Spalding and Barbaro

[2016] FamCA 542

FAMILY COURT OF AUSTRALIA

SPALDING & BARBARO [2016] FamCA 542

FAMILY LAW – CHILDREN – INTERIM – where the parents previously entered into consent orders in relation to the care arrangements for their four children – where those orders provided for two of the children to live in a week about arrangement – where the youngest two children were born after the parties’ separation – where the consent orders provided for their time with their father to gradually increase and then be reviewed – where each party makes serious allegations against the other – where both parties sought a variation in relation to the care arrangements for the two youngest children – where the father contended the principles in Rice & Asplund precluded a variation of the care arrangements for the two oldest children – where final hearing will involve consideration of what is in best interests of all four children.

Family Law Act 1975 (Cth)
Family Law Rules 2004

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bennett and Bennett (1991) FLC 92-191
Bolitho and Cohen (2005) FLC 93-224
Goode & Goode (2006) FLC 93-286
King v Finneran (formerly King) (2001) FLC 93-079
Langham and Langham (1981) FLC 91-014
Langmeil & Grange[2013] FamCAFC 31
Marsden & Winch[2009] FamCAFC 152; (2009) 42 Fam LR 1
Miller & Harrington(2008) FLC 93-383
Newling and Newling; Mole (Applicant) (1987) FLC 91-856
Poisat & Poisat (2014) FLC 93-597
Rice and Asplund (1979) FLC 90-725
SCVG & KLD (2014) FLC 93-582
SPS & PLS (2008) FLC 93-363

APPLICANT: Mr Spalding

RESPONDENT: Ms Barbaro

FILE NUMBER: BRC 10027 of 2011

DATE DELIVERED: 7 July 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 20 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Simonidis Steel

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Hopgood Ganim Lawyers

Orders

1. That paragraphs 17.3 and 17.5 of the Order made 3 December 2013 be discharged.

2. Until further order the children B and C born … 2012 (“the girls”) spend time with the father at all such times as may be agreed between the parents in writing and failing agreement as follows:

   (a)During school term for the balance of 2016, each alternate Tuesday and Thursday from after pre-school until before pre-school the following day, such time to occur in the same week the children D born …2008, E born … 2009 (“the boys”) are living with the father;

   (b)From the commencement of the school year in 2017 and during school term, each alternate weekend from after school Friday until before school Monday and each alternate Thursday from after school until before school the following day such time to occur in the same week the boys are living with the father;

   (c)During school holidays from 3.00 pm Friday until 9.00 am Monday and from 3.00 pm Thursday until 9.00 am the following day to occur in the same week the boys are living with the father.  

3. During school term the father shall collect the boys and the girls (“the children”) from their respective schools at the commencement of the time the children are to spend with him and return them to their respective schools at the conclusion of the time.

4. During school holidays or at times when the schools are not open the mother or her nominee shall deliver the children to the father’s residence at the commencement of the time the children are to spend with him and the father or his nominee shall deliver the children to the mother’s residence at the conclusion of the time.

5. The mother shall undertake Carbohydrate Deficient Transferrin testing once every three months at the joint expense of the parties and provide a copy of the results to the father as soon as reasonably practicable after she receives the results. In the event that the mother produces three consecutive tests showing no excessive alcohol consumption the requirement for testing shall cease.

6. The father shall provide to the mother within 7 days a panel of three appropriately qualified psychologists to conduct counselling with the parties and the mother shall select one psychologist from the panel and notify the father within a further 7 days.

7. The mother and father shall forthwith do all things necessary to attend upon the said psychologist for counselling either separately or together (as directed by the said psychologist) at all such times nominated by the psychologist and for such period as required by the psychologist.  

8. The mother and father shall each promptly pay one half of the invoices issued by the said psychologist.

9. The psychologist shall be provided with a copy of the family report prepared by Mr F and dated 15 June 2016 and a copy of this Order but with no other material unless specifically requested by the said psychologist in writing.

10. All outstanding applications for interim orders be dismissed.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spalding & Barbaro has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10027 of 2011

Mr Spalding

Applicant

And

Ms Barbaro

Respondent

REASONS FOR JUDGMENT

1. The parties to this interim parenting dispute are Mr Spalding (“the father”) and Ms Barbaro (previously known as Ms Spalding) (“the mother”).

2. The parties consented to a final parenting order on 3 December 2013 (“the 2013 Order”) in relation to their four children, namely, D born in 2008, E born in 2009 (“the boys”), B and C born in 2012 (“the girls”) which provided inter alia for the boys to live in a week about arrangement and for the girls to spend time with the father at specified times to be reviewed within six months. Arguably, the Order was not intended to be final in relation to the girls because although it provided for alternative dispute resolution if agreement could not be reached, if an impasse occurred (as has happened) the parties must have intended for the Court to resolve such an impasse. Each party in their filed material sought primary care of all children. Leave was granted for each to amend the orders sought.

3. At the commencement of submissions, counsel for the father raised for the first time, it seems, a preliminary issue as to whether the Rice and Asplund[1] principle precludes variation of the final Order in relation to the boys. Each party seeks an interim order in relation to the girls and in relation to various other matters. The mother also seeks to vary the 2013 Order in relation to the boys.

   [1] (1979) FLC 90-725.

Background facts

1. The father and mother commenced cohabitation in December 2007 and married in 2008. They separated in February 2011 and divorced on 29 June 2014. Neither parent has re-partnered (although the father alleges the mother has a boyfriend which is denied by her).

2. The father lives in his own home at Suburb G in Region H and the mother lives in her own home at Suburb I in Region H.

3. The boys attend J School (JS) where they are in grades two and one respectively. The girls attend what is called pre-preparatory school (referred to by the mother’s counsel as kindergarten) at K School.

4. Relevantly, the 2013 Order provides:

   a)Equal shared parental responsibility;

   b)Equal time for the boys with changeover occurring from school on Fridays;

   c)The girls live with the mother and spend time with the father at times as agreed and failing agreement as follows:

   i)For two months for a three hour period three times each week; and

   ii)Following the expiration of two months for a five hour period five times each week;

   d)With the father to collect the girls from the mother’s residence at the commencement of their time and the mother to collect the girls from the father’s residence at the conclusion of their time;

   e)Holiday time for the boys for up to three weeks per year upon notice;

   f)Time with each parent on special days;

   g)Non denigration including “speak of the other parent respectfully” and neither parent to involve the children in any “adult discussions (including but not limited to discussion in relation to care arrangements and child support)”;

   h)Exchange of information;

   i)Notification of medical emergency in relation to the children;

   j)Each parent to be at liberty to attend medical appointments;

   k)Notification in relation to medical issues and/or future medical appointments;

   l)Authorisation for each parent to receive information regarding the children from any educational facility and to attend education functions;

   m)Review of the time the girls spend with the father with the assistance of Ms L;

   n)Attendance at dispute resolution in the event of any dispute.  

5. There have been many disagreements between the parents since 2013 although there have also been times when their relationship was more co-operative and even congenial. The mother contends the parties attempted reconciliation on occasions during 2015.

6. The parties attended mediation in January 2015 and agreed the girls would spend time with the father for three hours three times a week until August 2015 when his time would increase to overnight time.

7. The boys lived in a week about arrangement until February 2016 (although the mother contends that was not always the case and the father contends there were periods of greater flexibility). The girls spent various times with the father until February 2016 but did not commence to have overnight time with him until November 2015.

8. There have been allegations and counter allegations involving family violence.

9. A temporary Protection Order was made on 5 November 2015 where the mother is the aggrieved and the father is the respondent.

10. A temporary Protection Order was made on 8 February 2016 where the father is the aggrieved and the mother is the respondent.

11. The competing Applications for Protection Orders are to be heard in the Magistrates Court on 27 July 2016.

12. A dispute arose most recently in February 2016. As a result of that dispute the boys remained in the care of the father and did not see their mother or the girls from February 2016 until May 2016 and did not attend school. The girls remained in the care of the mother and did not see their father or the boys during the same period and did not attend kindergarten.

13. The Department of Communities, Child Safety and Disability Services (“the Department”) and the Police have been involved with this family including conducting a number of interviews. I note the Police Record in exhibit 10 dated 25 February 2016 records the following:

    … It is unknown if either party is playing a part in ‘coaching’ the children against each parent, which may lead to confused and ambiguous accusations being made by [B] or [C] to the relevant authorities.

14. There are no ongoing investigations.

15. Mr F prepared a comprehensive family report at the joint instigation of the parties and interviews occurred on 23 May 2016.

16. After the release of the family report and by agreement, the boys recommenced spending alternate weeks with each parent with changeover on Fridays. The parties reached what is described as an ‘interim interim order’ up to the date of hearing providing for the girls to spend each Tuesday and Thursday overnight with the father.

Father’s case

1. The father relied upon the following material at this interim hearing:

   a)Application filed 24 February 2016 as amended by substituting the interim order sought with the minute of order in exhibit 1;

   b)Affidavit of the father filed 24 February 2016;

   c)Affidavit of the father filed 9 June 2016;

   d)Notice of Risk filed 24 February 2016;

   e)Affidavit of Ms M filed 9 June 2016;

   f)Affidavit of Dr N filed 9 June 2016;

   g)Affidavit of Mr O filed 9 June 2016;

   h)Affidavit of Ms P filed 9 June 2016;

   i)Affidavit of Ms M filed 20 June 2016 by leave;

   j)Affidavit of Mr F filed 17 June 2016 (Family Report);

   Material produced pursuant to subpoena

   k)Documents produced pursuant to subpoena from K School marked SS1 (exhibit 8), SS2 (entry dated 12.2.16) (exhibit 9) and SS3 record of interview between the mother and Ms Q dated 12.2.16 (exhibit 10);

   l)Documents produced pursuant to subpoena from Dr V marked SS11 (notes of Mother’s attendance on 19.2.16) (exhibit 11), marked SS4 (referral given to Dr R 15.2.16) (exhibit 12);

   m)Documents produced pursuant to subpoena from Queensland Police Service marked SS3 (20.1.16 in relation to complaint by Mother and police response) (exhibit 13), SS6 (interview with both girls) (exhibit 14);

   n)Documents produced pursuant to subpoena from S Medical marked SS1 (exhibit 15) and SS2 (attendances from 2013) (exhibit 16); and

   o)Chronology (exhibit 17).

1. The father’s Notice of Risk alleges that the children have been subjected to physical abuse through lack of supervision and a failure to meet the children’s physical needs. He further alleges the children may have been physically harmed by a male in the mother’s household and that the mother has subjected the children to serious psychological harm by withholding them from the father.

2. Despite the father commencing these proceedings seeking interim and final orders for all children to live with him and spend alternate weekends and overnight on one night in the other week with the mother, he sought, at this interim hearing, to resist any change to the arrangements in relation to the boys on the basis of the Rice and Asplund principle.

3. It was submitted on behalf of the father that the order sought by the father in exhibit 1 does not conflict with the Rice and Asplund principle as it was envisaged by the 2013 Order that the time the father spent with the girls would be reviewed and the balance of the order sought by him can properly be described as containing ‘machinery provisions’.

4. The order sought by the father in exhibit 1 is in summary:

   a)Discharge paragraph 17.3, 17.4, 17.5 and 18.3 of the 2013 Order (father’s time with the girls, place for changeover and Christmas time);

   b)Father spend time with the girls each Tuesday overnight and alternate Friday overnight to 4pm Saturday and after two months the 4pm Saturday be extended to 4pm Sunday and after a further two months the 4pm Sunday be extended to before school Monday and from Term 3, 2017 alternate weeks (same as the boys);

   c)If children are not at school or pre-school then changeover occur at T Shopping Centre on the Suburb U unless otherwise agreed;

   d)Telephone time;

   e)Means of communication between parents;

   f)Children only attend one medical practice;

   g)Provision of information to parents from school etc.;

   h)Injunction restraining parents from removing the children from their respective educational facilities;

   i)Counselling for the children; and

   j)Parents undertake a parenting course.

5. The father alleges that the mother used the girls as bargaining chips in attempts to gain financially from him. He contends that during times when the parental relationship was friendly the arrangement they had with the children was very flexible. He contends that when money was forthcoming the mother agreed to increase his time with the girls and when it was withdrawn or refused the mother would limit or prevent him spending time with the girls. The father contends that the mother abuses alcohol and that his concern was such that he refused repeated requests by the mother to resume the parenting arrangement in place prior to the February dispute unless she signed certain undertakings. His allegations include the wife having a boyfriend who was abusing the children. He also accuses her of making up allegations of family violence against him.

6. The allegations he makes are serious, although ultimately it was submitted on his behalf that such allegations were made “by way of background only”. A curious position to take and one that appears to have arisen only when it was considered his case may be more advantageously conducted by relying on the Rice and Asplund principle. No doubt his decision to abandon the significance of these allegations will loom large in any subsequent trial of this matter.

7. The father concedes sending numerous text messages containing vile and abusive remarks to the mother and he concedes speaking about the mother in vile and abusive terms to various witnesses relied upon by the mother.

8. The father expresses regret about these statements. The excuse offered is one of frustration in response to the mother’s conduct. The basis upon which regret is expressed and whether it is genuine is not something that can be tested at an interim hearing.

Mother’s case

1. The mother relied upon the following material:

   a)Response filed 20 May 2016 as amended by substituting the interim order sought with the minute of order in exhibit 3;

   b)Notice of Risk filed 20 May 2016;

   c)Affidavit of the mother filed 20 May 2016;

   d)Affidavit of the mother filed 13 June 2016;

   e)Affidavit of Dr V filed 2 June 2016;

   f)Affidavit of Mr W Spalding filed 16 April 2016;

   g)Affidavit of Mr X Spalding filed 16 April 2016;

   h)Affidavit of Ms Y filed 16 April 2016;

   i)Affidavit of Mr Y filed 16 April 2016; and

   j)Affidavit of Ms Z Barbaro filed 20 April 2016 (said to have been filed 16 April 2016).

   (the last five affidavits were only relied upon to the extent referred to in submissions)

   k)Documents produced pursuant to subpoena from Queensland Police Service (exhibit 4);

   l)Documents produced pursuant to subpoena from K School (exhibit 5);

   m)Documents produced pursuant to subpoena from Dr V (exhibit 6).

2. The mother’s Notice of Risk alleges that the children have been subjected to serious psychological harm by the father withholding them from the mother and that he has neglected the children when leaving them unsupervised in a hotel room. She further alleges the child, B, has made disclosures of being pinched by ‘daddy’s boyfriend’ and has pointed to her genital area after she has spent time at her father’s home. She further alleges the father has abused the children by giving them ‘Chinese burns’ until they cry and subjected them to psychological harm by doing ‘self-administered enemas in the shower whilst the children are present’.

3. Counsel for the mother did not really address the Rice and Asplund argument separately other than to observe that up until the matter was called on the father’s position had been completely different.

4. The mother’s counsel relied upon the following alleged facts to support a variation of the 2013 Order in relation to the boys and for the order sought in relation to the girls:

   a)The father has not regularly maintained the week about arrangement since the Order was made;

   b)Both parties acknowledged that the week about arrangement was not working for the children and each sought primary care (up until the commencement of the interim hearing);

   c)The father has engaged in repeated family violence against her including calling her a “fucking idiot”, a “sick piece of shit”, a “low life lying cunt”, a “fucking lying dog” and making a threat in the following terms: “You had better sleep with one eye open and your boyfriend better sleep with his eyes open too”;

   d)Despite there being an Order for equal shared parental responsibility the father unilaterally discontinued the boys’ mainstream schooling and engaged them in home schooling;

   e)High conflict between the parents involving the father video recording interactions at changeovers and exposure of the children to the conflict;

   f)Conflict between the parents in relation to the boys’ homework, uniforms and medical issues;

   g)Lack of insight by the father into the impact his actions have on the children e.g. his recent email to the mother – “life has been good for the last 3 months not having to deal with the stress of communicating with you”;

   h)The recent interruption in the boys’ relationship with the mother has had a significant impact on them as evidenced by their comments and behaviour at the family report interviews e.g. (Family Report)

   [133]       The boys continually hugged their mother. [E] said that he wanted to go home with mum.

   …

   [135]       [D] rested his head in his mother’s lap. … [E] asked me if he could go home with his mother today.

   …

   [140]       [E] asked his father if he could stay with his mother and go home with his mother that night.

   …

   [141]       I observed a fairly intense farewell between the boys and the mother. They hugged her closely and tightly. They wanted specific answers as to when they would be seeing her again. … The boys looked sad and distressed.

   …

   [151]       [D] told me that he thinks he is a ‘meaner kid’ towards other children at school, because his mother and father have fought with each other.

   …

   [157]       … He spoke about how hard it has been for his brother and for him, not to see his mother.

   …

   [164]       [E] made comments throughout his interview, asking me if he could go home with his mother that day.

   …

   [167]       … “I’ve been abandoned by her for a month, like six months.” “I want to live with her”

1. It was argued on behalf of the mother that the children should all live primarily with her particularly to enable the boys to mend their fractured relationship with their mother. The order sought by her in exhibit 3 is in summary:

   a)That orders 16 to 24 of the 2013 order be discharged;

   b)Equal shared parental responsibility;

   c)Children live with mother;

   d)That the girls spend time with the father each Tuesday over night and alternate weekends from Friday after pre-school to 4.00 pm Saturday for two months and thereafter the alternate weekend time be extended to 4.00 pm Sunday;

   e)That the boys spend time with the father each Tuesday until 6. 30pm and alternate weekends from Friday to the following Monday;

   f)Changeovers to and from school and when not at school at T Shopping Centre;

   g)Holiday time for the boys – half of Easter, one week June/July and September/October holidays and two separate weeks in Christmas school holidays;

   h)Holiday time for the girls – no extra time until 2018;

   i)Specified special days;

   j)Telephone communication;

   k)Non-denigration;

   l)Exchange of information;

   m)Dr V be the children’s general medical practitioner;

   n)Authority to attend school, receive information and participation in extracurricular activities;

   o)Dispute resolution;

   p)Psychiatric assessment of the parties;

   q)Counselling for the children;

   r)Mother submit to Carbohydrate Deficient Transferrin testing once every three months at joint expense of parties; and

   s)Parties undertake a parenting course.

2. The mother denies the allegations made against her by the father although I note:

   t)As at 23 July 2015 she sought assistance from Dr V to reduce her excessive consumption of alcohol and was prescribed Naltrexone. At that time she was drinking a bottle of wine daily. As at 4 November 2015 the mother informed Dr V that the Naltrexone was helping her to lower her consumption but she had been unable to abstain. By 15 February 2016 the mother informed Dr V that she was no longer drinking daily but mainly twice per week. She was still taking Naltrexone.

   u)B made a statement to a teacher at her school implicating the mother’s boyfriend in hurting her. The mother denies having a boyfriend and in fact states that she has not dated or had a male stay overnight at her home since separation. The mother then arranged for B to be asked questions by the father’s sister, Ms Y, (described by the mother as a good friend of hers) while the mother recorded it. That then formed the basis of a complaint by her to police and led to her withholding the girls from the father which in turn led to the father withholding the boys from the mother.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper (Goode & Goode (2006) FLC 93-286), but such consideration will focus in particular on issues that will be determinative at an interim hearing. As the Full Court observed in Banks & Banks (2015) FLC 93-637:

   48. … By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. … It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93–582.

   50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

2. In any event, whether the hearing is interim or final, the Court is not required to make findings of fact on every factual dispute raised by the parties (Baghti & Baghti [2015] FamCAFC 71).

3. Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:

   a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC then outlines the primary and additional considerations that the court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

8. Family violence is defined in s 4AB of the Act to mean violent, threatening or other behaviour that coerces or controls a member of a person’s family or causes the family member to be fearful. Making repeated derogatory taunts is an example included as behaviour that may constitute family violence. 

9. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

10. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

11. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

Observations relating to the material relied upon by the parties

1. Having regard to the size of some of the affidavits and the fact that submissions took two hours, it is immediately apparent that the experienced solicitors having carriage of this matter for the mother and father paid no heed to Rules 5.09, 5.10 and 5.12 of the Family Law Rules 2004. Rule 5.09 provides that at an interim hearing reliance may be placed on only one affidavit by each party or witness. Rule 5.10 provides that the hearing of an interim application must be no longer than 2 hours and Rule 15.12 restricts the size of attachments to affidavits.

2. The material ultimately relied upon comprised over 1000 pages. Much of the material was of little assistance but was no doubt included at the insistence of the clients. That is not a proper basis for the inclusion of irrelevant material in affidavits. I can only reiterate what the Full Court said in Banks and Banks (supra), viz, that the material relied upon at an interim parenting hearing should be confined to those issues which require determination prior to a proper determination at a trial.

3. The mother’s counsel initially sought to rely upon a Notice to Admit Facts comprising a further 617 pages. The facts (pages and pages of text messages) were disputed by the father as being an incomplete record of the exchanges. Sensibly, counsel for the mother did not ultimately rely upon the Notice.

4. It is simply unacceptable for parties to rely upon so much material at an interim hearing and it may well result in costs orders in the future, including against solicitors.

The Rice and Asplund argument

1. In Rice and Asplund the leading judgment was given by Evatt CJ, with whom Pawley SJ and Fogarty J expressed their agreement. Evatt CJ said at 78,905-6:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material ... These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

   Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals for each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.

   (citations omitted)

2. That there is such a principle or rule is beyond doubt as recently held by the Full Court in Poisat & Poisat (2014) FLC 93-597 noting it to be firmly entrenched in family law in Australia and applied in numerous decisions over the last 25 years (see for example Langham and Langham (1981) FLC 91-014; Newling and Newling; Mole (Applicant) (1987) FLC 91-856; Bennett and Bennett (1991) FLC 92-191; King v Finneran (formerly King) (2001) FLC 93-079; Bolitho and Cohen (2005) FLC 93-224; Miller & Harrington(2008) FLC 93-383; SPS & PLS (2008) FLC 93-363; Marsden & Winch[2009] FamCAFC 152; (2009) 42 Fam LR 1; Langmeil & Grange[2013] FamCAFC 31).

3. The Rice and Asplund principle is an important one developed in large part to avoid the unnecessary re-litigation of parenting disputes where a final order has been made. Such a purpose will not be avoided in this case.

4. Counsel for the father conceded that even if the Rice and Asplund principle precludes the Court re-opening the 2013 Order in relation to the boys, the dispute about the girls will involve the parties in further litigation and, as has already occurred, the boys will be involved in that process having been interviewed by Mr F for the family report.

5. That is not to say of course that the principle need always be applied as a preliminary matter. It may be that after a full hearing the principle will be applied in defeating an application to vary an earlier final order. As Warnick J held in SPS & PLS (supra):

   74. In summary:

   oThe rule in Rice and Asplund is generally expressed – as a rule to be applied as a preliminary matter;

   oIf applied as a preliminary matter it may achieve all its purposes; and

   oIf applied at the end of a full hearing of parenting issues, the rule cannot achieve all its ends, but can achieve some and ought still receive consideration. However, its force may be diminished.

6. The best interests of children remains the paramount consideration in parenting disputes and in my view a consideration of what is in the best interests of the girls cannot be considered in isolation. The boys’ interests are necessarily intertwined with the girls.

7. Since the 2013 Order the parties have engaged in recurrent disputes which, at the very least, has had a significant practical impact on the children and culminated in the boys ceasing to attend their school for three months and not seeing their mother or the girls during that time and the girls ceasing to attend pre-school and not seeing their father or the boys. Mr F’s observations certainly lend weight to the submission that the interruption in time has had a detrimental impact on their wellbeing.

8. Each of the parties makes allegations of abuse or neglect against the other.

9. Importantly, in terms of considering the various allegations made by the parties, Mr F opines:

   [199]I am not of the view, on the information before me, that there are any child protection issues at this stage, which would prevent either parent from providing hands-on care to the children in a robust and broad ranging manner.

10. What I can find, however, is that the actions of both parties have led to a situation where the children have been prevented from spending time with the other parent and their siblings for a considerable period and this is likely to have had a detrimental impact upon them. Whether one party is more at fault than the other is a matter that cannot be determined at this interim hearing.

11. While ultimately it was submitted on behalf of the father that his allegations of abuse were made by way of ‘background only’, the allegations will no doubt be considered at a final hearing as will the purpose in making them. If the allegations made by each party are ultimately found to have been trivial in nature or based on unreliable or speculative evidence it will no doubt have an impact on what order is ultimately made for these children.

12. In applying the Rice and Asplund principle I am required to assume the evidence of the person seeking to vary the Order is accepted and upon such assumption, make a finding as to whether I should reconsider the matter (see [81] of SPS & PLS).

13. The application of the Rice and Asplund principle in the circumstances of this case does not, in my view, preclude a reconsideration of the 2013 Order in relation to the boys and leads me to find that that there should be a final hearing in relation to what order is in the best interests of all children. In this context I note Mr F’s comments:

    [181]I have considerable misgivings about how an equal shared living arrangement can be sustained for the children in the longer term. My concern is that the quality of the parent’s co-parenting relationship leaves them poorly equipped to sustain it. Their communication is poor and their mistrust is high. … They interpret information from the children about events in each other’s home in a very negative way. They make significant allegations about their conduct towards each other and to the children. The longer-term risk in this matter is that rather than cooperate, the parents are likely to compete to assert their dominance over the lives of the children. …

14. Mr F nevertheless recommends a continuation of the equal shared care arrangement for the boys on an interim basis.

Consideration of relevant matters in determining what order is in the best interests of the children pending a final hearing

1. The children have a meaningful relationship with each of their parents and the parties concede that the children should continue to have a meaningful relationship with each of their parents. There has been a significant interruption in the relationship between the mother and the boys and between the father and the girls. The parties have recognized that the interruption should not continue and have resumed the week about arrangement for the boys and have agreed to twice weekly overnight time between the girls and the father (at least up to the date of the interim hearing).

2. The father has spoken to the mother in an abusive and expletive ridden way at times and he has sent the mother numerous text messages and emails of the most vile and abusive kind. He has spoken to others about her in the vilest of terms. The mother contends that the children have from time to time been present when the father has abused her. The parties have a contested hearing of their competing Applications for a Protection Order on 27 July 2016. The father admits much of what the mother alleges in terms of his abuse but seeks to mitigate it on the basis that he was responding out of frustration to the mother’s own conduct. He expresses regret for his abuse.

3. The mother has involved B in an interrogation by Ms Y, a most unhelpful and potentially damaging exercise.

4. There is a need to protect the children from exposure to conflict from both parents and for this reason, I consider that as far as possible, changeovers should occur at school, and if they cannot occur at school, the parent delivering the children to the other parent should do all they can to ensure the changeovers occur promptly. I will also make provision for the parents to have a nominated person attend in their stead at the actual changeover if the children need assistance to transition to the other parent. By the 2013 Order there is already an existing injunction enjoining the parties from insulting or denigrating the other.

5. The mother has a history of excessive alcohol consumption but to her credit has sought assistance in managing her alcohol use. She remains under the care of Dr V. Despite her denials of excessive alcohol consumption in recent times I note that as recently as May 2016 the mother attended a lunch and a dinner on the same day where she deposes that she cannot recall exactly how much she drank at either function. She certainly continues to drink alcohol on a regular basis and I propose to make the order she seeks in exhibit 3 for her to submit to Carbohydrate Deficient Transferrin testing.

1. E made it very clear that he missed his mother and wanted to live with her. That said, the children are very young and according to Mr F do not understand the consequences of structural change to their living arrangements.

2. If it is the case that the mother has used the children as a means of obtaining money or financial gain from the father this is clearly a demonstration of a failure by the mother to meet her parenting obligations and an inability to put the best interests of the children above her own.

3. There can be little doubt that the father’s decision to keep the boys away from their mother, siblings and school for three months is likely to have had a significant impact upon them. He has not acted in the best interests of the boys. The mother’s numerous attempts to revert to the previous arrangements were thwarted by the father seeking undertakings in relation to matters that he did not press at this hearing. Whether the circumstances relied upon by the mother justified stopping the girls seeing their father is a matter for final hearing.

4. The parties live in close proximity to each other and the children’s school and kindergarten. They have been managing a shared care arrangement for the boys for some years apart from some recent interruptions. The mother argues for an interim reduction in the father’s time with the boys primarily to re-build the mother’s fractured relationship with them. That will involve yet further interim change for the boys and a significant interruption in the time they spend with the father.

5. While Mr F opines that each parent has the capacity to provide for the day to day care of the children, I consider that Dr AA, psychologist, who saw the parties on three occasions in 2011, made some very interesting observations of these parents that may well have some relevance in understanding the continued conflict dynamic of their relationship.

6. Dr AA noted:

   [that the mother’s] …presentation was consistent with depression. She appeared to have impaired judgment, was struggling to focus during the session and was emotionally reactive. She stated that she was feeling ‘worn out’. She expressed fatigue and appeared distressed.

   …

   I have concerns for [Ms Barbaro] and [Mr Spaulding’s] relationship and have agreed to work with them in an attempt to manage the conflict that they are currently facing and to focus on the wellbeing of the children. [Mr Spaulding] has experienced severe distress and has been prescribed antidepressant medication.

   …

   I express my concern on the volatility and instability I am witnessing. At the conclusion of our session today, [Ms Barbaro] and [Mr Spalding] were cuddling and affectionate when leaving the office, a contradiction to the behaviour during the session.

7. It seems there have been times since then where the parents have been on very friendly, if not affectionate terms, followed by periods of intense volatility. Their children have been exposed to these changes. It must be very confusing for the children. In my view the children need a period of stability and respite from change in their day to day lives.

8. Overall, I am of the view that the best interim arrangement for the children is for the boys to continue with the week about arrangement that has recently been reintroduced for them by agreement and for the girls to spend time with the father during the week he is spending time with the boys initially on Tuesday and Thursday overnight and increasing to alternate weekends. I note that this accords with the recommendation of Mr F in relation to the boys. I have not entirely adopted his recommendations in relation to the girls’ time or changeovers where that does not occur at school. I have deviated from his recommendations for the following reasons:

   a)In my view it would be preferable for the children to have uninterrupted alternate weeks so they have a greater prospect in settling in the home environment;

   b)The girls have been building up the time they spend with the father over a number of years and have had some limited overnight time with him although not extended overnight time. Their time should gradually be extended but they should have regular and consistent time with the father and the boys. As noted by Mr F:

   [170] The girls have a structural history that has seen them receive the bulk of their care from the mother since their birth. The father has had fluctuating and inconsistent levels of providing hands-on care to them.

   …

   [172]Developmentally, the girls are at a stage where they can be expected to manage non-intense separations from secure attachment figures. A structure of regular, frequent, broad-ranging and reasonably non-intense time is more likely to create the conditions for them to develop a greater understanding of and acceptance in their father as a trusted caregiver to them. 

   c)I envisage that most changeovers will occur from the children’s school and this is preferable given the high conflict to which the children have already been exposed. On occasions when school is not open my preference is for the children to transition to the other parent from home. In my view, if a parent is required to transport the children to another place that is more likely to invite the opportunity for conflict e.g. a parent running late, and, to date, having changeover at a public place has not protected the children from exposure to conflict. It is more convenient for the children for changeovers to occur at home. Finally, I consider that the parent from whose care the children are departing should have the responsibility to deliver the children to the other parent such that the need to alight from the car should be minimised. It also demonstrates to the children that parent’s support for them going to the other parent. Each parent will have the opportunity to nominate another person to assist the children moving into the care of the other parent if required.

9. Mr F recommends a variety of other orders, many of which already exist in the 2013 Order. To the extent he adds to the existing Order I am not satisfied on the untested evidence before me that such orders are justified or indeed enforceable.

10. In particular, while I am not persuaded at this point that the evidence supports the need for psychiatric assessment, I am of the view that the parents should resume counselling with someone such as Dr AA or some other suitably qualified person to address their ongoing dysfunctional parenting relationship.

11. Both parties seek a continuation of equal shared parental responsibility for major long term issues. As there is unlikely to be the need for such decisions to be made in the short term I do not propose to decline the request to continue such an order.

12. The boys will continue to spend equal time with each parent. While the girls time for the remainder of this year will not include weekend time (other than during school holiday time) I consider that the need to provide stability and protect them from exposure to conflict to be a greater significance in assessing what is in their best interests than having weekend time with the father.

13. For these reasons I make the Order set out above.

14. I note that this matter is listed for further directions before a Registrar on 11 August 2016.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 7 July 2016.

Associate: 

Date:  7 July 2016