made an application to discharge the orders for a threshold resolution of facts and the Rice & Asplund consideration and to reserve the Rice & Asplund consideration to the end of a full trial in the matter.  The ICL identified a list of evidence primarily being evidence brought by neither party and primarily, although not in full, being the product of the children being involved in counselling by the Father.  The ICL submitted that while it had been reasonable to set the matter down for a determination of discrete factual matters those have been overtaken by the material now coming before the Court.  That material includes an undisputed threat of self-harm by A, as evidenced by a selfie.  That material also included records of other threats of self-harm by A and the assessment of A as being vulnerable and depressed.  They also involve concerns expressed by the Family Report Writer who prepared the report for this phase of the proceedings, which included her assessment of the children expressing strong views that they wished to live with the Mother.  The Independent Children’s Lawyer identified that the contentious matters between the parties, which were encompassed by at least the discrete factual matters that have been identified, along with the less contentious matters as set out immediately above, could not be resolved in a sense that would enable the best interests to be determined for the children without the full context of a trial because they could not be resolved as to their significance without also resolving their context. 

7. It might also be observed that the matters raised, both the contentious matters that were identified for resolution along with the latter matters raised by the Independent Children’s Lawyer, are indicative of serious issues that require that their resolution take place within their context. 

8. The difficulty identified by the Father is that to continue without resolution of the Rice & Asplund issue as a threshold matter imposes further burdensome litigation on the parties and implicitly its attendant burden on the children.

9. The principles in Rice & Asplund were explained in the case of Marsden & Winch.[2] In Marsden & Winch the Full Court set out that the purpose of the rule is to discourage endless litigation and what has been described as the perennial football match between parents.  Marsden & Winch observes that embarking on litigation once a final determination has been made is a serious step.  The Court inherently recognised the terrible burden of litigation in characterising it in this manner.  The Court identified that what it requires is a change of circumstances sufficient to justify the step being taken.  It also noted that such a requirement of such a change of circumstances is a manifestation of the best interest principle and itself concerns an assessment of the merits of the case.  The Full Court further observed that the manner of approach to be taken in dealing with the Rice & Asplund issue varies across a wide spectrum dependent on the features of the individual case.  It may vary from assessing the applicant's case at its highest, although untested, to making factual determinations to resolve the underlying facts to determine whether or not a further hearing is justified.  It may also involve the Rice & Asplund matters being determined as a threshold consideration through to their consideration at the close of a hearing, although it is somewhat difficult to contemplate the value of dealing with it at the close of a hearing. 

   [2]Marsden & Winch [2009] FamCAFC 152.

10. Here, it had been sought by the Father that the Rice & Asplund issues be dealt with as a threshold matter, and that there would be a resolution of those factual matters said to constitute the change of circumstances.  From there it could have then been determined, it seemed, whether or not a full hearing was required.  However, in this case the facts said to justify the full hearing of the matter have expanded despite their careful earlier identification.  They have expanded in particular by virtue of a subpoena directed to BC Group, who the Father has been taking the children to for their psychological support and counselling.  They have also been expanded by the conduct of the family report.

11. Each of those sources give, without being reliant on a parent's account, the impression that A has been self-harming, may constitute a risk to herself and that she is a very vulnerable young person.  They also point towards strong views being held by B and A in respect of where they will live.  Those two sources are supplemented by other material that has been identified by the ICL from the subpoenaed material.  They are also supplemented by the allegations raised by the Mother and further supplemented by those matters which are not contested.  They raise serious issues about A's mental health, her risk of self-harm, her vulnerability and both children's views.

12. The Father points to the need to avoid the burden of litigation and to let these matters work out under his care.  His case is suggestive that some of the presentation of the children flows from pressure from the Mother and the maternal grandmother.  Alternately, the Mother's case relies in part on assertions that the Father is inadequately caring for the children.

13. On either of those cases, and in any event, the seriousness of the matters raised point to the need to resolve the allegations and the inability to hermetically seal them off from the rest of the case.  Isolating these matters devoid of their own roots and removed from the soil in which they grow, cannot present a full enough picture for the Court to resolve what is in A and B’s best interests.  They cannot be resolved contextually on a threshold basis and their seriousness means that despite the heavy burden of further litigation they must be determined as a final hearing.

14. This matter calls for the discharge of the orders that were made to deal with the Rice & Asplund issue as a threshold matter and calls for the listing of the matter for hearing. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 23 July 2020.

Associate: 

Date:  24 July 2020