SKINNER & CLUNY
[2018] FamCA 478
•26 June 2018
FAMILY COURT OF AUSTRALIA
| SKINNER & CLUNY | [2018] FamCA 478 |
| FAMILY LAW – CHILDREN – Rise & Asplund issue – Whether there has been sufficient change in circumstances since final parenting orders of 2012 to justify re-litigation – Where father seeks re-litigation of parenting orders – Where mother opposes further litigation - Where child has recently been diagnosed with anxiety – Where child was very young at the time of last orders – Where parties are no longer agreeable to orders made in 2012 – Where parties appear intent on litigating indefinitely – Where considerations are finely balanced in this matter – Where it is in the child’s best interests to re-litigate the appropriate parenting arrangements for the child. FAMILY LAW – CHILDREN – Application for discharge of Independent Children’s Lawyer – Where the mother asserts that the Independent Children's Lawyer was negligent in not bringing an application in relation to the Rice & Asplund issue prior to trial and for not issuing subpoenae – Where court finds no merit in mother’s arguments – Application dismissed. |
| Family Law Act 1975 (Cth) ss 68L, 68LA, 69ZQ, 70NBA |
| Skinner & Cluny (No 2) [2012] FamCA 465 Cluny & Skinner [2017] FamCA 255 Cluny & Skinner (No2) [2017] FamCA 547 |
| APPLICANT: | Mr Skinner |
| RESPONDENT: | Ms Cluny |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Miles |
| FILE NUMBER: | BRC | 812 | of | 2010 |
| DATE DELIVERED: | 26 June 2018 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns via video link to Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 13 March 2018 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms McDiarmid |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Kelly Lawyers |
Orders
The Trial Management Hearing in this matter be resumed at 2:15pm on 1 August 2018 by Global Meet Teleconference (noting the dial in details remain the same as previously advised).
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 Skinner & Cluny 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 CAIRNS VIA VIDEO LINK TO BRISBANE |
FILE NUMBER: BRC812/2010
| Mr Skinner |
Applicant
And
| Ms Cluny |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 17 November 2017, I conducted the Trial Management Hearing of these parenting proceedings. On that occasion I ordered that:
The issue of whether there has been a sufficient change in circumstances to justify the re-litigation of the appropriate parenting orders for the child [B] born … 2009 be determined before all other issues in this case.
That hearing of that preliminary issue was conducted on 13 March 2018 by video link. However at the commencement of that hearing, I also heard and dismissed an application by Ms Cluny (“the mother”) that the Independent Children's Lawyer be discharged. I reserved my reasons for that decision, together with my decision in relation to the preliminary matter. These are my reasons for refusing to discharge the Independent Children's Lawyer, and my decision and reasons in relation to the preliminary issue.
BACKGROUND FACTS
Mr Skinner (“the father”) was born in 1969, and hence is presently 49 years of age. As at the time of the trial of the first parenting proceedings between the parties on 27 February 2012, the father was the chief executive officer of a freight forwarding business which he owns, and had been so for some time. His role required regular national and international travel.
For her part, the mother was born in 1970, and hence is 47 years of age. She is a professional by occupation, albeit at the time of the first trial before Kent J in February 2012, had not been so employed for some years.
The parties met in or around 2006, and commenced cohabitation in either December 2007 or May 2008 (the date is immaterial). They married in 2008, and B (“the child”) was born in 2009. However the parties separated less than one month later 2009, thus terminating the relationship that had been in existence for about three years.
Since separation, the parties have been in almost constant litigation in relation to property, parenting and other matters.
The first iteration of the parenting proceedings were, as I have indicated, resolved by trial in February 2012 by Kent J, accepting that in fact the parties agreed a significant number of matters, and there were only relatively slender matters left for his Honour’s determination. At the time of that trial the child was 2 years and 6 months old. I will need to consider that judgment, and the matters then in dispute, in greater detail later in these reasons, but for present purposes it is significant to note that one of the matters that was unable to be agreed by the parties was whether the parties should be obliged to attend family dispute resolution once the child commenced school, with a view to revisiting the care arrangements for the child at that point of time. That issue was resolved by Kent J against the father, who had contended for such an order: Skinner & Cluny (No 2) [2012] FamCA 465.
At the time of the first trial, the parties also had extant property settlement proceedings. Although observing that most of the parties’ costs were in respect of financial issues, Kent J noted that “the amounts of money each party has expended on legal costs to date…is nothing short of extraordinary.” Given that the parties have thereafter continued to enthusiastically litigate on several fronts, albeit most recently seemingly without legal representation, one assumes those costs have continued to grow.
As is obvious from the fact of this judgment, the first trial and judgment did not permanently resolve the parties’ disputes in relation to parenting matters, and the father commenced the present iteration of these proceedings on 10 February 2014 being less than two years after the first trial. By then it seems that the parties had concluded some of their other litigation. For instance on 16 April 2013 Bell J made orders in relation to a departure from an administrative assessment of child support, together with orders for spouse maintenance and other matters. However the father did not comply with those orders, and the mother bought contravention proceedings.
On 29 November 2012, Bell J had made final property settlement orders, together with an order requiring the father to hand his passport over to the mother’s solicitors. Whilst he did so, he thereafter falsely represented to the Department of Foreign Affairs and Trade that he had lost his passport, so as to obtain a replacement one, which he thereafter received and used for international travel.
The mother brought both contempt and contravention proceedings arising from the father’s breaches. Those applications were heard by Kent J on 16, 17 and 18 September 2015, and for reasons delivered 28 April 2017[1] his Honour determined that both were established, and adjourned the applications for further submissions in relation to penalty. His Honour then dealt with the question of penalty on 10 July 2017, and for reasons delivered 31 July 2017[2] determined, firstly, that the father should be fined $30,000.00 for contempt and secondly, determined that the amounts payable to the mother exceeded $280,000.00, but gave the father a further 24 months to discharge those obligations. In default of doing so, the father was then to show cause as to why he should not be sentenced to a term of imprisonment for three months.
[1] Cluny & Skinner [2017] FamCA 255.
[2] Cluny & Skinner (No. 2) [2017] FamCA 547.
In the course of his reasons, Kent J noted that in the proceedings before him as to penalty, counsel for the mother had made the “remarkable submission” that the appropriate penalty was imprisonment for two years, to take effect immediately.
Again, the father did not comply with the order to pay the fine within the time stipulated, although he did file an application seeking an extension of time in which to pay the fine, but somewhat inexplicably, on the same day as he filed that application, in fact paid the full amount due. In consequence, he was five days overdue in paying the fine. For reasons given on 17 January 2018 in Cluny & Skinner [2018] FamCA 15, Kent J determined that he would not direct the Marshal to bring a further application for contempt against the father, but warned him in strong terms of the need to comply with court orders.
As at the time of the hearing of the preliminary issue before me, the most recent Family Report was prepared in July 2014, although a Child Inclusive Conference was conducted on 16 November 2015 by a Family Consultant. The parties have not filed recent trial affidavits. I therefore know little of the parties’ present circumstances, but make the following observations.
The mother has now returned to her previous profession of primary school teacher. It appears as though she lives with her parents at Suburb QQ, a Brisbane suburb. The father asserts, and the mother accepts, that the child’s cousin, PP, who is about 14 years of age, has also recently commenced residing with the mother and the child’s grandparents.
As to the father, it appears that he remains engaged in business, and indeed the purpose of the 24 month period in which to pay the outstanding monies due to the mother was to enable him to pursue business opportunities to enable him to meet the arrears.
A further development recently occurred on 13 February 2018, when the father filed contravention proceedings against the mother, asserting numerous breaches of the parenting orders by her from as long ago as December 2013. That application was listed for mention only before me on 13 March 2018, albeit the father relied upon his affidavit filed in support of the contravention proceedings as part of the material read before me.
THE MOTHER’S APPLICATION TO DISCHARGE THE INDEPENDENT CHILDREN'S LAWYER
Overview
In substance, the mother asserts that the Independent Children's Lawyer negligently failed to identify that there had not been a sufficient change in circumstance to warrant the father’s re-litigation of parenting matters, and accordingly, negligently failed to bring any application to have the father’s application dismissed. She says that alleged negligence ought lead to the Independent Children's Lawyer’s discharge.
Relevant statutory provisions and legal principles
The court’s power to appoint an Independent Children's Lawyer is conferred by s 68L of the Family Law Act. It is indisputable that implicit in that power is the correlative power to remove an Independent Children's Lawyer.
The role of the Independent Children's Lawyer is articulated in s 68LA of the Act. That section uses two subheadings: the first is “general nature of role of Independent Children's Lawyer” and the second is “specific duties of Independent Children's Lawyer.” As to the former, s 68LA(2) provides:
The Independent Children's Lawyer must:
(a)Form an independent view, based on the evidence available to the Independent Children's Lawyer, of what is in the best interests of the child; and
(b)Act in relation to the proceedings and what the Independent Children's Lawyer believes to be the best interests of the child.
Sub-section (3) goes on to provide that:
The Independent Children's Lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
The “specific duties” of the Independent Children's Lawyer are articulated in s 68LA(5) in the following terms:
The Independent Children's Lawyer must:
(a)Act impartially in dealings with the parties to the proceedings; and
(b)Ensure that any views expressed by the child in relation to the matters to which the proceedings related are fully put before the court; and
(c)If a report or other document that relates to the child is to be used in the proceedings:
(i)analyse the report or other document to identify those matters in the report or other document that the Independent Children's Lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the court’s attention; and
(d)Endeavour to minimise the trauma to the child associated with the proceedings; and
(e)Facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
A number of authorities have considered the removal of an Independent Children's Lawyer, and specifically, the circumstances which may justify such a course. From those, the following points may be discerned:
·It is not inconsistent with the independent and professional discharge of an Independent Children's Lawyer’s obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by the court;[3]
·Whilst in a unique position, the Independent Children's Lawyer owes the same professional obligations to the court as does any licenced legal practitioner;[4]
·On occasion, the Independent Children's Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings;[5]
·Inevitably the role of the Independent Children's Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult;[6]
·It is not appropriate for a litigant to endeavour to micro-manage the Independent Children's Lawyer, or critique every step that they take;[7]
·It is certainly not the case that, even if an Independent Children's Lawyer does make a mistake, the court will necessarily accede to an application to have them discharged. Significantly more than that is required;[8]
·It is inevitable that the high standards of competence which the court expects of Independent Children's Lawyers are not always met. Independent Children's Lawyers are, like anybody, liable to human frailty;[9]
·A court should be slow to discharge an Independent Children's Lawyer on the basis of largely unsubstantiated complaints of one of the parties.[10]
[3] Dean & Susskind [2012] FamCA 897 and Sawyer & Sawyer [2015] FamCA 982 at [57]. See also Knibbs & Knibbs [2009] FamCA 840 at [33]-[61] approved in Paco & Racina [2014] FamCAFC 195 at [52].
[4] Knibbs (supra) and Leroux & Leroux [2015] FamCA 1128 at [31].
[5] Knibbs (supra) at [47]-[50] and Leroux (supra) at [35].
[6] Knibbs (supra) at [52]-[61] and Leroux (supra) at [39].
[7] Leroux (supra) at [218].
[8] Sawyer & Sawyer (supra) at [80].
[9] Sawyer & Sawyer (supra) at [79].
[10] Lloyd & Lloyd & The Child Representative (2000) FLC 93-045.
I should also note that the court has published guidelines for the conduct of Independent Children's Lawyers. Relevant to this application are the following points derived from those guidelines:
·The Independent Children's Lawyer is expected to use his/her professional judgment and skill, subject to any direction or orders of the court. The availability of funding is, however, a practical constraint;
·The Independent Children's Lawyer must, if satisfied that a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course;
·The Independent Children's Lawyer should seek to develop a case plan at the earliest opportunity, where appropriate in consultation with any family consultant or other expert involved in the case.
The alleged conduct
In her affidavit filed 26 February 2018, the mother sets out the basis of her application. She asserts that in a hearing before a Registrar in April 2016, she raised concerns that the father was seeking a change of primary care when there was no evidence of significant substantial change in circumstances to warrant this. She indicated that the Registrar said “that will be a matter for trial.” It was apparently at that event before the Registrar that an Independent Children's Lawyer was appointed. However that Independent Children's Lawyer was not the one before me; the Independent Children's Lawyer currently with responsibility (Ms Miles) was only appointed in May 2017 to replace the earlier appointee. By then the matter had already been placed in the trial pool awaiting trial directions.
The mother’s next criticism relates to Ms Miles’ conduct before me at the Trial Management Hearing on 17 November 2017, at the conclusion of which, after some engagement with the bench, she indicated that she would support a position that there had been insufficient change of circumstance to justify re-litigation. In respect of this the mother says “I say that Ms Miles lacks competence and was at best unprepared for the Trial Management Hearing and had not given a proper consideration to the facts. She came to a conclusion on 16 November 2017 to ask for a trial and another Family Report seemingly with no basis to do so…”
The mother continued:
The fact that Ms Miles was asking for a three day trial and another Family Report on 16 November 2017, and then at the Trial Management Hearing conceded that she would have to support an application that the case be dismissed indicates to me that Ms Miles’ views expressed on 16 November 2017 were not drawn from and supported by the admissible evidence but from her personal view or opinion of the case. It beggars belief that the Independent Children's Lawyer would carry this case on for almost two years since her appointment in May 2016, when she had no basis to do so. This, in my view, amounts to negligence and abuse of process.
After the Trial Management Hearing the mother intimated her dissatisfaction with Ms Miles in correspondence with her, and in addition to the alleged lack of preparation, specifically asserted that the Independent Children's Lawyer had, at the time of the Trial Management Hearing, “not yet subpoenaed any of the information you considered relevant.” The letter continued with the assertion:
It is my view that you are at best incompetent, lacking independence and you are not representing the best interests of [the child].
…
I object to your further involvement in this matter.
…
The Independent Children's Lawyer responded by correspondence of 5 February 2018, and in the order in which that correspondence raised matters:
·Noted that Independent Children's Lawyers frequently issue subpoenae closer to the actual hearing date of trial, rather than the Trial Management Hearing;
·Noted that in the mother’s own affidavit filed 28 May 2015 at [2] she deposed that “there has been a substantial and significant change in circumstances since the end of January 2015, in that [the child] has commenced prep at [QQ] School,” and noted in the following paragraph the mother said that the child “was experiencing high levels of anxiety around having to spend increased overnight time with his father;
·Asserted that therefore the mother’s position prior to the Trial Management Hearing was different to that which she asserted in that hearing;
·Asserted that the child’s best interests “has at all times been, and remains to be, the writer’s primary concern;”
·Denied that she had acted other than independently and impartially.
Evaluation
A consideration by an Independent Children's Lawyer as to whether or not a Rice & Asplund point should be taken is a matter of judgment, and in many cases, a very difficult one. Here, not only was the father asserting that there was a sufficient change in circumstance to warrant re-litigation, but as the Independent Children's Lawyer pointed out in her correspondence to the mother, the mother also appeared to contend that in her affidavit filed 28 May 2015.
Moreover, whilst ideally an Independent Children's Lawyer would, notwithstanding the parties’ positions, consider for her or himself whether there had been a sufficient change in circumstance to warrant re-litigation, it by no means follows that an Independent Children's Lawyer, even if of that view, would contend for that issue being determined on a preliminary basis. The authorities make it plain that it is a matter which can be considered at trial.
Moreover at [35] of the reasons of Kent J delivered 21 June 2012, his Honour observed:
I record that such a conclusion [declining to require the parties to attend compulsory family dispute resolution upon the child commencing school] is reached with some hesitation given [the child’s] tender age, but I am mindful that a substantial change in circumstances may be more readily demonstrated at some future time with respect to this case, given that this decision comes when [the child] is not yet three years of age.
Such an observation would inevitably give an Independent Children's Lawyer some hesitation before bringing any application based upon a Rice & Asplund point.
Moreover, it is the case that Ms Miles has only been the Independent Children's Lawyer since 25 May 2017. By then the matter had been in the trial pool waiting trial directions for over a year.
I am far from satisfied that Ms Miles’ failure between May 2017 and November 2017 to bring an application of some species based upon a Rice & Asplund point demonstrates a lack of competence. If I am wrong as to that, then it is certainly not a mistake that warrants her discharge.
The mother’s contentions in relation to the Independent Children's Lawyer failure to issue subpoenae are without merit. As is well known, Independent Children’s Lawyers frequently issue, or update, subpoenae on the eve of trial, to ensure that they capture the most up-to-date information with a minimum of expense. That is common sense.
Finally the mother’s assertion that somehow or other the Independent Children’s Lawyer was not impartial and lacked independence simply has no basis on the material before me.
For these reasons I dismissed the mother’s application to discharge the Independent Children’s Lawyer.
THE RICE & ASPLUND PRELIMINARY ISSUE
Overview
As has been seen, the mother now asserts that there is an insufficient change in circumstances relating to this child to justify the father’s further re-litigation in relation to him. Although, as I have indicated, at the Trial Management Hearing on 17 November 2017, the Independent Children’s Lawyer was of the view that there was no sufficient change in circumstance, in the course of the hearing of the preliminary issue before me, her position changed, in part based upon recently obtained material.
The father asserted that there was sufficient change in circumstance to justify re-litigation.
Relevant statutory provisions and legal principles
The so-called rule in Rice & Asplund has now been considered by a number of Full Courts, although it may fairly be said that the application and operation of the rule remains complex. From my analysis of those cases, I venture the following as relevant principles which may either be drawn directly from them, or which otherwise logically arise:
(a)The rule is but one manifestation of the best interests principle;
(b)However best interests are not the only consideration relevant to the application of the rule, with other considerations including public policy issues such as the finality of litigation, and practical matters, such as the stage of the litigation at which the rule is being considered and the nature of issues involved in the several pieces of litigation;
(c)The rule requires there to be a sufficient change of circumstances to justify the re-litigation;
(d)The rule can be applied at any stage of the proceedings;
(e)The effect of the operation of the rule will vary depending upon the time of its application, or more precisely the stage of the litigation when the rule is being applied;
(f)If the rule is considered prior to trial, it may be invoked by way of an application for summary dismissal (in which case the court is likely to proceed on the basis of taking the applicant’s case at its highest and not permitting cross-examination) or alternatively may be dealt with by way of preliminary issue (in which case cross-examination may be permitted and findings of fact made);
(g)If the rule is raised and considered at trial, most of the evils which the rule is intended to overcome or ameliorate will have already ensued. In considering whether it may be appropriate for the application of the rule to be determined as a preliminary point at trial, factors which may influence that decision will include the dislocation of the trial process if there is a reserved judgment, and the additional delay involved. Converse considerations may be the cost to the parties of any trial if indeed the rule’s application at the end of the trial sees re-litigation impermissible.
(h)The rule may also be dealt with at trial by way of something akin to a no case submission, but similar considerations to the determination of the matter as a preliminary issue at trial would again arise;
(i)Logically, the extent of revisitation of prior orders sought by an applicant will be relevant in determining the likely impact of any re-litigation on the child. Arguably, if only a small variation of prior orders is sought, the impact on the child is likely to be less;
(j)Likewise, the court may only permit re-litigation on one or some of the issues sought to be re-agitated by the applicant, if doing so is in the child’s best interests, or conversely, a wider scope of re-litigation is not in the child’s best interests;
(k)Logically, it must be relevant whether or not the prior orders were made by consent, or at the end of a trial, or consequent upon an undefended hearing, and in any case, also relevant will be the circumstances by which the orders came to be made (eg if they were made at an early stage of the proceedings or after lengthy litigation);
(l)The parties will be bound by any findings of fact actually or implicitly made in prior orders, at least to the extent that they were necessarily made to quell the controversy;
(m)It will be a matter for the trial judge as to whether under Family Law Act s 69ZQ, evidence should be restricted only to matters post-dating the last orders, or alternatively, if leave to re-litigate is given, it might be conditional upon a limitation of issues or temporal scope of evidence;
(n)Irrespective of the stage the litigation is at when the rule is considered, the determination remains merits based and is not a technical one.
The facts
At the time of the decision of Kent J of 21 June 2012, the child was approaching two years and ten months of age. As I have observed, the parties had only separated only a little less than a month after his birth, after a short relationship.
Even by 2012, the parties had an extensive history of disputation. Indeed Kent J remarked at [29] of his Honour’s reasons that he preferred a particular structure of orders “given the animosity evident between two parties who cannot agree on the smallest of detail…”
Under the orders which his Honour made by consent on that occasion, there was an order for equal shared parental responsibility in relation to the child, who would primarily live with the mother. There was then a progressively increasing regime of time that the child spent with the father culminating from January 2015 (when the child was due to commence preparatory school) in him spending time with the father each alternate weekend from after school on Friday until 4:30pm on Sunday, together with each Wednesday night from after school on the Wednesday to before school on Thursday. Further, there was provision for block time in school holidays, including one half of all of the Christmas school holidays. Orders were also made for the child to spend time with both parents on special days.
The change in circumstance which the father asserts justifies his re-litigation is different from that identified by the Independent Children’s Lawyer. The father appears, at least in his material, to rely upon the mother’s asserted breaches of the orders of Kent J, virtually from the time they were made, and most recently, so he says, in September 2017. These breaches primarily comprise failing to make the child available to the father pursuant to the orders. Indeed, as I have indicated, the father filed a Contravention Application on 13 February 2018. In that application he alleges 13 contraventions, although some of those involve more than one event of contravention. He says that the mother’s persistent breaches of the orders are indicative that her attitude to co-parenting with the father has gotten worse and worse, and that the child’s best interests would now see him primarily live with the father, so as to avoid what he contends to be the child’s presently dysfunctional life, because he is more able to adhere to orders, and co-parent better, than the mother is.
That said, in cross-examination, he conceded that the high level of animosity which exists between the parties will continue between them no matter what. However he said that if the child were in the father’s care, then his exposure to the dynamic between the parties would be reduced, because the child would be less exposed to the mother and maternal grandmother.
In cross-examination by the mother, the father conceded that the parties had, on occasions, had been able to set aside their acrimony. For instance it appears as though for the last six months, the parties have attended the child’s sports together, and even on one occasion jointly went to dinner. However he persisted in his evidence that the present arrangement was not working, was causing the child anxiety, and that he could do a better job than the mother in parenting, and more particularly co-parenting, the child.
The mother was also cross-examined in the course of the hearing of the preliminary point. Particularly she was taken to some hospital records which were tendered into evidence before me. Most significantly was a letter from the RR Hospital to, it seems, the child’s general medical practitioner. Relevantly it reads:
[The child] presented to the Emergency Department at [RR] Hospital on 25 Sep 2017 at 15:01.
The diagnosis was ANXIETY.
… He has a long standing history of feelings of anxiety and tearfulness precipitated by pending visits to his father. His mother and father are separated and his mother is his primary carer.
On assessment today he was very tearful with associated hyperventilation when describing his relationship with his father. He describes that he does not want to go to his father’s as he has previously done as he is scared.
He has not previously received any psychological intervention as his father has not allowed it.
…
He has been discharged into the care of his mother with a plan to receive home psychology intervention and follow up by Child Safety in the community.
In cross-examination the mother thought that the occasion of taking the child to the hospital was in the context of the child going into the father’s care for part of the September school holidays. However it was not long after an episode of unpleasantness that occurred at a changeover of the child from the father’s care into the mother’s, albeit utilising the maternal grandmother to collect the child.
The parties are not agreed as to what precisely occurred on that occasion. For his part, the father says that he was unaware that the maternal grandmother was to collect the child rather than the mother, and he was resistant to releasing the child into her care. For her part, the mother seems to think that in order to escape the father, the child kicked him, then ran to the maternal grandmother, and thereafter was of the view that his father was “going to kill him” because of what occurred.
It appears as though the changeover was observed by a bystander who thereafter contacted police. Certainly police were involved, and subsequently the Department of Child Safety was notified. Although, not unusually, the heavy redaction of the Departmental records makes certainty of their content and meaning difficult, it appears that its investigation concluded:
It is unable to be established that [the child] is currently presenting with indicators of detrimental, physical or emotional harm or is at an unacceptable risk of detrimental harm. Whilst it is acknowledged that [the child] is presenting with anxiety, the information provided in relation to this indicates that the anxiety is currently being assessed and there have been no disclosures from [the child] that the anxiety is the result of parental abuse or neglect. [Redacted] the anxiety is the result of feeling that his father may hurt him or his mother…
This is but one of a number of occasions where the mother has complained that the child is suffering from anxiety. Indeed she has regularly made complaint in relation to that to his school, including:
·In 2014, in anticipation of the child commencing prep the following year, she advised the school that “I have found that [the child] displays oppositional behaviour after spending time with [the father];
·She advised the school in an email of 21 April 2015 (in the course of seeking to recruit some staff to give evidence in these proceedings) that “unfortunately, [the child’s] anxiety over having to spend time with his dad every Wednesday and every second weekend is becoming general anxiety about coming to school at all. [The child] is generally upset and anxious from the time he wakes at about 5:30am or 6:00am on any school day and particularly on the days that [the father] is picking him up. He is also having nightmares about having to go and spend time with [the father].” Later in that email she said “it is my view and the view of the neuropsychologist, [Dr SS], that it would benefit [the child] if the Wednesday overnights were stopped until [the child’s] anxiety is under control;”
·By email of 6 February 2017 to the child’s school teacher, she reported that “his anxiety level will be higher on Wednesday when he has to go to his dad’s and every second Friday. As a result, he does not concentrate on his school work;”
·In about November 2017, in some school meeting minutes dated 22 November 2017, it is recorded that the “mother sent a letter from hospital saying [the child] had anxiety and possibility for a transition process for him next year…”
There seems to be some independent corroboration of the father’s contention that the maternal grandmother can, on occasions, have a negative effect upon the child’s emotions. For instance there is a note in the records of the school dated 14 February 2017, which states:
[The child] arrived today with grandma, very upset. I tried to reassure him and her & suggested she leave but she did not go & quite honestly escalated the situation to him sobbing, grabbing the door etc. After much coaxing he (sic) left he settled (took some time)…
Notwithstanding all of this, there are also school records which suggest that the child is coping well. For instance there is a handwritten note of a telephone conversation between a school staff member and the mother on 8 November 2017 where it is said, amongst other things that the child is “not appearing anxious in classroom/school” and is “confident, resilient, has come along.” Later there appears “academically has travelled well,” “matured a lot,” “never cries,” and “arrives happy.”
The arguments
I have indicated that the father’s argument largely relies upon the mother’s alleged serial contravention of the orders, which he says demonstrates an incapacity on her part to adequately co-parent the child, which is progressively getting worse, and increasingly making co-parenting dysfunctional. He also focuses his attention upon the influence of the maternal grandmother.
These matters were not adopted by the Independent Children's Lawyer, who nonetheless contended that there was a sufficient change in circumstance to warrant re-litigation. Particularly, counsel for the Independent Children's Lawyer identified the following relevant changes.
Firstly, she identified that, unlike before Kent J in June 2012, the parties are no longer in agreement that the child should live with the mother and spend substantial and significant time with the father. That was their agreement in 2012, but it has not been their position now for some years. The mother has only recently reverted to that position.
Secondly, she said that the fact of the child’s aging is itself a material change, in that the child was not yet three years old at the time of the orders in 2012, but is now aged eight. In this regard it is appropriate to again reflect upon the observations of Kent J in 2012 about the fact of the youth of the child at that time being an important factor in considering later whether re-litigation may be appropriate.
Thirdly, counsel identified that the slender issues resolved by Kent J in 2012 were not significant barriers to co-parenting of the child.
Fourthly, and finally, she noted the child’s changing needs, and particularly focussed her attention upon the child’s presenting symptoms in hospital in September 2017. Of particular concern, of course, is that the child, according to the hospital notes, on examination was observed to be very tearful, bursting into tears at the commencement of the consultation, and hyperventilating.
Other matters were also highlighted by her as demonstrating a failure of the co-parenting relationship. For instance, it appears as though the child, although recommended to attend psychological counselling, was unable to do so because the father would not consent to it (or at least refused to do so, according to the mother).
Counsel for the Independent Children's Lawyer noted that if the matter were able to be re-litigated, the outcome of the litigation may not in fact favour the father.
Evaluation
As I have observed in discussing relevant legal principles, the question of whether there has been a sufficient change in circumstance to warrant re-litigation in relation to the appropriate parenting orders for a child, is an assessment of what is in the child’s best interests. There is little professional assistance in the material in assessing where those best interests lie, as the most recent Family Report was prepared in July 2014.
However in a Child Inclusive Conference memorandum dated 16 November 2015, the Family Consultant made a number of observations under the heading “Future Directions.” Whilst noting that the child’s alleged anxiety was not conceded by the father, she thought that there was “some suggestion that [the child] may be experiencing some anxiety and difficulty in transitioning between his parents’ care environment, particularly from his mother’s care to his father’s care.” However she immediately went on to say “given his young age and the high conflict between his parents which he has been exposed to from a young age, it is not surprising that he might experience some anxiety or trepidation in his parenting arrangements, and the transitions he is required to make.”
She went on to recommend that if there was anxiety, there might need to be “a slight adjustment” to the parenting arrangements, particularly reducing the number of changeovers. However, noting that the parties’ then proposals were not particularly different to those which had been ordered in 2012, she went on to say:
I would be reluctant to suggest a further Family Report as this may further expose [the child] to the parental conflict. I am also of the view that the parents’ applications and proposals do not seem a significant departure from the original orders. However in the event that the father makes an application for change in residence (as he is suggesting), then a Family Report is likely to be necessary…
The following points tend in favour of the conclusion that it would be in the child’s best interests for further litigation to be permitted:
·As recently as September 2017, the child was demonstrating marked symptoms of anxiety (for example hyperventilation) and was so diagnosed. It may be the case that orders could now be fashioned so as to reduce that anxiety (albeit if the true source of his anxiety is parental conflict, that is unlikely to ever abate);
·The parties are no longer in agreement as to the appropriate co-parenting arrangement for the child, although they were in 2012;
·The child was very young at the time of the original consent orders, and is now over eight years of age. Inevitably that means that the facts, upon which the parties were able to agree in 2012, are now materially different.
On the other hand, the following points tend to favour the conclusion that it is not in the child’s best interests for there to be further litigation in relation to appropriate parenting orders for him:
·The parties have been litigating in relation to the child for virtually all of his life, and to permit further litigation will inevitably require the child to be involved in the court processes, including, at the least, being interviewed for the purposes of a Family Report;
·The parties appear intent on litigating indefinitely;
·There is the prospect of making variations to parenting orders in the context and course of the father’s extant contravention applications (even if they are dismissed: s 70NBA);
·In cross-examination the father conceded that he and the child have a good relationship, which was meaningful to him and likewise had a good relationship with all of the father’s family;
·The father denies that the child demonstrates the anxiety reported by the mother when in his care;
·The father conceded in cross-examination that the high level of animosity between the parties will continue, no matter what;
·The mother conceded in cross-examination that it was likely that there were no such thing as “perfect orders” in this case.
Counsel for the Independent Children's Lawyer submitted that the considerations in this matter were finely balanced, but upon her assessment, that balance tipped in favour of permitting re-litigation. I agree that it is finely balanced, and, albeit only with great reluctance, share her assessment as to where the balance lies. I give particular weight to the fact that there was clearly some form of anxiety crisis for the child on 25 September 2017, in the context of an imminent transfer into the father’s care. Although the school notes for 8 November 2017 do not seem to suggest that was then affecting the child, at least in relation to his schooling and presentation at school, his presentation at the hospital, is objective evidence, and very troubling. Whilst I am deeply concerned that the root of the problems in relation to the co-parenting relationship lies with both parties, which is likely unable to be remedied by any particular suite of orders, and that the history of these parties’ litigation would tend to suggest that they intend to litigate about whatever they possibly can, for as long as they possibly can, nonetheless as this point, the child’s interests require those matters, and others, to be adequately investigated at trial.
Sadly therefore, I am satisfied that it is in this child’s best interests that the parties be permitted to continue their extant litigation in relation to appropriate parenting orders for him.
CONCLUSION
The trial management hearing will be resumed at 2:15pm on 1 August 2018 by Global Meet Teleconference (noting the dial in details remain the same as previously advised).
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 June 2018.
Associate:
Date: 26 June 2018
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