STEVENSON & SHEPHERD
[2015] FCCA 1306
•21 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STEVENSON & SHEPHERD | [2015] FCCA 1306 |
| Catchwords: FAMILY LAW – Parenting – final orders by consent – consideration of Rice & Asplund principles – consideration of the asserted change in circumstances – consent arrangements to effect some changes in terms of the mother’s application and the father’s response – where such circumstances are not outside the normal vicissitudes of life – where it is in the best interests of a child if litigation is finalised – otherwise both parties’ applications be dismissed. |
| Legislation: Family Law Act 1975, ss.60B, 60CC |
| Carriel & Lendrum [2015] FamCAFC 43 Miller & Harrington (2008) FLC 93-383 Newling & Newling; Mole (Applicant) (1987) FLC 91-85 Poisat & Poisat (2014) FLC 93-597 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 |
| Applicant: | MS STEVENSON |
| Respondent: | MR SHEPHERD |
| File Number: | SYC 6311 of 2011 |
| Judgment of: | Judge Kemp |
| Hearing date: | 24 April 2015 |
| Date of Last Submission: | 24 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah |
| Solicitors for the Applicant: | Miller Goddard Solicitors |
| The Respondent appeared in person. |
| Counsel for the Independent Children's Lawyer: | Ms Conte-Mills |
| Solicitors for the Independent Children's Lawyer: | John Spence & Associates |
THE COURT ORDERS THAT:
By consent, the final parenting orders made on 14 March 2013, 24 April 2013 and 10 March 2014 be varied as follows:
(a)That order 5.1.1 made on 14 March 2013 shall commence in the first week of the school term when the father has spent time with X during the first half of the immediately preceding school holiday period and where the father has spent time with X in the second half of that school holiday period, then order 5.1.1 herein shall commence in the second week of the school term.
(b)That order 6 made on 14 March 2013 be varied by deleting the word “shall” and substituting the word “may” in the first sentence, deleting the word “text” and substituting the word “written”, deleting the words “dinner on the day he spend with X in accordance with order 5.1.2 herein” and substituting the words “special occasions should the father wish to do so and advise what, where and at what time the occasion is to be”, by deleting the words “a dinner” in the final sentence and substituting the words “an occasion” and by deleting the words “after dinner” where they appear in that order, so that order 6 now reads:
That the father may send a written message to Y and Z inviting them to special occasions should the father wish to do so and advise what, where and at what time the occasion is to be. And should Y and/or Z agree to attend such an occasion, the father will do all things necessary to facilitate that attendance including collecting them and delivering them home, or as they require.
(c)Order 9 of the orders dated 14 March 2013 be varied by the addition of the words “unless in the case of an emergency or an urgent need to travel” at the end of that order.
(d)Order 10 of the orders dated 14 March 2013 be discharged.
(e)Order 11 of the orders dated 14 March 2013 be discharged and the following order 11 be substituted in lieu thereof:
11.For the purposes of these orders, X’s school holiday periods are defined as follows:
(i)The commencement of the school holiday period shall be at the conclusion of the last day of each school term and conclude at the commencement of the first day of the following school term at which X is required to attend school.
(ii)The school holiday time halfway point, for the purposes of changeover, shall be deemed to be at 10.00am on the middle day where there is an even number of days and where there is an odd number of days (and an even number of nights) the changeover shall be at 5.00pm on the first middle day.
(f)Order 1 of the orders dated 24 April 2013, be varied by the deletion of the words “subject to the orders made on 14 March 2013” and of the words “save that the parties do all things reasonably required to encourage the engagement of any of the children with Unifam, pursuant to order 10 made on 14 March 2013, if so directed by Unifam in writing”.
(g)Order 2 of the orders dated 24 April 2013 be discharged.
By consent, notwithstanding these orders, X shall spend time with the mother from 9.00am to 5.00pm on Mother’s Day and with the father from 9.00am to 5.00pm on Father’s Day, or as otherwise agreed in writing.
Otherwise, the mother’s Initiating Application is dismissed.
Otherwise, the father’s Response is dismissed.
The appointment of the Independent Children’s Lawyer is discharged.
The matter is otherwise removed from the active pending cases list.
THE COURT NOTES THAT:
X shall remain in the care of the parent who has her in their care pursuant to these orders for Easter, Christmas and her birthday unless otherwise agreed in writing.
IT IS NOTED that publication of this judgment under the pseudonym Stevenson & Shepherd is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6311 of 2011
| MS STEVENSON |
Applicant
And
| MR SHEPHERD |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings commenced by the applicant mother on 3 December 2013 seeking a variation to order 5.1 of the consent orders made on 14 March 2013 which, together with orders made on 24 April 2013, constituted the parenting orders made in this Court with respect to Y, born (omitted) 1997 (currently aged 17 years)(“Y”), Z, born (omitted) 1999 (currently aged 15 years)(“Z”), and X, born (omitted) 2002 (currently aged 13 years) (“X”) (“the children”), to the following effect:
a)That Order 5.1 of the parenting orders be varied to provide “5.1 During the school term on alternate weeks from after school Wednesday until before school Tuesday on weeks as agreed and failing agreement commencing on the first week of each school term in even numbered years and the second week of each school term in odd numbered years.”
The father filed a response on 24 February 2014, which sought further orders by way of variation to the parenting orders. He sought:
a)That order 3 read:
“That Y and Z live with the mother and X shall live equally with both the father and the mother.
b)That order 4 read:
“That Y and Z shall spend time with the father in accordance with their wishes and the mother shall encourage and facilitate such time as requested by Y, Z or the father [emphasis added]”.
c)That order 5 read:
“5. That X’s time shall be shared equally between the mother and father as agreed between them or failing such agreement as follows:
5.1 That X shall live with the father from after school on Wednesday until after school the following Wednesday commencing in the first week of each school term in even years and the second week in odd years.
5.2 That X shall live with the father during school holidays at the end of terms I, II, & III for one half of each school holiday period as agreed or failing such agreement for the first half in even years and the second half in odd years.
5.3 The holiday period at the end of term IV (the Christmas holidays) shall be split into four periods. The first two weeks after breakup (period one), the final two weeks prior to return to school (period four) with the interim period to be divided equally between the parties (periods two and three). The father shall have the second and fourth periods in the holidays commencing in even years and the first and third periods in odd years.
5.4 At any other time by agreement between the parties.”
d)That a clause be inserted that reads:
“Holiday changeover date and time will be as agreed between the parties and failing such agreement as follows: During holiday periods that have an even number of nights the handover time will be 10:00am on the middle day. During holiday periods that have an even number of days (an uneven number of nights) the handover period shall be 5:00pm on the middle day.”
e)That order 9 read:
“That each party shall inform the other fully and in a timely manner before taking the children outside the Sydney Metropolitan area. For overseas or interstate trips a full school terms notice will be required and a complete itinerary, including contact details, provided.”
f)That a clause be inserted that reads:
“If the structure of the orders creates a situation where X spends more than 10 days away from either parent and she is within the Sydney metropolitan area then arrangements are to be made for contact to occur between X and her parent at some point so that this 10 day period is avoided. This contact shall be an overnight stay however if this is not practical then at the very minimum a meal should be shared with the current non residential parent.”
g)That a clause be inserted that reads:
“For Mother’s Day and Father’s Day, birthdays or other significant family gatherings when X is residing with the other parent she shall spend some time with the parent/person celebrating the day. This contact shall ideally be for a minimum of four hours but if this is not practical during the day then it will be a meal celebrated together either on the day or the preceding or following day.”
h)That a clause be inserted that reads:
“If both families are in the Sydney Metropolitan area on Christmas Day then X shall spend the period between 11:00am and 5:00pm with the family who she is not currently residing with.”
i)That a clause be inserted that reads:
“The orders are to be reviewed by the parties on an annual basis at the conclusion of term IV so that changes can be made to better reflect the changing circumstances of all the parties. This review may be done via email or directly.”
j)That a clause be inserted that reads:
“That for the purposes of these orders, the father’s wife, Ms K, shall be included in the same way as the father. In the event of the death of the father then the orders will continue to operate with Ms K acting as the other parent. In the event of the death of both the father and Ms K, X's Godfather, Mr M will assume the responsibility of the father’s role. The mother is to ensure that X continue to maintain her links with the father’s extended family and her step family.”
k)That a clause be inserted that reads:
“In the event of the death of the mother all the children are to live with the father and he is to ensure that the children continue to maintain their links with the mother’s extended family.”
The mother filed a Reply on 7 March 2014 which sought orders that the father’s Response be summarily dismissed and that he pay her costs on an indemnity basis.
On the first return date of the mother’s application on 10 March 2014, the Court made the following orders and notations:
1.By consent, order 5.1.1 of 14 March 2013 [there being a typographical error which referred to 2 May 2014, as amended by the slip rule on 24 April 2015] be varied to replace “Thursday” with “Wednesday”.
2.By consent, order 5.1.2 of 14 March 2013 [there being a typographical error which referred to 2 May 2014, as amended by the slip rule on 24 April 2015] be discharged.
3.Pursuant to s.11F of the Family Law Act 1975, the parties attend a Child Dispute Conference (“CDC”) with a Family Consultant nominated by the Child Dispute Section, being Ms B, on 2 April 2014 at 2.00pm and pursuant to section 11C of the Act, such conference be reportable.
4.The mother file a document setting out any changed circumstances for the child, within 7 days.
5.The father file a document setting out any changed circumstances for the child, 7 days after compliance with order 4 above.
6.The parties are to forward the documents referred to in orders 4 and 5 above to the family consultant prior to the CDC, and it is requested that the consultant have regard to any asserted change in circumstances and provide a memorandum to the Court on any Rice & Asplund threshold issue.
7.The parties are to file and serve an affidavit referable to the issue of the commencement of the father’s time in terms of the varied orders as made today within 28 days of today’s date.
8.By consent, neither party is to discuss with the children the status of the proceedings before this Court or of any documents filed in these proceedings.
9.The matter be adjourned to 19 May 2014 at 9.30am for mention.
Notations:
10.The father has 14 days to make enquiries regarding the interim orders that he seeks in relation to the conduct of the mother’s solicitor and to inform the Court on the adjourned date as to whether he seeks to proceed with that application.
11.The mother does not concede that on a proper interpretation of amended 5.1.1 that that will mean the father’s time commences the first week of each school holiday. The mother says that the father’s time should alternate depending on when the father has spent the last period of the school holiday time with the child.
12.The father’s interpretation of Week 1 is that it is the first week of the commencement of school term, regardless of whether he spent school holiday time with the child in the week immediately prior to the start of term.
13.If Ms B considers that the matter should be referred to Dr J then such a recommendation can be provided to the Court.
On the adjourned date of 19 May 2014, the Court made the following further orders and notations:
1.Order 1 as sought in the interim orders in the Response filed 24 February 2014 be dismissed. [That sought an order that the Court undertake or direct that an investigation take place into the professional conduct of the mother’s solicitor, Mr John Miller.]
2.Pursuant to section 68L of the Family Law Act 1975 (“the Act”), an Independent Children’s Lawyer be appointed for the children and the Legal Aid Commission of NSW is requested to provide such representation.
3.The parties provide to the Legal Aid Commission of NSW forthwith all documents thus far filed in these proceedings by that party together with all existing orders and copies of any relevant reports.
4.Leave is granted for the Independent Children’s Lawyer to issue more than 5 subpoena.
5.The matter be adjourned to 28 July 2014 at 9.30am for mention.
6.The mother’s legal representative forward to the Independent Children’s Lawyer, upon notification of any appointment, a copy of Dr J’s report and a copy of the Child Dispute Conference Memorandum of Ms B.
Notations:
7.The Court did not receive any document from the father in compliance with order 5 made on 10 March 2014.
8.Both parties have filed affidavits in compliance with order 7 made on 10 March 2014.
9.The parties have reached agreement with respect to the variation of the time regime for X, save that the mother says that is the only change to the final orders that she promotes. The father says that his agreement to that change is conditional upon the orders sought by him in his Response filed 24 February 2014 being made. [Emphasis added]
10.Mr Blackah submits that, on any adjourned date, the Court should set the matter down, so far as the orders sought by the mother are concerned, for a 2 hour hearing and the balance of the orders sought by the father should, otherwise, be dismissed as failing to satisfy a Rice &Asplund threshold.
11.The father says that the orders promoted by him should be determined at a final hearing when the Court could also consider any Rice & Asplund threshold issue.
12.If a full hearing of all matters was to proceed, a 2 day estimate would apply.
13.Given the issues raised by the father concerning the legal representative for the mother and the previous legal representative for the Independent Children’s Lawyer, the Court would be assisted by the appointment of a new Independent Children’s Lawyer. The Court requests that on the appointment of an Independent Children’s Lawyer, the Legal Aid Commission give consideration to the appointment of an Independent Children’s Lawyer, other than Mrs Adams, solely for the purposes of dealing with the father’s expressed concerns.
14.There are issues raised in the Child Dispute Conference Memorandum which raise matters that may require further investigation and report but they are also matters which might also be dealt with in considering any Rice & Asplund threshold issue.
On the adjourned date of 28 July 2014, the Court made the following further orders and notations:
1.By consent of the mother and Independent Children’s Lawyer (and not of the father) as follows:
a.The proceedings be listed for a hearing on a date to be advised on the threshold issue of Rice & Asplund for 3 hours/half day.
b.That the hearing proceed by way of oral submissions.
c.Any further affidavit material be filed and served 28 days prior to the hearing. No further affidavits are to be filed after that date without leave of the Court.
2.The parties are to provide a short case outline 3 working days prior to the adjourned date.
Notations:
3.The Court raised with the father obtaining legal advice.
On 15 October 2014, by chambers order, the matter was listed on 24 April 2015 for a half day hearing in relation to the Rice & Asplund threshold issue.
The parenting orders made on 14 March 2013 were to the following effect:
1.All previous parenting orders relating to the children be discharged.
2.The parties shall have equal shared parental responsibility for the children.
3. That the children shall live with the mother.
4.That Y and Z shall spend time with the father in accordance with their wishes, and the mother shall do all things necessary to facilitate such time if so requested by either or both Y and Z.
5.That X shall spend time with the father:
5.1 During the school term on a two week cycle as follows:
5.1.1In week one, from after school Thursday until before school Tuesday; and
5.1.2In week two, from after school Wednesday until before school Thursday.
5.2 During school holiday, for one half of each school holiday period as agreed and failing agreement, for the first half in even numbered years and the second half in odd numbered years; and
5.3 At any other time by agreement between the parties.
6.That the father shall send a text message to Y and Z inviting them to dinner on the day he spends with X in accordance with order 5.1.2 herein, and advise where and at what time dinner is to be. And should Y and/or Z agree to attend such a dinner, the father will do all things necessary to facilitate that attendance including collecting them and delivering them home after dinner, or as they require.
7.That each party keep the other informed of a current address and telephone contact number.
8.That each party keep the other informed of any matter arising in relation to the children’s education and medical treatment.
9.That each party inform the other before taking the children outside the Sydney metropolitan area.
10.That each parent shall attend upon Unifam, as directed by Unifam, for the purposes of receiving feedback from Unifam as to the children’s progress in counselling and advice as to any further steps that each party may take in facilitating and improving the children’s relationship with each parent.
11.For the purposes of these orders, X’s school holidays shall be deemed to commence at the conclusion of the last day of each school term, and conclude at the commencement of the first day of the following school term at which X attends school.
12.The Independent Children’ Lawyer shall have leave to provide a copy of these orders to each of the children’s school.
The parenting orders made on 24 April 2013 were to the following effect:
1.That, subject to the orders made on 14 March 2013, there be no further orders for any ongoing counselling for the children, save that the parties do all things reasonably required to encourage the engagement of any of the children with Unifam pursuant to order 10 made on 14 March 2013, if so directed by Unifam in writing.
2.A copy of these orders and reasons to be made available to Unifam.
3.That there be no order as to costs between the father and the
The above orders followed the delivery of the Court’s judgment on 24 April 2013 (Shepherd & Stevenson [2013] FCCA 110). That judgment is specifically incorporated into these reasons.
As referred to in paragraph 4 above, the parties agreed and consent orders were made on 10 March 2014, to vary the parenting orders made on 14 March 2013 to the following effect:
1.Order 5.1.1 of the orders of 14 March 2013 be varied to replace “Thursday” with “Wednesday”.
2. Order 5.1.2 of the orders of 14 March 2013 be discharged.
Accordingly, the final parenting orders are those that were made on 14 March 2013, 24 April 2013 and 10 March 2014 as referred to in paragraphs 8, 9 and 10 above (“the final parenting orders”).
On 2 April 2014, the parties attended a Child Dispute Conference with Ms B. Her memorandum was tendered and has become Exhibit “Court 1” and was to the following effect:
· The father and the mother have been involved in extensive legal proceedings since they first separated in 2004, in relation to parenting arrangements for the children, Y (16), Z (14) and X (12). During prior proceedings they saw Family Consultant, Ms K, for a CDC and a family report was prepared by Regulation 7 Family Consultant, Dr J.
· The current dispute appears to relate primarily to arrangements for X.
· The father indicated that he is not necessarily opposed to what the mother is proposing in relation to X living with him for 6 nights per fortnight commencing on either the first or second week of each school term (dependant on who X has spent the last week of the school holidays with). However, he said that he will not consent to the orders being varied to reflect this unless all the other issues (as identified by him) are also negotiated and adequately addressed.
Issues remaining in dispute
· Each parent alleges that the other parent has, in some way, repeatedly contravened the final parenting orders.
· The wording/semantics of various of the final parenting orders.
· The parents have different opinions about whether the final parenting orders for X are adequate or appropriate.
· The father asserts that the final parenting orders are grossly inadequate. He said, for example, that they do not detail arrangements around special occasions, school holidays and what might happen in the event he dies or is incapacitated in some way. He asserts that he made a mistake in consenting to them and that he did so under duress and without the Court being fully aware of all the issues.
· The father confirmed that his personal circumstances and his concerns about the mother, her mental health and her behaviour have not changed. He identified the changes that have occurred in the past 12 months as follows:
Ø X’s increased social maturity and cognitive functioning due to her age;
Ø X having started high school; and
Ø The mother intensifying her attempts to alienate X (from him) and noticeable changes in X’s behaviour towards him (as a result of the mother’s negative attitude towards him).
· The mother asserts there are no significant changes in her or X’s circumstances, other than X becoming increasingly distressed and stressed at the beginning of each school term due to her feeling confused about when she is due to commence living the 6 nights a fortnight with the father. To address this issue, the mother proposes that, in 2014, X commences living with the father for 6 nights per fortnight commencing on the first week of each school term and in 2015 she commences living with the father for 6 nights per fortnight commencing on the second week of each school term (and alternating each year thereafter).
· The father said that he is agreeable to Dr J completing an updated family assessment, if a report is ordered. The mother is opposed to Dr J having any further involvement in this matter, believing her to have behaved unprofessionally during prior proceedings.
· The family consultant cannot comment on any Rice & Asplund threshold issues from a legal perspective.
· If the matter were to be reheard, then due to the ongoing concerns expressed by each parent regarding the other parent’s mental health, a single expert report by a Child and Family Psychiatrist would be considered appropriate. If such a report is not possible then an up-to-date assessment by someone such as Dr J, who has knowledge of the family background and history, would be considered apt.
Family safety factors
· There are no current AVO’s issued in this matter.
· It appears that, during previous proceedings, issues were raised by the mother in relation to family violence and child protection issues and by the father in relation to child protection issues and parental alienation, all of which would appear to be ongoing concerns/issues for the parents. No new issues were raised with respect to family violence or safety concerns.
· The father continues to allege that the mother has mental health issues. In his opinion, the mother has a “mixed personality disorder with narcissistic and sociopathic tendencies”.
· The mother said that the father’s recent behaviour, in particular, his behaviour towards her and also her lawyer, raises her concerns about his mental health. She asserts she continues to feel intimidated by the father.
Issues relating to the children
· The father asserts X enjoys spending time with him. The mother does not, necessarily, disagree.
· There seems to be some consensus between the parents that X is doing OK at school.
Issues impeding resolution
· Extremely high level of conflict and acrimony between the parents.
· Each parent seems to be saying that it is the other’s parent’s behaviour (or their mental health) that is, primarily, driving the high level of conflict (between them).
· The father’s belief that the current orders are grossly inadequate and fail to meet X’s best interests. He asserts that the ICL previously involved in the case (Ms A) was, proficiently, negligent and that the mother’s lawyer, Mr J, also behaved in an unprofessional manner.
The Court notes the following by way of background:
a)On 12 January 2006, the parties separated.
b)On 21 August 2007, the first set of final parenting orders were made by consent in the Family Court of Australia.
c)On 16 December 2007, the parties were divorced.
d)On 30 October 2008, final property orders were made in this Court.
e)On 17 October 2011, the father commenced further parenting proceedings in this Court.
f)On 4 June 2012, the parties’ parenting proceedings were initially listed for a three day final hearing.
g)On 4 June 2012, the Court made by consent, orders in accordance with a minute of order document which provided as follows:
i)The children, Y, Z and X are to attend the Anchor Program at Unifam.
ii)The parties shall each do all things, sign all documents and attend all appointments, and facilitate the children’s attendance as required at Unifam for the Anchor Program.
The Court further ordered that a family report be prepared in contemplation of the final hearing. That report was prepared by Dr J, a clinical psychologist and Regulation 7 consultant (“Dr J”). That report became Exhibit “Court 1” on the hearing.
h)On 22 October 2012, the dates for the final hearing were confirmed as being 13 to 15 March 2013.
i)On the first morning of the hearing, being 13 March 2013, the father was represented by Mr O of Counsel. The mother was represented by Mr Blackah of Counsel. The Independent Children’s Lawyer was represented by Mr G of Counsel.
j)The Court heard from Dr J, who was orally examined by the parties’ legal representatives.
k)Following the conclusion of the Dr J’s evidence, the matter was adjourned to the second day of the hearing. On the second day, being 14 March 2013, the parties, very sensibly, reached agreement with respect to the parenting orders. The Court made those orders largely in terms of a minute of order prepared by the Independent Children’s Lawyer. Those orders are as set out in paragraph 8 above.
l)There were, however, two outstanding issues. One concerned the Independent Children’s Lawyer’s costs. The Independent Children’s Lawyer sought a payment within 14 days of the sum of $4,576.00, inclusive of GST from each party. The mother consented to the payment to the Independent Children’s Lawyer and an order was made to that effect. The father did not consent. On 24 April 2013, the Court ordered that there be no order as to costs between the father and the Independent Children’s Lawyer, as referred to in paragraph 9 above.
m)The second issue concerned the father proposing an order for specific counselling. The mother and the Independent Children’s Lawyer opposed a counselling order. On 24 April 2013, the Court made the orders as referred to in paragraph 9 above in respect of any ongoing counselling, effectively dismissing the father’s application.
n)On 10 March 2014, the Court made the further parenting orders as set out in paragraph 10 above, which had the effect of converting the father’s 6 nights per fortnight of 5 nights in Week 1 and one night in Week 2 to a block of 6 nights in Week 1.
On the hearing, the mother was represented by Mr Blackah of Counsel. The father was self-represented. The Independent Children’s Lawyer was represented by Ms Conte-Mills of Counsel.
The mother relied on her:
a)Affidavit filed on 3 December 2013;
b)Affidavit filed on 29 April 2014;
c)Affidavit filed on 26 June 2014;
d)Affidavit replying to the father’s Affidavit sworn on 27 March 2015 and filed on 21 April 2015; and
e)Statement of Change in Circumstances dated 19 March 2014 (Exhibit “Court 2”).
The father relied on his:
a)Affidavit filed on 24 February 2014;
b)Affidavit filed on 12 May 2014;
c)Affidavit filed on 29 May 2014; and
d)Affidavit filed on 27 March 2015.
The father also sought to rely on a number of affidavits including two of his filed on 17 October 2011 and 25 February 2013, his financial statement filed 21 March 2012, the affidavit of Ms R filed 31 May 2012, the affidavit of Mr C filed 9 November 2013, the affidavit of Dr P filed 21 February 2013, the affidavit of Ms X filed 21 February 2013, the affidavit of Ms J filed 21 February 2013 and the affidavit of his wife, Ms K filed 21 February 2013. All of these affidavits had been filed in the proceedings prior to the making of the final parenting orders. Apart from setting out a history of the parties’ dispute and the level of conflict, they had little relevance to the current application and the Court ruled that they could not be relied upon given the directions for the filing of affidavit material relevant to the issues for determination in these proceedings.
The following documents were received as Exhibits:
Exhibit
Document
Tendered by
Court 1
Memorandum of Ms B dated 2 April 2014
Court
Court 2
Statement of change in circumstances prepared by the mother
Court
Court 3
Recommendations in the family report of Dr J
Court
A
Screenshot of text message said to have been sent on 22 April 2015 from X to the father
Mother
B
Email from the father to the mother dated 22 April 2015
Mother
C
Specific paragraphs of the family report of Dr J
Mother
ICL 1
Orders sought by the Independent Children’s Lawyer
ICL
The Court deals with this matter on the basis of the affidavits read and submissions made. There was no opportunity to determine truth or contested facts given the nature of the hearing.
The Court accepts the following further background facts:
a)On (omitted) 1967, the father was born and he is currently 48 years of age.
b)On (omitted) 1970, the mother was born and she is currently 45 years of age.
c)On (omitted) 1997, the child Y was born and he is currently 17 years of age.
d)On (omitted) 1999, the child Z was born and he is currently 15 years of age.
e)On (omitted) 2002, the child X was born and she is currently 13 years of age.
f)On (omitted) 2014, the father and his wife Ms K had a child A and she is currently 6 months of age.
Consideration of Rice & Asplund
The seminal quote from Rice & Asplund (1979) FLC 90-725 states as follows:
The principles which… 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… 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…
While this statement is not a “rule”, it has often been referred to as a guiding “principle” for the Court when considering applications that involve the re-litigation of parenting orders.
In Newling & Newling; Mole (Applicant) (1987) FLC 91-856, Justice Nygh with whom Justices Bartlett and Fogarty agreed, in the Full Court of the Family Court of Australia stated that:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court… There must, in other words, be an end to litigation.
In relation to the application of the principle in Rice & Asplund (1979) FLC 90-725, in SPS & PLS (2008) FLC 93-363, Warnick J noted that:
At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’.
The Full Court of the Family Court of Australia confirmed this position in Miller & Harrington (2008) FLC 93-383 where their Honours said:
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
In Poisat & Poisat (2014) FLC 93-597, the Full Court of the Family Court of Australia took the issue one step further in saying that it is readily apparent that:
…while the nature of the hearing undertaken at either stage will have the best interests of the relevant child/ren as its paramount consideration (s 60CA [of the Act]), the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case.
However, on the specific question of whether the Court must address each s.60CC factor in detail, or even at all, the Full Court of the Family Court of Australia said in the recent decision in Carriel & Lendrum [2015] FamCAFC 43, the following:
…the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie.[Emphasis added]
In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
The Court then turns to the key question: whether there is a sufficient change of circumstances shown by the father’s evidence taken at its highest to justify embarking on a hearing? This question should be considered in the light of the statement by Warnick J in SPS & PLS (2008) FLC 93-363, where his Honour said:
…Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
The father submitted that the “rule” was simply an artificial construct used by the Court to “throw out cases that have no merit or are in the too hard basket”. The father maintained that the rule, notwithstanding its long-standing application, was inconsistent with the paramountcy principle in terms of the imminent danger to X and the irreparable damage to Y and Z. There was no evidence of imminent danger to X and the order that the father proposed in relation to Y and Z had little or no utility save for the potential to increase dispute between himself and the mother.
During the course of the hearing, the Independent Children’s Lawyer prepared a document being Exhibit “ICL1”, which reproduced the final parenting orders and included some orders which the Independent Children’s Lawyer was hopeful that the parties would consent to which took up some of the father’s concerns. The parties were sensibly able to reach agreement in respect of some of the terms of that document and those provisions are now the subject of consent orders in terms of orders 1 and 2, set out at the commencement of these reasons. However, to the extent that the parties were unable to reach agreement, Counsel for the Independent Children’s Lawyer submitted that those matters fell within the Rice & Asplund determination and accordingly, it was her position that that threshold had not been met and that there should be no further change to the final parenting orders. The consent orders effectively dealt with the mother’s application in terms of paragraph 1 above. Therefore, the only application that remained was the father’s in terms of paragraph 2 above.
The father’s position was that while he sought some changes which could be described as consequential or procedural orders, his principal aim was to obtain an order for X to spend 7 nights per fortnight with him and a change from the word “time” to “live with”, to the effect that X would spend equal time with each of the parents. The father also sought that an obligation be imposed on the mother in terms of the addition of the words “or the father” at the end of order 4 made on 14 March 2013 to the effect that the mother was obliged to do all things necessary to facilitate Y and Z spending time with him if so requested by either or both of them or the father. [Emphasis added]
The father says that order 4 of the final parenting orders was agreed to on the basis of encouraging and influencing Y and Z to spend time with him. He said that it had been a complete failure as, on the occasions when he had invited them to events, his offers have either been ignored or rebuffed. By seeking to insert the words “or the father” in terms of order 4, the father said that this would provide an obligation on the mother to encourage and facilitate such time, as requested by him.
In opposing the father’s application, Mr Blackah specifically referred to a number of specific paragraphs of the judgment, referred to at paragraph 9 above, as follows noting that the reference to the consultant is a reference to Ms K who had prepared a Child Dispute Conference memorandum on 7 March 2012.
(5)The consultant noted that the mother claimed that the boys did not want to see the father because of his asserted violent and rigid behaviour towards them. The father’s position was that, he believed, the mother had influenced the boys against him. The consultant noted, relevantly, an extremely high level of conflict and acrimony, poor parental communication and estranged relationships between the older two children and the father, together with, what she described as “adolescent” issues. A recommendation was made for the appointment of an Independent Children’s Lawyer.
Mr Blackah submitted that the father’s position as recorded was that the mother had influenced the two older children and that there was an extremely high level of conflict and estrangement between those children and the father involving “adolescent issues”. Mr Blackah then referred to paragraph 27 of the judgment, which was to the following effect:
27.[Counsel for the Independent Children's Lawyer] stated that the children have already been involved in an extensive history of counselling be it with Dr K, Ms K at the Court, seeing Dr J and through Unifam. [Counsel for the Independent Children's Lawyer] submitted, and the Court accepts, that one of the ongoing issues between the parents was the question of counselling, itself. [Counsel for the Independent Children's Lawyer] submitted that coercive orders would, in the circumstances of these children, be counterproductive and could amount to “systems abuse”. Further, [Counsel for the Independent Children's Lawyer] submitted that given the history and the degree of acrimony between the parents going back to separation in 2006, that counselling was unlikely to have any positive outcome and, indeed, would be a focal point for future parental disputation, which should be avoided in considering the ongoing best interests of the children. The Court accepts that position.
Mr Blackah submitted that given the above history, if the father was permitted to maintain his present application what the Independent Children’s Lawyer submitted and the Court accepted then would be compounded by the children’s involvement in further proceedings, interviews and potentially further reports which could amount to systems abuse. The father claimed that the counselling that had occurred “could hardly be described as systems abuse” given that he said, it occurred 5 times over 9 months and was not specifically directed at what he regarded was “parental alienation”. It is clear that that is what he sought and stated that: “I don’t think the Court has the courage to take it on”. It must be remembered that assertions of parental alienation has two sides to the equation. If a parent has a strong and meaningful relationship with a child, it is difficult for the other parent to successfully alienate a child against the other. It is important for the father to ensure that X does not see him as the promotor of conflict with the mother, otherwise she may in terms of expressing loyalty to her mother, begin finding spending time with the father problematic. The father should ensure that the time he has with the child builds up his own relationship with her in a positive way and doesn’t focus on his dispute with the mother.
The Court has already ruled on the father’s application for counselling orders. The Independent Children's Lawyer is of the view that the current live with/spend time arrangements are working well for X and the Court should be reluctant to interfere with that. The Court accepts that position and weight is attached to the child’s views as reported by the Independent Children’s Lawyer.
Mr Blackah referred to paragraph 29 of the judgment, which was to the following effect:
29.Dr J, in her oral evidence, indicated that the father had to some extent become preoccupied by the dispute and with the thought that the children should be spending time with him, without, necessarily, putting himself in the shoes of the children. Much of Dr J’s evidence relates to matters that were then in dispute between the parties which have now been resolved, as a result of the consent final parenting orders. When asked about counselling, Dr J was of the view that it would not necessarily be of any assistance to Y, given his age and that it would not be appropriate to make a coercive order in that regard.
Mr Blackah submitted that when considering Dr J’s evidence her view was that the father had become preoccupied with the dispute without putting himself in the shoes of the children and those words were predictive of the current application some 2 years down the track, with little changed from the father’s perspective.
Mr Blackah referred to paragraph 30 of the judgment, which was to the following effect:
30.Dr J expressed some further reservations that any orders in relation to Z could, potentially, cause further parental conflict. In answer to Mr Blackah’s questions, Dr J agreed that the Unifam counselling had not changed anything, even though it had commenced in about June 2012. Dr J was of the view that both Y and Z were, however, positive about the involvement of the counsellor. Her view was that any compulsory counselling had probably reached the end point so far as Y was concerned now. Her view so far as Z was concerned was that any future counselling should not be open-ended. Dr J noted that her understanding was that the boys had been going to counselling weekly at least until Christmas 2012. She did not, however, make any positive recommendation for any “other” ongoing counselling and weight is attached to that.
Mr Blackah submitted that nothing had relevantly changed since the Unifam counselling had commenced in 2012.
Mr Blackah referred to paragraph 32 of the judgment, which was to the following effect in reciting the father’s submission on various discrete issues:
32.The father submits that:
(a)The older children, Z and Y, have no relationship with him at all due, to a significant degree, from an environment of negativity that has been fostered by the mother towards him. The mother disputes that and says that there is no evidence of parental alienation.
(b)Dr J thought that, without the intervention of the Court, neither Z nor Y would have any contact with the father in the short to medium term, which, she considered, was not in their best interests.
(c)If orders for some form of family counselling are not made by this Court, the probability is that Z and Y will have little, if any, meaningful contact with the father.
(d)Dr J thought that the father acknowledged that he was not faultless and had, at times, behaved in ways that had hampered rapprochement with the boys. The mother says that Dr J was only able to identify, in relation to the father’s said acknowledgement, the circumstances surrounding the passport applications for the boys.
(e)Dr J thought that the mother’s denials that she had not, in any way, encouraged the boys’ negative attitudes towards the father were unlikely, given that she considered that it was likely that the mother had not encouraged the children’s relationship with the father either overtly or more subtly due to her own antagonistic feelings towards him.
(f)Dr J did not accept that the mother had been entirely neutral in the children’s interaction with the father and was of the view, given the ages of the boys, that she had negatively influenced them in their attitude towards the father.
(g)Dr J was, further, of the view that it was not good parenting to allow for the children, themselves, to determine whether or not they wished to maintain a relationship with the father.
(h)Dr J was of the view that X had a good relationship with the father.
(i)Dr J was of the view that the mother’s expressed concerns about the father’s time with X were inconsistent with her continuing willingness to allow her daughter to enjoy her current level of contact with the father. The Court notes that the mother has not conceded that she currently has any of the same concerns that she appears to have historically expressed.
(j)Dr J regarded it as, simply, impractical to force Y to spend time with the father against his will. The father says that he has accepted this position.
(k)Dr J recommended that “the father, the mother, Y, Z and X continue with their work with Unifam.”
(l)Dr J recommended that Unifam work with the parties and Z to assist in the reconciliation of their relationship.
(m)That Z’s position was of particular concern given that while he stated that he did not wish to be interviewed with the father, Dr J noted that “he appeared to be slightly curious to see his father, for example peering into the office waiting room when he knew his father and X were there…”
Further, Dr J reported that “Z is still relatively young and there may be more scope for therapeutic intervention to assist in the repair of his and his father’s relationship. The family are engaged with Unifam who should be able to assist in this process.”
(n)Further, while the mother submits that counselling would be of little value or that the father had some agenda other than a therapeutic resolution to the rift between himself and his sons and that the boys were likely to see that as a process whereby the father was trying to wear them down until they eventually gave in to his demands that they spend time with him, Dr J was, however, of the view that:
“I didn’t get the sense that they sort of felt that they were being worn down. I mean, I felt that they both seemed quite positive about the counsellor that they saw, but I think they felt that, you know, they had been able to say what they felt and I don’t think there was any sense in them thinking they had been sort of – they were being forced to do anything or their views were being worn down.”
and, accordingly, there was no real basis for counselling not to continue simply because of the effluxion of time.
(o)The father conceded that counselling should not be indefinite.
(p)The father was critical of the Independent Children’s Lawyer who, he said, had given no real reason for any objection to ongoing counselling, other than it had been tried and failed at the Anchor Counselling Centre and did not investigate any particular reason as to why it was said that that failure had occurred. The father was also critical that the Independent Children’s Lawyer chose not to make any distinction between the children, given Dr J’s statements about Z’s position referred to in (m) above.
(q)That the Anchor program was not a suitable counselling solution to the present problem given that it was geographically removed from where both parties lived and that in a 9 month period Y had attended 6 sessions and Z only 5 and that that has not been productive of any time with the father. The father says that the type of counselling that is to be ordered must reflect that reality, with its goal to be “remedying the child’s developmental deficits, transforming the child’s distorted “good/bad” views and polarizing feelings towards both parents into more realistic ones”, Parental Alienation: the facts and the fiction; Dr T Altobelli; 15th National Family Law Conference, 2012; page 12. That suitable counselling, he submitted, would, necessarily, include a psychiatrist or clinical psychologist who has some specialty dealing with children who have become alienated from one parent and, in that regard, Dr J could recommend a suitable practitioner.
(r)That it would also be beneficial for any counselling to be supervised and monitored by the Court, notwithstanding any preference for finality. See Calvert and Calvert [2008] FMCAfam 101.
(s)That if the Court declines to make an order for family counselling that is inclusive of all of the children, then any order should, at least, focus on reconciling the relationship between the father and Z, as a priority.
Mr Blackah submitted that on the father’s own case, Y and Z have no relationship with him and that remains the position today. Mr Blackah submits that to entertain any further application regarding Y and Z would simply be an exercise in futility to indulge the father’s “sheer bloody mindedness” and his refusal to accept that, at least at this point in time. In this regard, the Court accepts that there is no utility in any application to amend the existing orders concerning those children. The father refuted that he was “bloody minded” because he maintained that it was the mother who was the applicant and that, therefore, if anyone was “bloody minded”, it was her. The father, however, quickly agreed to the only order proposed by the mother but then sought to make it conditional upon a whole range of other orders as sought by him. In this regard, the Court refers to paragraph 31 above. The Court accepts in those terms that the father was in fact the true applicant. The father reiterated that he should not be seen as “bloody minded” simply because he wanted to “fight” for his children. However, he saw that fight as against the mother in terms of the two older children being “stolen” from him and that he now believed that the mother was exerting “pressure” on the “third one”. The father was critical that X had not spent the ordered time with him during the course of the week of the hearing and that this he said was the “first time”. However, this issue related to the child being returned after already spending school holiday time with the father and not having seen the mother for a number of days (as referred to in Exhibit “A”), to then be returned to the father for the commencement of the school term time. This problem has now been rectified by the parties’ agreement in terms of order 1(a) and the Court will make that order as the parties have consented to it to overcome this issue.
Mr Blackah also opposed the addition of the words “or the father” in order 4 as he submitted that this had the potential for further conflict between the parents. The father maintained that if he asked the older children to attend a ceremony, the mother would be obligated to do everything she could to encourage them to attend. The father acknowledged that they did not have to go, but said that there would be a greater onus on the mother to facilitate that. Both Mr Blackah and the Independent Children’s Lawyer submitted that such an addition to the order had enormous potential for further conflict between the parties. The Court also understands that the older children have not spent any time with the father in accordance with their wishes and the father has not raised any issue previously about the mother not complying with the obligations contained in order 4, presumably on the basis that there was no evidence that either or both of Y and Z had requested to spend such time. The intent of order 4 was to place an onus on the mother to encourage and facilitate such time as was requested by Y and/or Z. The Court sees the father’s insertion of the words “or the father” as potentially exposing the mother to an ongoing criticism by the father and indeed for there to be possible contravention proceedings arising out of that imposition. If the order was so amended, it would fundamentally change the terms of the existing order 4 in circumstances where the Court notes that Y is now aged 17 years and Z is now aged 15 years. There is little by way of action which the mother could otherwise take to facilitate the time requested by the father if the two older children did not wish to take that up. The Court accepts the mother’s and the Independent Children’s Lawyer’s position in respect of that issue.
Change in Circumstances
Taking the father’s case at its highest, he says that the following matters amount to a change in circumstances:
a)X has a baby sister and has developed a strong bond with her. The mother accepts that position and says that that is a good thing. Mr Blackah submits that an additional night in the father’s home is unlikely to make any significant difference to the relationship between X and her baby sister, which is already a close one. The father himself agreed that the one night per fortnight was only approximately 20 nights per year and while it would help him logistically, it was not a “major deal”. The father maintained, however, that it would send a message to the mother and the older children that he was an “equal” parent. Mr Blackah submitted that that was not a sufficient reason to reopen a whole parenting case so that the father could pursue an application so as to strengthen a bond which all parties acknowledged was already a strong one. The Court accepts that submission.
b)X’s similarly strong relationship with her step-siblings in the father’s household. Mr Blackah submits that the same submission would apply to X’s relationship with them as referred to in (a) above and the Court accepts that.
c)That X is attending high school and will go through puberty. Mr Blackah submits that that is a normal part of the development of every child and would have been anticipated by the parties at the time of the final parenting orders. The Court accepts that submission.
d)That the mother has formed a relationship with a man who is now spending time with X. That again, without any more evidence is not a significant change in circumstances.
e)That a significant change has occurred due to the making of the orders themselves. Mr Blackah submitted that with respect to the father, it could not be said that a parent should be permitted to come to the Court saying that he or she consented to orders and the effect of those orders is that there has been a change. That would be apparent from the orders themselves. The Court accepts that submission.
f)That the mother has or will impact on X so as to prevent her from spending time with the father or maintaining a relationship with him. Mr Blackah submitted that this was exactly the behaviour that the father referred to in his trial affidavit filed prior to his entering into the final parenting orders and as such, the nature of his complaints are not new. Mr Blackah also submitted that the mother continues to encourage X to spend the time with the father in accordance with the orders, being 6 nights per fortnight and half school holidays and that whatever was asserted as being the mother’s attitude that had not manifested in any behaviour that has prevented time in accordance with those orders. The Court notes that no contravention proceedings have been brought as at the time of the hearing. The father argued that he had not brought those proceedings in the best interests of X as he was not “litigious” and to that extent he is to be credited.
g)That X had confronted the father with a demand for an acting agent. Mr Blackah said that this had been an issue between the parties for some time and was referred to in Dr J’s report. X’s only complaint against the father was that he would not agree to her getting an acting agent so that she could be a movie star. Mr Blackah maintained that this was an unfair criticism of the mother and was typical of how the father had conducted this litigation. Mr Blackah submitted that it evidenced an inability to change and that as such the father should not be given an opportunity to “drag” the parties and the child through further proceedings. There is some force in Mr Blackah’s submission that if “it ain’t broke, don’t fix it”. Mr Blackah somewhat descriptively argued that the father wanted to “keep picking at a sore until it bleeds” and the Court should not allow the father to do so.
h)That there have been a number of contraventions by the mother as set out in his affidavit, including breaching orders for the return of X and failing to notify him of a recent holiday to (country omitted) and (country omitted). There is some force in Mr Blackah’s submission that none of those asserted acts of contravention ever found their way into an application. The Court repeats the matter set out in f) above.
i)The matters raised by the father with Ms B including his personal circumstances and his concerns regarding the mother’s mental health (asserted personality disorder) and her behaviour have not changed from those claimed by him as existing at the time of the final parenting orders.
j)That he had come to the Court looking for help and if he couldn’t get it, he wasn’t sure “what [he was] supposed to do”. So far as the Court is concerned, there are final parenting orders which should be enforced and the Court is not in a position to micro-manage parties’ lives, nor to order for civility in the parents’ relationship . To an extent, this was conceded by the father when he stated: “you can’t legislate for courtesy”. To some extent, if the father was not so proscriptive in his dealings with the mother, he may find that he will receive a different response from her. The father was concerned that he had received notification of X’s recent departure from Australia while she and the mother were in the airport departure lounge and he said he had only received notification of Z having a broken arm from X and not from the mother herself. The Court is hopeful that the parties would be able to improve their communication over these types of issues, however it certainly does not assist the father in submitting that: “if this was a criminal court, I would be giving a victim impact statement and if this was a civil court I would be suing [the mother] for millions”. The father needs to effect a behavioural change to in turn receive one from the mother.
Mr Blackah further submitted that the father should concentrate on spending appropriate and fun time with X and that it was unreasonable to want more from his daughter in terms of seeking the orders that he does. There is force in Mr Blackah’s submission that the father stands a risk of losing what he has in persisting with his application and his complaints against the mother. Mr Blackah submitted that, in dismissing the father’s claim, the Court would be acting not only in the best interests of the child (which the Court accepts) but also in the father’s best interests as to continue his application would have the potential for the exact opposite effect of what he wants and could harm his otherwise good relationship with X.
In concentrating on the father’s argument about notification for travel, Mr Blackah submitted that what the father was seeking was an unreasonable imposition on the mother because there was no prospect of the father’s time with X being taken away from him. Mr Blackah stated that the father: “has sought to inflict control on the mother for the past 8 years… hours have been wasted talking about things that do not matter… this is what typically happens… in relation to Christmas, he had X for Christmas and New Year and the mother hadn’t complained about that… the child is 13 not 3 years old… she can cope from being away from a parent for a few weeks... this is just more of the same and only reinforces why hell would freeze over before you would allow the father to reopen the parenting case”.
The Independent Children’s Lawyer proposed an order in terms of Exhibit “ICL1” would replace the existing order 9 which provided that each party inform the other before taking the children outside the Sydney metropolitan area, given that that order was somewhat prohibitive and had caused the parties some dispute. The Independent Children’s Lawyer’s proposal was that each party inform the other before taking the children or any of them interstate or overseas (rather than simply out of the Sydney Metropolitan area) and that such travel should only occur in the time the travelling parent ordinarily has the child in their care, unless otherwise agreed in writing. The father requested a stipulated notice period of 21 days, but indicated that he was negotiable. Mr Blackah opposed a notice period because he said the mother was able to travel at relatively short notice to (omitted) to take up accommodation available to her there and further, to travel overseas ((country omitted)) for work. The Independent Children’s Lawyer then proposed that notification could be made within 14 days, unless in the case of an emergency or an urgent need to travel to resolve the impasse and to preclude a Rice v Asplund issue. Mr Blackah submitted that the mother’s travel plans may not amount to an “emergency” or an urgent “need” to travel. The inability of the parties to agree on what appears to the Court to be a relatively simple order clearly evidenced the level of their conflict and inability to agree. Therefore, the only agreed amendment was that order 9 stand with the addition of the words “unless in the case of an emergency or an urgent need to travel”.
The father in his affidavit of 24 February 2014, stated that he was under considerable pressure to sign the orders promoted by the Independent Children’s Lawyer at the time and said that he did so “against [his] better judgment”. The father said that he had “a gun to [his] head”. He maintained that he had been “railroaded” by the Independent Children's Lawyer and that his barrister had only come into the matter the day before the hearing. He asserted that the result of that was the orders were a “dog’s breakfast” and that he had been told: “we will sort them out later”. The Court has to rely heavily on the parties’ legal representatives when consent orders are handed up. Otherwise, every dissatisfied litigant would seek to put in issue the circumstances or inadequacy of legal advice given at the time consent orders were entered into when that party was legally represented. The father makes serious assertions against his own legal representative, where they have had no opportunity to respond. No affidavit was filed from any of the father’s legal representatives. Those matters do not assist the father. The father said that the orders were totally inadequate as they were silent on number of important areas and that there were many opportunities for misinterpretation. The father said that he had sought to amend the orders directly with the mother on no less than 16 separate occasions and with her solicitor on three occasions since the mother commenced these proceedings. He said that there had been no response from either the mother or the mother’s solicitor. However, in this regard the Court noted on 19 May 2014, that:
“the parties have reached agreement with respect to the variation of the time regime for X, save that the mother says that is the only change to the final orders that she promotes. The father says that his agreement to that change is conditional upon the orders sought by him in his Response filed 24 February 2014 being made.”
(emphasis added)
The father’s criticisms of the mother in he said, leaving X unattended regularly at home with unfettered access to the internet and her non-attendance at parent-teacher evenings did not fit well with, even on his assertion, an equal time regime operating between the parents.
No doubt the father saw himself as providing a good family model. He said his current wife is a (occupation omitted) and (omitted) at a (employer omitted) and her son B, is the same age and in the same year as X and her daughter is one year younger and that the three children have bonded into a very tight knit unit. That is not disputed by the mother. Indeed, as Mr Blackah submits, these matters have been a very positive outcome for the continuation of the final parenting orders in their current form. Weight is attached to that submission.
The father says that the final parenting orders were silent upon arrangements for Easter if it is not part of the regular school holiday period. The Independent Children’s Lawyer’s proposal was for a notation to the following effect:
That X shall remain in the care of the parent who has her in their care pursuant to these orders for Easter, Christmas and her birthday, unless otherwise agreed in writing.
provides some clarification in terms of the current final parenting orders. The Court is of the view that that notation can be made without disturbing the principles in Rice & Asplund.
Similarly, the consent order for the purposes of the definition of the holiday periods, overcomes some of the issues raised by the father.
The issue of notification for travel arrangements as referred to above, clearly caused some ongoing conflict between the parties. The mother’s position was that in August 2013, she had received the opportunity of travelling to (country omitted) at very short notice. The father says that he was only notified from the airport departure lounge some three hours before X left Australia to travel to (country omitted). The father said, albeit without any evidence produced, that the mother had informed the school and the child had informed her school friends at a much earlier time about this trip, but that he had been kept in the dark. As said, the Independent Children’s Lawyer sought to effect a consent order which could overcome these problems. However, it became clear that both parties in insisting on their own positions would potentially only cause them to come into further conflict in seeking to develop an order. In those circumstances, there is already an order which requires each party to inform the other before taking the children outside the Sydney metropolitan area and that order will otherwise stand.
The father’s concern as to the final orders being silent on Mother’s Day and Father’s Day has now been overcome by agreement as has the option of time on any other special or significant days in terms of order 2 above.
The father says that the final orders were silent on what would happen for X and the older children in the unfortunate circumstances of the death of one of the parents and he proposed orders to deal with that. Those orders, however, would require his current wife to become a party to the proceedings. She has not. The orders also refer to other third parties and they impose obligations on them in circumstances where those events have not yet occurred. In any event, the Court cannot determine what order would be in the best interests of the children if either the mother or father were to die and, in any event, given that there is no suggestion of either parties’ imminent death, the Court questions the utility of such orders and why the father feels the need to seek them. Further, there are potentially other ways for the father to deal with any concerns he may have in this regard, including in some form of testamentary expression. The Court declines, in those circumstances, to make orders as sought by the father in the terms expressed in his response.
While the father is highly critical of the mother, it is the father’s interaction with the mother which raises significant concerns. The father is critical of her behaviour which he sees as unilaterally acting to suit her immediate desires and by so doing, creating drama and unnecessary conflict which he says is aimed at driving a wedge between him and his family and X. The father asserts that there are issues with the mother’s mental wellbeing. The father asserted that the mother “ticked every box” with respect to parental alienation, given that the older children were resisting contact with him, denigrating him and doing everything that fits the profile of children who have been alienated. The father saw this as abuse and stated: “there are enough mandatory reporters in this [Court] room to take the matter further”. These issues were all previously raised by the father in his material filed in the proceedings but, again, are largely inconsistent with his proposal for an equal time regime with the mother concerning X. In any event, given that these accusations are not new, they do not amount to a significant change in circumstances to warrant the further intervention of the Court.
The father also proposed that the large school holidays be split so that X would not go for a lengthy period of time without seeing either parent. As Mr Blackah submitted, X is now 13 years old and in high school and it is important for each parent to have extended periods of time with X given that level of maturity. The Court does not accept that this amounts to a significant change in circumstances.
The Independent Children’s Lawyer spoke to X and the Court was informed that it is X’s position that she does not wish to change the orders. The Independent Children’s Lawyer has put that position to the Court and given X’s age, weight is attached to it.
There is no doubt that the father has some fear for X not spending time with him given that Z and Y have not spent time with him, notwithstanding that there is an order which enables that to occur if they wish to. The father said that he had been spending time with them until one day he received an email from one of them saying that they would not be spending time with him and that thereafter, he said the mother has alienated the older two children who now do not want to spend any time with him. That was known to the father at the time of entering into the final parenting orders as it is referred to in the family report of Dr J and is not new.
It is instructive to look at Dr J’s report and in particular, the paragraphs relied upon by the mother, which have been marked Exhibit “C” in these proceedings. The identified paragraphs are the paragraphs in which Dr J identified the issues between the parties. Those issues were allegations by the father that the mother had actively encouraged Y and Z to reject him and had sabotaged his relationship with them, allegations by the father that the mother had a personality disorder, allegations by the mother that the father was physically violent towards her during the marriage, allegations by the mother that the father had in the past physically assaulted Y and Z, allegations by the mother that the father had acted inappropriately towards X and statements by Y and Z that they do not wish to spend time with the father or to have a relationship of any sort with him due to their fears of him. In paragraph 27 of the family report, the father reports that he had always felt that the mother had deliberately sought to sabotage his relationship with Y and Z but that he never had any firm evidence of this. He said that having spoken to Mr C, with whom the mother formed a relationship very soon after he and the mother separated, he had the evidence to back up his suspicions. He reported that the mother’s ex-nanny, Ms W, had also provided information about the mother’s behaviour and he said he would like the mother to be held accountable for her part in the “whole mess”. At paragraph 34, the father said that he believed the mother had a personality disorder and needs to be the centre of attention and have a male in her life acting as her protector. He stated that he believed the boys had been encouraged to take on this role in relation to the mother and said that he believed that both he and Mr C had been drawn into this role in the past. In paragraph 41, it was clear that X had stated that she loved the father a lot and that she enjoyed spending time with him, that they had “fun” and went on “adventures a lot”. She reported involvement with outdoor activities and camping. The only complaint that X had against the father is recorded in paragraph 43 and that was that he would not agree to her getting an “agent” so that she could be a movie star. She said that the mother had been in the first “(omitted) ad” in Australia and that she wanted to do similar things. In this regard, these are the same matters that the father now raises in support of his application for fresh parenting orders.
The recommendations of Dr J are contained in paragraphs 62 to 66 and are as follows:
That Y, Z and X live with the mother. That the mother and the father have equal shared parental responsibility for the children. That no orders be made in relation to Y spending time with the father, and that X spend time with the father five nights a fortnight, one night after school in week 1 and four nights in the second week as well as half school holidays.
It was also recommended that:
The child, Z, works towards spending time with the father on one regular day a week for lunch or dinner, and that that time should coincide with the time that the father had with X.
While the father makes complaint about the process that the parties engaged in in reaching the final parenting orders, there are many reasons for a party to settle parenting proceedings. Those reasons may include legal advice given the costs associated with running proceedings and having certainty in the outcome. In this regard, when the father settled the proceedings in March 2013, the father achieved final parenting orders whereby X spent six nights a fortnight with him. The Court notes that Dr J had recommended only 5 nights per fortnight. The balance of the orders very much reflected the recommendations made by Dr J. That may well have been a reason for the father settling when he did. That is, however, conjecture and is just one of the reasons that the Court does not look into all of the circumstances surrounding the making of consent orders where there is otherwise jurisdiction to make that order.
The principle in Rice & Asplund operates on the basis that parenting orders made by consent are in the best interests of the children and that unless there is a significant change in circumstances, those orders generally remain in the best interests of the children. The Court also notes that this is particularly so when it is the parents of the children who have reached agreement as to how they will parent their own children. It is not up to the father to submit as he does, that “the most minimally thoughtful perusal of the existing orders would show that they simply do not reflect the best interests of the child at the time they were written.” His criticism is that he consented to those orders. There is no requirement for parenting orders to be made after a defended hearing. Indeed, this would be inappropriate in terms of the Act (see s.60B(2)(d) of the Act).
In his oral submissions, the father was extraordinarily critical of the mother. The Court accepts that the father was self-represented and that what was said in submissions is not evidence. However, it was clear that he had concerns about the mother and that those concerns had the potential for future negative impact on X. In his submissions, he gave an example of this in that he had attended a parent-teacher interview where the teacher was surprised when he showed her the Court’s orders as the teacher he said had no idea that there was any animosity or conflict between the mother and the father. This was a surprising statement to make given that informing the teacher of conflict only sought to elevate something in the teacher’s mind when the teacher had not been aware of it previously. The Court is perplexed that the father appeared to view this as a criticism of the mother and supportive of his fears for X. Clearly, the mother had not then raised any conflict with the teacher as a matter of concern for the child.
In relation to the father’s concerns about not being an “equal parent”, he has an order for equal shared parental responsibility. The father has not focused on that. Rather, the father has focussed at times obsessively, on an equal time or “live with” arrangement with X. As the father himself stated, given that he already has 6 nights per fortnight to increase to an equal time arrangement is not a “major deal” (at paragraph 35(a) above). In this regard, the Court can see little or no benefit in re-opening the parenting proceedings insofar as X was concerned given that it more than likely would increase the level of conflict between the parties and has the potential to expose X to that conflict.
Conclusion
The evidence taken at its highest at this stage is not sufficient to embark on a further parenting hearing for the following reasons:
a)It is not in the best interests of the child to be the subject of further litigation, particularly given the limited nature of the dispute;
b)Further litigation will not resolve the real issues between the parties, namely entrenched distrust and an inability to communicate or work together, noting that this was also the position at the time of the final parenting orders; and
c)The child’s expressed views, as stated to the Independent Children's Lawyer, that she was happy with the current arrangement, save the issues surrounding the end of school holiday periods and the transition into school term time arrangements which have now been dealt with by consent orders.
The Court is of the view that:
a)Order (i) as sought by the father would expose the parties and the children to an ongoing review of the final parenting orders, where the father submitted that there may be only “changing circumstances”. That would defeat the intent of there being final parenting orders and the advantages flowing to the parties from that namely certainty and the removal of ongoing disputation. It is not a simple matter as the father says in his submissions, for there to be an email between the parties with an obligation to review the document. While the father says that he believed the Court had been somewhat frustrated by the parties’ failure to negotiate “in the shadow of the Court” and that he had 20 or more emails to the mother seeking to negotiate which he said had been ignored, that is not the test. The review process sought by the father given what he said was the mother’s lack of response, is likely to cause further disputation between the parties on the father’s own case.
b)Order (j) as sought by the father is arguably beyond jurisdiction and more in the nature of a testamentary/guardian appointment in that the father seeks to prescribe by order in this Court what would happen in the hypothetical event of his own death and the death of his wife, Ms K, not a party to these proceedings, including the allocation of the father’s role to Ms K in the event of his death and in the case of her death to Mr M similarly, not a party to these proceedings. In the event there was jurisdiction, the Court would not exercise it as there is insufficient evidence to determine whether such orders if they could be made, would be in the best interests of the children at the relevant time.
c)Order (k) as sought by the father has similar problems to that raised in (b) above namely that while it is likely that if the mother was to die the children would otherwise live with the father, that potentially could be the subject to application made by any other person concerned with the care, welfare and development of the children at the time. That, however, is not something that the Court would entertain in circumstances where the mother is a party and otherwise alive and well.
The Court is of the view that to allow any further re-opening of the parenting proceedings to seek to clarify orders, which may have been better drafted if more time had been taken in their preparation, has the potential to expose the children particularly X, to ongoing parenting conflict which the Court is of the view is not in their best interests.
Accordingly, the Court is of the view that the orders which the parties have consented to may be made by way of variation to the final parenting orders, but that those orders, where the parties have been unable to reach agreement do not meet the relevant Rice & Asplund threshold and the Court is of the view that the father taking his concerns and his evidence at its highest, has not established any significant change in circumstances which would permit the parties to re-agitate those parenting proceedings, at this time. Further, that a consideration of the factors under s.60CC of the Act in considering the best interests of the children do not support a reopening of the parenting proceedings.
Given the parties’ agreement on 24 April 2015 to discharge order 10 made on 14 March 2013, then that effectively means that the Court should also vary order 1 (by the deletion of the words commencing “save that the parties” to the end of that order) and to discharge order 2 made on 24 April 2013.
The Court notes that order 12 made on 14 March 2013 will enable the Independent Children’s Lawyer to provide the above orders to the children’s schools and, in that regard, the Court provides as an annexure to these reasons, a consolidated form of orders which takes up the various amendments for the parties’ assistance.
The Court is of the view that the appointment of the Independent Children’s Lawyer should be discharged.
The matter is, otherwise, removed from the active pending cases list.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 21 May 2015
Annexure “A”
1.All previous parenting orders relating to Y, born (omitted) 1997 (currently aged 17 years)(“Y”), Z, born (omitted) 1999 (currently aged 15 years)(“Z”), and X, born (omitted) 2002 (currently aged 13 years)(“X”) (“the children”) be discharged.
2.The parties shall have equal shared parental responsibility for the children.
3. That the children shall live with the mother.
4.That Y and Z shall spend time with the father in accordance with their wishes and the mother shall do all things necessary to facilitate such time if so requested by either or both Y and Z.
5.That X shall spend time with the father:
5.1 During the school term on a two week cycle as follows:
5.1.1In week one, from after school Wednesday until before school Tuesday; and
5.1.2Deleted.
5.2 During school holiday, for one half of each school holiday period as agreed and failing agreement, for the first half in even numbered years and the second half in odd numbered years; and
5.3 At any other time by agreement between the parties.
5.4 That order 5.1.1 shall commence in the first week of the school term when the father has spent time with X during the first half of the immediately preceding school holiday period and where the father has spent time with X in the second half of that school holiday period, then order 5.1.1 herein shall commence in the second week of the school term.
6.That the father may send a written message to Y and Z inviting them to special occasions should the father wish to do so and advise what, where and at what time the occasion is to be. And should Y and/or Z agree to attend such an occasion, the father will do all things necessary to facilitate that attendance including collecting them and delivering them home, or as they require.
7.That each party keep the other informed of a current address and telephone contact number.
8.That each party keep the other informed of any matter arising in relation to the children’s education and medical treatment.
9.That each party inform the other before taking the children outside the Sydney metropolitan area, unless in the case of an emergency or an urgent need to travel.
10.Deleted.
11.For the purposes of these orders, X’s school holiday periods are defined as follows:
11.1The commencement of the school holiday period shall be at the conclusion of the last day of each school term and conclude at the commencement of the first day of the following school term at which X is required to attend school.
11.2The school holiday time halfway point, for the purposes of changeover, shall be deemed to be at 10.00 am on the middle day where there is an even number of days, and, where there is an odd number of days (and uneven number of nights), the changeover shall be at 5.00 pm on the middle day.
12.Notwithstanding these orders, X shall spend time with the mother from 9.00 am to 5.00 pm on Mother’s Day and time with the father from 9.00 am to 5.00 pm on Father’s Day, or as otherwise agreed in writing.
13.There be no further orders for any ongoing counselling for the children.
14.The Independent Children’s Lawyer shall have leave to provide a copy of these orders to each of the children’s school.
THE COURT NOTES THAT:
15.X shall remain in the care of the parent who has her in their care pursuant to these orders for Easter, Christmas and her birthday, unless otherwise agreed in writing.
0
3
2