STONE & STONE
[2018] FamCA 876
•31 October 2018
FAMILY COURT OF AUSTRALIA
| STONE & STONE | [2018] FamCA 876 |
| FAMILY LAW – CHILDREN – consideration of the principles of Rice & Asplund – where no change in circumstances has been demonstrated – application dismissed. |
| Family Law Act 1975 (Cth) |
| Stone & Stone [2015] FamCA 14 Stone & Stone & Anor [2016] FamCAFC 141 Rice & Asplund (1979) FLC 90-725 Walsh & Sabey[2017] FamCAFC 119 SPS & PLS (2008) FLC 93-363 McEnearney & McEnearney (1980) FLC 90-866 Marsden & Winch (2009) 42 Fam LR 1 Miller & Harrington (2008) FLC 93-383 |
| APPLICANT: | Ms Stone |
| RESPONDENT: | Mr Stone |
| FILE NUMBER: | BRC | 1645 | of | 2011 |
| DATE DELIVERED: | 31 October 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 28 September 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr M Anglin Salvos Legal Humanitarian |
| THE RESPONDENT APPEARED IN PERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms K Carmody |
| INDEPENDENT CHILDREN’S LAWYER: | Ms S Bolton CNG Law |
THE COURT ORDERS BY CONSENT:
Overseas travel
That the children, B born … 2005 and C born … 2006 (“the children”) are to be removed from the Airport Watch List for the periods of their intended overseas travel with such travel dates to be notified to the Australian Federal Police or such other authority by the father.
That the father is at liberty to travel overseas with the children.
That when the children are overseas with the father then the father shall provide the mother with details of the country they are travelling to, their travel dates and an email address while they are overseas.
That within seven (7) days of the date of these Orders the mother shall sign a passport application form for each of the children, with the father to provide the forms to the mother’s solicitor, with the form to be signed by the mother in her solicitor’s office and the forms to be collected by the father within seven (7) days of the forms being signed by the mother.
That in the event the mother refuses to or is unable to sign the passport application forms for ether of the children then the father is at liberty to apply for a passport without the need for the mother’s signature and the passport shall issue pursuant to Order 3 of the Orders dated 22 January 2015 providing for the father to have sole parental responsibility for the children.
THE COURT ORDERS:
That the mother’s Application in a Case filed 14 August 2018 be dismissed.
That despite Order 10 of the Orders dated 22 January 2015 which provides for the children’s names to be placed on the Airport Watch List, the father be permitted to take the children out of the jurisdiction of the Commonwealth of Australia to the United Kingdom during the 2018/2019 Queensland gazetted school holidays.
That pursuant to s.121 of the Family Law Act 1975, the mother be granted leave to provide to any Psychiatrist engaged by her, a copy of:
(a) the psychiatric report prepared by Dr E dated 11 April 2013;
(b) the Reasons for Judgment delivered by Forrest J on 22 January 2015;
(c)the family report prepared by Ms D dated 25 September 2018; and
(d) the Reasons for Judgment delivered by Baumann J on 31 October 2018.
That the mother’s Initiating Application filed 14 June 2016 be dismissed.
That the mother be restrained from commencing fresh parenting proceedings without leave of the Court having first been obtained.
That where possible, any application for leave to commence fresh parenting proceedings be listed before the Honourable Justice Baumann, supported by an independent psychiatric report that deals with the concerns raised in the report of Dr E dated 11 April 2013.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A. That the father would like to travel with the children from 21 December 2018 to 20 January 2019 or such other similar dates that the father can obtain flights for himself and the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stone & Stone has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1645 of 2011
| Ms Stone |
Applicant
And
| Mr Stone |
Respondent
REASONS FOR JUDGMENT
Introduction
On 22 January 2015, Forrest J delivered Reasons (see Stone & Stone [2015] FamCA 14) after a seven day hearing, for why the mother “shall spend no time” with her children, B (born in 2015) and C (born in 2006). The Reasons explain that his Honour was well aware that the boys (aged eight years and nearly seven years at the hearing before Forrest J), wanted to see their mother, however in a seminal paragraph of his lengthy and considered analysis, he said:
124. I accept the submission made by counsel for the ICL that I could not be satisfied that the mother demonstrates the necessary insight or capacity for appropriate change. I am not persuaded at this point in time that she does. As a consequence, I have determined not to order any supervised time. I consider that without that insight and demonstrated capacity for change, even with supervision, time with the mother would present these boys with an unacceptable risk of emotional and psychological harm. I also find that there is an unacceptable risk of the mother and/or the maternal grandparents assaulting, abusing, threatening or harassing the father if they are able to come into contact with him through supervised contact visits. I also find that there is an unacceptable risk of one or more of the three of them hiding and following the father from a place where supervised contact might take place and then abducting the children and taking them into hiding again. I am satisfied that the consequences of that would be far more harmful to the children than not spending any time with the mother at this point in time in their lives. I will make no order for supervised time.”
The mother, as she was perfectly entitled to do, commenced an Appeal, which was heard on 8 June 2016 and dismissed on 4 August 2016 (see Stone & Stone & Anor [2016] FamCAFC 141). In the Reasons published by the Full Court (May, Thackray and Ainslie-Wallace JJ), the Court carefully considered the numerous grounds of appeal articulated by the mother (who conducted her Appeal in person), including the asserted failure of the trial Judge “to make orders reflecting the recommendations of the report writer that the mother have contact with the children”. Such ground was not established.
It is apparent from the Reasons of the trial Judge and the Full Court that the evidence of independent Psychiatrist Dr E was important in the determination of these difficult issues, and the expert’s opinion that the mother has “significant personality vulnerability” and that the mother has “high absorptive capacity which allows her to re-create reality such that she sees things the way she wants to”, was accepted.
Before the Appeal decision was made, the mother filed an Application on 14 June 2016, seeking an interim order that the children spend supervised time with the mother, with a final order sought for the children to spend unsupervised time each alternate weekend and half of the school holidays. The Affidavit filed in support of the Application deposes to receiving a diagnosis in June 2016 of “inoperable brain stem tumour” and states, at paragraph 12 that:
12. I have come to the realization that it is acutely important for me to spend time with my children before I die. As a result, I would like the Father to make some arrangements with me for me to spend some time with my children.
The father, who is unrepresented, had indicated in his Response, that the mother’s Application should be dismissed.
It seems that although an Independent Children’s Lawyer (“ICL”) was appointed and there were a number of appearances before Registrars adopting the standard case management approach, the matter was allocated to the trial pool in May 2017, a Registrar having noted on 2 March 2017 that the ICL “foreshadowed to the parties and the Court that a Rice & Asplund argument may be raised at the final hearing”.
The matter first came before a Judge on 22 June 2018, when the listing was for the allocation of trial dates. I expressed my concern in allocating trial dates, and instead listed the matter for a hearing, on the oral application of the ICL, for a determination as to whether the principles in Rice & Asplund (1979) FLC 90-725 should be applied. I heard that application on 28 September 2018. The mother was assisted, as I was, by the submissions of Mr Anglin (acting on a pro bono basis) for the mother. The father represented himself. Ms Carmody of Counsel, who represented the ICL at the trial and in the Appeal, also appeared before me. Her understanding of the history of this quite difficult and complex matter was most helpful.
Principles
Of great assistance to trial Judges was the recent summary of the principles in these cases, articulated recently by Justice Murphy in Walsh & Sabey[2017] FamCAFC 119, which I respectfully set out now:
8. It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.
9. In the important decision of SPS & PLS, (“SPS”) Warnick J held that the discussion of the rule in the various authorities had “not always used consistent terminology”. His Honour noted, in particular, that the term “threshold” has had different connotations. His Honour went on to say that he would in that judgment “refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a ‘preliminary matter’”. It is in that sense that the expression is used in these reasons of mine. As it seems abundantly clear to me, the treatment of the rule in that manner is what was contemplated and undertaken by the parties and by her Honour in the proceedings below.
10. In SPS, Warnick J went on to hold that:
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
…
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
11. His Honour went on to say this:
… [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. 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.
(Emphasis added)
12. Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.
13. Thus, for example, Nygh J said in McEnearney & McEnearney:
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
14. To similar effect, Warnick J said in SPS:
Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
(Emphasis added)
15. The “evil” referred to is the undoubted harm to children of “a perennial football match between parents” and the canvassing “again and again” of issues relating to their best interests. That situation can in my view be distinguished from circumstances in which the parties express their agreement about parenting arrangements in a consent order but are now no longer in agreement and where it is said that the now absence of agreement is due to circumstances that have changed since the making of the consent orders.
16. In Marsden & Winch the Full Court said:
[57]. In Miller… the court posed the question:
[105] Adapting the language used by Warnick J in SPS and PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
[58]. That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
(Citations omitted)”
All parties were aware of the principles to be applied.
Family report
Considering the children are now aged 14 years and nearly 12 years, I decided on 22 June 2018 that a limited family report by the original family report writer (Ms D) should be prepared and as a result of my order, Ms D interviewed the children on 30 August 2018 at their home, where they live with the father. The parents were not further interviewed for this limited report – specifically at my direction – however the ICL briefed the report writer with updated Affidavits by the parents.
A report dated 25 September 2018 was available at the hearing on 28 September 2018.
The report sets out details of the interview with B (paragraphs 60 to 90) where he expressed some mature views and some insight into his current situation, concluding that he would like to continue to live with the father but would like to spend time with the mother and maternal grandparents. C was separately interviewed (paragraphs 91 to 115) but expressed the same view about seeing the mother as did B.
The report writer spoke to the boys together to exchange information about their interviews and Ms D (at paragraph 116) identified as the main issue for the children is that “they both agreed that they would like to see their mother and would like to be able to travel to [the UK] to visit their paternal grandparents.”
The issue of travel overseas was raised by the father in his earlier Response but was not dealt with, and the impediment to travel arises from the terms of Order 10 made 22 January 2015, maintaining the children’s names on the Airport Watch List until April 2019. The parties have agreed on orders, not opposed now by the mother, that are likely to enable (subject to the father funding the trip) the children to travel to the United Kingdom in the Christmas school holidays. Those orders, by consent, are also set out at the commencement of these Reasons.
Ms D opined that it would not be in the children’s best interests to be reintroduced to the mother “in the absence of an updated independent psychiatric assessment”, and a cautious approach should be taken (paragraphs 140 and 141). Further, the expert said that if the Court is considering ordering the children spend time with the mother, an independent clinical psychologist (Dr Q) be engaged to undertake extensive family therapy and then provided Dr Q determines that the children should spend time with the mother, supervised time of two hours a month for a minimum of 12 months is recommended by Ms D.
The Court, at this stage, makes no comment about whether such an order for therapy would be appropriate.
Discussion
Mr Anglin on behalf of the mother, tendered at the hearing a more recent medical report from the mother’s medical Oncologist, dated 14 September 2018. The tender of the letter was not opposed by the other parties, and inter alia whilst confirming the mother had been diagnosed with “a rare brainstem glioma in 2015”, and although such conditions have quite an aggressive prognosis which is usually deemed on average to be around one year, “thankfully, her MRIs have been quite stable and unchanged but there is a great uncertainty about the behaviour of her condition.”
The mother has not spent time with the children now for over five years. I accept this is a constant stress upon the mother. I accept the children are settled and happy in their father’s care. In this context, Mr Anglin contends that:
a)the children are much older than when time ceased, and at their age now, their expressed wishes to spend time with the mother should be given some weight;
b)the mother is, he says, having counselling with a community based organisation (R Group) with the last appointment being some six to eight weeks ago;
c)the father was supportive at the trial before Forrest J, that the children should have some relationship with the mother. Mr Anglin gave credit to the father, that the views now expressed by the children does not raise any concerns about the father demonising or undermining the mother;
d)the mother now lives independently from her parents; and
e)the time is right to reintroduce the children to the mother.
The father succinctly explained, that in the absence of any evidence that the mother’s psychiatric or psychological challenges have changed or improved, or been dealt with, he does not wish to unsettle the children. He also noted that the mother has not consistently taken advantage of the right to send gifts and cards to the children.
The ICL submitted that the evidence does not demonstrate any material or significant change in the mother’s behaviour has occurred. Whilst it is clearly understood that the mother’s prognosis with cancer is likely to intensify the mother’s need to see her children, the best interests of the children are not served by reintroduction at this time.
Further Court resources should not be devoted to a hearing as, in my view, it is premature and not in the children’s best interests to do so. What the mother should do, the ICL contends, is try and obtain a properly founded psychiatric report by an independent Psychiatrist, like Dr E. If Dr E is willing to undertaken an assessment, his knowledge of the background would likely assist.
If a Psychiatrist other than Dr E is selected by the mother then that Psychiatrist must have a copy of:
a)Dr E’s earlier report;
b)the Reasons for Judgment of Forrest J;
c)the most recent family report of my D; and
d)these Reasons.
I accept this submission.
In my view, applying the appropriate principles as set out earlier in these Reasons, it is in the best interests of the children that:
a)the Application be dismissed;
b)the mother will require leave to commence fresh parenting proceedings in the future; and
c)if possible, any application for leave should be listed before me. I now have an understanding of this matter and any leave application can be quickly dealt with, without the need for an ICL.
I encourage the mother to send gifts and cards as permitted by Order 6.
The ICL will be discharged. As indicated on the last occasion, when I deliver these Reasons, I will perfect the order that enables the children to travel to the United Kingdom.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 31 October 2018.
Associate:
Date: 31 October 2018
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