Stubbs & Stubbs (No 2)

[2012] FamCA 981

FAMILY COURT OF AUSTRALIA

STUBBS & STUBBS (NO 2) [2012] FamCA 981

FAMILY LAW – CHILDREN – application by the mother seeking discharge of final parenting orders upon the basis that there has been a change in circumstances – where the father seeks that the mother’s application be dismissed relying upon the rule in Rice and Asplund (1979) FLC 90-725 – where the matter was recently finalised after a lengthy and complex trial – where new issues had arisen however the Court was of the view that they were of the same nature to those which were previously dealt with at trial – where it was in the best interests of the children for litigation to come to an end – application dismissed.

Family Law Act 1975 (Cth) s 60CA

CDJ v VAJ (1998) 197 CLR 172
DL & W [2012] FamCAFC 5
Hayman and Hayman (1976) FLC 90-140
M v M (1988) 166 CLR 69
Marsden v Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
R v R (Children’s wishes) (2002) FLC 93-108
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363

APPLICANT: Ms Stubbs

RESPONDENT: Mr Stubbs

INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

FILE NUMBER: ADC 1974 of 2009

DATE DELIVERED: 26 November 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 21 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cocks

SOLICITOR FOR THE APPLICANT: Georgina Parker Lawyers

COUNSEL FOR THE RESPONDENT: Ms Lindsay

SOLICITOR FOR THE RESPONDENT: Helen McCance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

Orders

1. The mother’s Initiating Application filed on 15 December 2011 is dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stubbs & Stubbs (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1974 of 2009

Ms Stubbs

Applicant

And

Mr Stubbs

Respondent

REASONS FOR JUDGMENT

Introduction

1. By the Initiating Application of the mother filed on 15 December 2011 (Doc 227) she seeks that various parenting orders made by Justice O’Reilly on 9 May 2011 be discharged upon the basis that there has been a significant change in circumstances since those orders were made and that the orders no longer reflect the children’s best interests. 

2. The father opposes the mother’s application relying upon the Rice and Asplund rule arguing that there has not been a change in circumstances which justifies the rehearing of the parenting issues.  It was his position that although the facts and allegations now raised by the mother were indeed new, they were of the same nature as those already considered by Her Honour at trial.  Counsel for the father argued that the various matters raised by the mother have all been longstanding issues for the children. 

The Hearing

1. At the hearing Ms Cocks of counsel appeared for the mother, Ms Lindsay of counsel appeared for the father and Mr Stephen appeared as the Independent Children’s Lawyer. 

2. With the consent of all the parties the hearing proceeded on the basis that the Rice and Asplund issue would be determined on the papers currently before the Court. 

3. On 21 June 2012 I heard the submissions of counsel.  Judgment on the matter was reserved.   

Relevant Background

1. The applicant mother is Ms Stubbs born in 1971 (41 years of age). 

2. The respondent father is Mr Stubbs born in 1967 (45 years of age). 

3. The parties met in late 2000 and were married in mid 2003. 

4. Prior to the birth of the parties’ children the parties’ relationship was a difficult and an unhappy one plagued with issues of violence, drug abuse, sexual and physical abuse and suicide attempts by both parties.  There were also serious concerns about the mental health of the parties. 

5. In September 2002 the parties’ first child D was born.  The parties’ second child N (otherwise known as “N”) was born in April 2007.  They are currently aged 10 and 5 years respectively. 

6. The mother says that the children were also subject to physical abuse by the father.  She further alleges that the father’s violent behaviour was exacerbated by his drug use. 

7. On 23 April 2009, following an incident on 13 April 2009 (an incident where the mother self harmed) the children were placed in the care of the maternal grandparents by Families SA.  This was with the consent of the parties.

8. The parties’ separated on a final basis soon after on 1 May 2009.  They were later divorced on 30 June 2012. 

9. Proceedings were commenced by way of Initiating Application of the mother filed 22 May 2009 in which she sought final orders that the children live with her and that she have sole parental responsibility for them. 

10. On 2 July 2009 the father filed an Amended Response to Initiating Application seeking property settlement orders in addition to parenting orders. 

11. On 3 August 2009 Federal Magistrate Cole made interim orders for the children to be cared for by the parties in a shared care week about arrangement. 

12. During the interim stages of the proceedings and with the exception of three short periods, the children continued to be cared for by the parties in a week about shared care arrangement. 

13. The matter was designated Magellan pursuant to orders made on 16 September 2009. 

14. The complexity of the matter resulted in orders being made on 7 July 2010 requesting the intervention of Families SA in the proceedings pursuant to section 91B.  The invitation which was subsequently declined. 

15. The trial of the matter commenced on 15 March 2011 and spanned 12 days concluding on 15 April 2011 when judgment was reserved.  For the last five days of the trial, the Court sat beyond conventional sitting hours. 

16. During the trial, the Court received evidence from 22 witnesses.  Eighty-six exhibits were tendered. 

17. On 24 March 2011 the property settlement proceedings were finalised by Consent Orders.

18. On 9 May 2011 Justice O’Reilly delivered her judgment wherein Her Honour made various findings that the father had been physically and sexually abusive towards the mother.  Her Honour also made findings that the father had also been violent towards D. 

19. In the course of her reasons Her Honour also had particular regard to the serious psychological impact that the ongoing turmoil between the parties had on the children and particularly to the child, D.  Of particular significance were concerns that D was a child suicide risk. 

20. Despite the various findings against the father Her Honour ultimately came to the view that the benefit of having a meaningful relationship with the father would outweigh any detriment to the children arising out of spending time with the father. 

21. Final orders were made for the children to live with the mother and spend time with the father on alternate weekends, alternate Wednesdays in the intervening week, half the school holiday periods and other special occasions.   

22. Orders were also made for the mother to have sole parental responsibility for the children in relation to their education and health.  For all other matters the parties were to have equal shared parental responsibility. 

23. The finalisation of longstanding proceedings was short lived.  The father filed a Contravention Application on 13 December 2011 in which it was alleged that on two occasions, the mother failed to provide the children to the father pursuant to orders of the Court. 

24. The mother filed an Initiating Application on 15 December 2011 (Doc 227) seeking the discharge of a number of the final orders made by Justice O’Reilly on 9 May 2011. 

25. In her supporting Affidavit filed in support on the same day, the mother sets out the various difficulties she has experienced in the children’s behaviour which she attributes to the time the children have spent with the father pursuant to Court orders. 

26. The father filed his Response on 31 January 2012 (Doc 234) seeking that the mother’s Application be dismissed. 

27. On 27 January 2012 an assessment of D by Dr E of the Child Assessment Unit at the Women’s and Children’s Hospital concluded with a positive diagnosis of Asperger’s Syndrome. 

28. When the matter came before His Honour Justice Burr on 2 February 2012 (as he then was) orders were made by consent for the children’s time with the father be suspended on an interim basis.  These orders were continued by consent on 20 April 2012 and thereafter on 25 June 2012.

The Applications

1. The mother filed an Initiating Application on 15 December 2011 (Doc 227) in which she sought the following final orders:-

   1.That paragraphs 8, 10-20 inclusive, and paragraph 31 of the Orders made by The Honourable Justice O’Reilly on the 9^th May 2011 be discharged. 

   2.That the father pay the mother’s costs of and incidental to this application. 

   3.Such further or other Orders as this Honourable Court deems fit.

1. By way of response the father filed a Response to Initiating Application on 31 January 2012 (Doc 234) seeking that the mother’s application be dismissed relying upon the rule set out in the decision of Rice and Asplund (1979) FLC 97-205. It was the father’s position that there had not been a sufficient change in circumstances to warrant the rehearing of the parenting issues. He sought the following orders:-

   1.That the mother’s application filed 15 December 2011 be dismissed. 

   2.That the father spend time with the children [D] born … September 2002 and [N] born … April 2007 at such times and under such conditions as deemed appropriate by this Honourable Court in the circumstances. 

   3.Such further or other Orders as this Honourable Court may deem appropriate in the circumstances.

1. The parties relied upon various affidavits which had been filed in support of their respective positions. 

Preliminary matters

1. At the beginning of the hearing I heard submissions from the parties in relation to use of transcript from the trial by counsel for the father.  This was opposed by counsel for the mother who argued that she had only received the father’s case outline the day prior and had not had a chance to read the transcript.  Further to this, she advised the Court that she was not in possession of the transcript and it was her understanding that the transcript was not available on the Court file.  Counsel also submitted that the trial of the matter was lengthy, the task of reading the entire transcript was onerous and placed an unnecessary burden upon her. 

2. Moreover, counsel argued that excerpts of transcript sought to be relied upon by the father may not have necessarily have been adopted by Her Honour in coming to her decision. 

3. In light of these factors and the potential denial of procedural fairness to the mother, counsel sought that transcript not be relied upon by the father in the event that the hearing was to proceed. 

4. I raised further concerns with the parties relating to the use of transcript in that the reference to portions of transcript may result in comments, discussion and submissions being considered out of context. 

5. In response, counsel for the father argued that reference to transcript in considering a Rice and Asplund argument was an accepted practice and referred to the decision of Hayman and Hayman (1976) FLC 90-140 in support of her position. Nevertheless, in acknowledging counsel for the mother’s submissions in relation to procedural fairness, counsel indicated that she would no longer seek to rely on transcript to allow argument to proceed.

6. I also raised the issue (identified in the decision of Miller & Harrington (2008) FLC 93-383) that if the Rice and Asplund issue was to proceed to be determined on the papers, the Court may need to accept the wife’s case at its highest.  All counsel accepted that the decision would be made accepting the mother’s case at its highest.

The Law

1. The decision of Rice and Asplund (supra) remains authoritative when determining whether it is appropriate to reconsider previous parenting orders.  The decision supports the principle of finality of litigation and serves to protect children from ongoing litigation.  In this decision, Evatt CJ (with whom Pawley SJ and Fogarty J agreed) stated (at 78,905 -78,906):-

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for the material on which that order was based.  It should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for change is an ever present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p.  75,680).  These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.  It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served.  These principles apply whether the original order is made by consent or after a contested hearing.  The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case. 

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

2. In relation to the application of the Rice and Asplund rule, the Full Court in the decision of Marsden v Winch (2009) 42 Fam LR 1 described a two step process:-

   58.      … [T]here 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.

3. In SPS and PLS (2008) FLC 93-363 Warnick J stressed that the best interests of the child will remain the paramount consideration when applying the Rice and Asplund principle.  He referred to various authorities. 

   78.Authority supports this view.  Speaking of the rule in Rice and Asplund, Nygh J with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling and Mole (1987) FLC 91-856 at 76,467:

   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 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…

   79.Again, in In the Marriage of F and N (supra), Nygh J said at 76,136:

   Indeed it is fair to say, as I have said on several occasions, that basically in custodial matters there is only one rule, and that is that the welfare of the child is the paramount consideration.  Everything else is but a reflection of that rule. 

   80.And in McEnearney (supra) Nygh J further said at 75,499:

   One comes back to the fundamental principle that the interests of the child are paramount and that consideration alone should lead a court to discourage a parent from coming back before the court to (sic) soon after the court has had an opportunity to consider fully the situation of the child and there is really no startling new circumstances that can be brought before the court. 

   81.Thus, in 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 circumstances 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.

4. His Honour went on further to say:-

   84.The essential question however is as to the sufficiency of new events to provoke a new enquiry.  The answer to this question involved putting the events in the context of the broader circumstances pertaining to the arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.

1. In the decision in Marsden v Winch (supra) the Full Court adopted the comments of Warnick J in SPS and PLS (supra) and went on to say:-

   48.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction. 

   49.However, even that simple formulation must be subservient to the nature of the application itself.  This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests.  It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children.  In addition, recent research demonstrates that conflict between parties is itself harmful to children (citations omitted). 

   50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made.  Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case.  How is that decision to be made? The court must look at:

   (1)     The past circumstances, including the reasons for the decision and the evidence upon which it was based. 

   (2)     Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   (3)     If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.

1. In the most recent decision of the DL & W [2012] FamCAFC 5 the Full Court considered the Rice and Asplund rule and reaffirmed the position set out in the numerous decisions before it.  The Full Court also turned its mind to consider the impact of ongoing litigation on a child and said:-

   66.The likely adverse impact of litigation on children has also been recognised in the High Court. In CDJ v VAJ (1998) 197 CLR 172 at 204 [118] McHugh, Gummow and Callinan JJ (albeit in a different context) said:

   …So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind.  The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings. 

   67.The legislation itself now expressly directs judicial officers to have regard to the potential impact of proceedings on the welfare of children. As the Full Court pointed out in Miller & Harrington (2008) FLC 93-383, the provisions of 69ZN of the Act, which prescribes “principles for conducting child-related proceedings”, apply to a hearing in which Rice and Asplund is invoked.  Subsection 69ZN(3) provides (our emphasis):

   The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

Discussion

1. Prior to commencing her submissions, counsel for the mother sought clarification of the father’s position in the proceedings.  She argued that whilst the father sought that the mother’s application be dismissed on the basis that there had not been any material change in the circumstances, it was his own position that the existing parenting orders in place should be substantially altered (however the orders he sought were not particularised in any of his documents). 

2. In response, counsel for the father advised the Court that the father now sought that his time with the children be restored with such time to be gradually reintroduced.  He also sought orders for the assistance of a psychologist for D during this time. 

3. In applying the Rice and Asplund rule, the Court is required to follow the two step process set out by the Full Court in the decision of Marsden v Winch (supra). However, the dominant consideration for the Court in all parenting matters is the best interests of the children as set out in section 60CA of the Family Law Act 1975 (Cth) (‘the Act’). The application of the best interests principle in determining a Rice and Asplund argument has been recognised in decisions such as SPS and PLS (supra) and Marsden v Winch (supra). 

4. The first step requires the Court to consider whether a change in circumstances has been established.  The position advanced on behalf of the mother was that since the finalisation of the proceedings in May 2011 there had been significant changes in the circumstances of the children which fell under six distinct categories.  The Court was directed to various paragraphs of the mother’s Affidavit filed on 15 December 2011 (Doc 228) in support. 

The father’s lack of time with the children

1. Counsel for the mother submitted that the father’s relationship with the children has been interrupted and disjointed for a period in excess of 12 months due to the father’s actions or lack thereof in making arrangements for such time to occur.  The mother terminated the father’s time with the children in November 2011 for various reasons which included alleged inappropriate conduct by the father whilst the children were in his care.  It is also alleged that the children’s behaviour has regressed since having to spend time with the father. 

2. Since November 2011, the father’s time with the children has been suspended by two sets of Court orders made by consent on 2 February 2012 and 20 April 2012.  As a result of such orders the children have not spent any time with the father for nearly five months.  Counsel argued that the father’s consent to the suspension of his time with the children could be viewed as an acknowledgement by the father of D’s difficult behaviours and that he agreed that it was in the best interests of the children for his time to be suspended.  It was counsel’s position that the father’s concession also served to validate the wife’s concerns for the children. 

3. Counsel concluded her submissions by inviting the Court to find that through the father’s own actions, he had demonstrated an acceptance that the children were experiencing serious difficulties and that the current parenting orders no longer represented the best interests of the children.  It was on this basis that the father’s response should be dismissed and the suspension of the children’s time with the father continued pending further investigation.   

4. In reply Ms Lindsay for the father vehemently disputed the submission that the father had renounced his rights to see the children in acknowledgement of the difficulties they were experiencing.  On the contrary, it was argued that in a difficult situation and in keeping the children’s best interests at the forefront of his considerations, the father consented to a suspension of his time.  To use that as a reason for a change in the circumstances was said to be “opportunistic in the extreme”. 

5. The father’s Affidavit in reply (Doc 235) sets out at length the ongoing difficulty he has experienced in spending time with the children pursuant to the final orders of Justice O’Reilly.  At paragraph 11 he says:-

   There was a period between July 2011 and November when I did not spend time with the children in accordance with the Order because the mother would no longer agree to a slight variation of the Order in relation to a handover place and time at the commencement of my time with the children to allow me to travel to my place of employment to collect the children.

6. The father continues on to say (at paragraph 19):

   I believe that the mother chose to enforce strictly the terms of the Order in regard to pick up of the children because she knew that I would be unable to pick the children up from school and retain my employment and as such would not in a position to spend time with the children.

1. Moreover it is alleged that the mother purposely scheduled activities for the children during scheduled time with the father.  At paragraph 24 the father states that:-

   The mother often made arrangements for the children to attend appointments or social activities on the weekends they were to spend time with me.  I did not want the children to be disadvantaged by not attending the events the mother planned for them…

1. The difficulties about which the father complains are testament to the difficult relationship between the parties.  In her submissions counsel for the father referred to a long trail of emails between the parties from July to November 2011 containing discussions about arrangements for the children.  It was noted that at no stage in the email communications did the mother raise concerns of a serious nature which would justify the cessation of the father’s time with the children in November 2011. 

2. The parties’ difficulties in implementing the orders of Justice O’Reilly also affected telephone communications between the father and the children.  On the mother’s case the father failed to telephone on his scheduled occasions.  The father says that his phone calls were often left unanswered by the mother. 

The father’s conduct while the children have been in his care

1. The second issue brought to the Court’s attention were matters allegedly raised by D in relation to the father’s conduct.  Counsel referred to the mother’s affidavit in which at paragraph 14 she says that D has reported that “the father has been abusive and threatening to him and [N]”.  The mother also says “that the behaviour of the father has frightened the children”.  It is also alleged that the father has had inappropriate discussions with D about the trial and has continued to denigrate the mother to the children.  This is in light of specific orders made by O’Reilly restraining the father from engaging in such behaviours. 

2. The Court was directed to paragraph 61 of the father’s Affidavit (Doc 235) in which the father responds to the allegations of the mother and says “…I strongly deny that I have been abusive or threatening to [D] or [N] during the time they have spent with me”.  The father also denies other allegations made in relation to his conduct.

The impact on the children of having to spend time with the father

1. Counsel for the mother raised concerns in relation to the impact of the father’s alleged conduct on the children’s emotional and psychological wellbeing.  It was submitted that the children have become distressed and anxious and that their emotional decline coincided with, and was a result of, the time the children have spent with the father.  Counsel highlighted the regression in the children’s behaviour, particularly N, in that she had become excessively clingy to the mother.  In D’s case it was argued that he had recommenced bedwetting and was suffering from severe diarrhoea and nightmares.  The mother reports that the children have not suffered from such difficulties since their time with the father has ceased.

2. Further to this, counsel noted that D’s behavioural difficulties are apparent in all aspects of his care but particularly in the difficulties he has experienced in his schooling.  Counsel referred me to the mother’s affidavit (Doc 228) in which she sets out the details surrounding D’s suspension from Suburb X School on two separate occasions.  The first occasion occurred on 9 November 2011 and related to behaviour which the school considered threatening and disruptive.  Not long after on 18 November 2011, the child was suspended again for physically assaulting three students at the school.  The mother lays the blame for D’s misdemeanours upon the father’s influence.  D was moved to Suburb Y School by the mother shortly thereafter. 

3. On the contrary, it was the father’s position that D’s difficulties in his schooling have been longstanding and cannot be attributed to the time that he has spent with the father.  The father notes that “[D] has attended three primary schools in four years”.  (Paragraph 44 of the father’s affidavit (Doc 235)). 

4. Counsel for the father argued that the improvements in the children could be attributed to the absence of the high levels of conflict and animosity between the parties.  It was a possibility recognised by His Honour Justice Burr (as he then was) in reasons dated 11 August 2009 wherein His Honour stated that:-

   …The impact upon [D] is particularly alarming and there is significant information before the Court as to the problems he is having at school and generally with his function.  Each blames the other for that.  Neither seems to perceive that that the incredible toxicity of their relationship is almost certainly playing a significant part in that.

5. This may continue to be a possibility. 

D’s refusal to spend time with the father

1. D is now 10 years old.  Counsel for the mother urged the Court to take into consideration his wish not to spend any further time with the father.  In her affidavit (Doc 228) the mother reports that:-

   Since returning to my care on the 27^th D had pleaded with me not to spend time with the father.  D has experienced nightmares including recalling a nightmare where he is chased and has to protect N.  As referred to previously, D has experienced bed-wetting and also soiling during the night when he is asleep which has caused him extreme distress and embarrassment. (at paragraph 80)

2. The authorities and in particular the decision of R v R (Children’s wishes) (2002) FLC 93-108 provide that the Court is required to take into account a child’s views in appropriate circumstances but it is not bound by them. D’s wishes need to be considered in light of the history of ongoing conflict between the parties. After hearing evidence from various experts, Justice O’Reilly came to the view that D was a “highly conflicted child” who felt torn between his parents’ battle for him.  On this basis Her Honour gave weight to D’s views but not necessarily decisive weight. 

Issues of further violence between the parties

1. The issue of violence between the parties was a pertinent consideration during the trial.  Counsel for the mother argued that there had been further violent incidents between the parties since the conclusion of these proceedings.  Counsel referred to paragraph 39 of the mother’s affidavit (Doc 228) in which she deposes to an argument between the parties during handover of the children during which “the father grabbed” her “and “pushed me back in front of the children”.  She further states that “[N] saw what happened and started screaming”. 

2. In relation to the allegation of ongoing violence between the parties, counsel directed the Court to paragraphs 73 and 74 of the husband’s Affidavit (235) in which he sets out the details relating to this incident.  Counsel noted that on this occasion, the mother had brought business documents to the handover for the father to sign, an action which was claimed to be inappropriate and provocative.  It was the father’s position that the mother’s actions were opportunistic and created a situation of conflict upon which she now sought to rely in support of her application.  At paragraph 73 of his Affidavit the father says:-

   The mother was in her vehicle at the time and started the car and took off abruptly.  If I had not jumped out of the way I would have been hit by the car.  N saw what had occurred and started screaming.

D being diagnosed with Asperger’s Syndrome

1. The final matter raised on behalf of the mother related to D’s recent diagnosis with Asperger’s Syndrome.  The position advanced by counsel for the mother was that the requirements for a child with Asperger’s Syndrome are starkly different to what was previously understood to be the requirements for D at the time of the trial. 

2. It is noteworthy that in the report of the diagnosing medical practitioner it was stated that “while some of [D’s] behaviours can be explained by both attachment issues and autism spectrum disorder, some behaviours were felt to be more related to a diagnosis of Asperger’s Syndrome”. 

3. The father’s position was that D has for a long time been seeking the assistance of medical personnel in respect of a wide array of behaviours which were not understood.  The father’s position was that D was still suffering from the same behavioural difficulties as those he experienced previously and more importantly, already considered at trial.  It was his position that they had now simply been characterised differently. 

4. In her submissions counsel canvassed the background leading up to the positive diagnosis of Asperger’s Syndrome in particular noting that Dr A, D’s longstanding treating psychiatrist, repeatedly discounted the possibility of such a diagnosis.  The mother’s belief that D was suffering from Autism or a similar condition was a view also not supported by D’s school teacher, Witness 5 in the evidence she gave during the trial.  Counsel submitted that following Dr A’s retirement the mother took it upon herself to seek referrals from her own General Practitioner for D.  This was later supported by the comments of Clinical Psychologist, Mr BC who said in a letter dated 12 December 2011:

   D was referred by his mother, [Ms Stubbs] on 16 November 2011 for assessment and intervention for challenging and aggressive behaviours at home and school, difficulties with sleep and emotional regulation, bedwetting and general learning difficulties. 

1. Counsel noted that these steps were taken at a time when serious complaints were being made about the father’s conduct however the mother continued the father’s time with the children. 

Summary

1. In taking all of these factors into account, counsel for the mother argued that a significant change in circumstances had been established.  Further, it was the mother’s position that the gravity of the issues raised by the mother lends overwhelming support for the rehearing of the parenting issues. 

2. Counsel for the Independent Children’s Lawyer’s submissions were centred upon his position that despite the allegations made by the mother being new, they were of the same nature as those already raised by the mother during the trial and that the allegations currently before the Court were of a significantly less serious nature than those previously raised by the mother and subsequently accepted by Her Honour during the trial.  (Those allegations included inappropriate behaviour by the father ranging from yelling at the children, assaulting the mother to the extreme allegation of raping the mother). 

3. Counsel then directed the Court to the judgment of Justice O’Reilly in which Her Honour recognised the very real possibility of ongoing violence by the father once the proceedings were finalised. He emphasised that, notwithstanding her views, in balancing the benefit to the children of having a meaningful relationship their father and the myriad of other considerations under the Act, Her Honour still came to the view that it would be in the best interests of the children to spend unsupervised time with the father. The Court was directed to paragraph 169 of the judgment of Justice O’Reilly which reads:-

   The prospect of further physical violence by the father to [D], and potentially also to [N], cannot be eliminated.  Indeed, it may even be likely to occur, once the confines of an imminent and then actual trial process are over.

4. It was upon this basis therefore, that counsel supported the position of the father. 

Conclusion

1. The trial of the matter was lengthy and the volume of evidence received by the Court was described by Justice O’Reilly as “extraordinary”.  Her Honour heard significant evidence, made findings and concluded that despite the existence of many issues of serious concern, it was ultimately in the best interests of the children to spend regular unsupervised time with the father.

2. I accept that the children were and are suffering from significant difficulties.  Many of the facts now raised by the mother are new but I am not satisfied that these issues are significantly different to those which were ventilated throughout the course of the previous proceedings and at the trial. 

3. Even if the Court is satisfied that there are new circumstances, the second step of the two-step process as prescribed in Marsden v Winch (supra) requires that the Court be satisfied that a further hearing of the matter is “justified”.  Having regard to the extensive history of the matter there is no doubt that the parties have a very difficult relationship which has significant repercussions on their children, but I am not satisfied that the circumstances justify the Court embarking upon another hearing of the parenting issues. 

4. In these particular circumstances I also agree with the comments of the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172 in that it is in the best interests of the children for the litigation to come to an end.

5. For the above reasons therefore, the Initiating Application of the mother is dismissed.

6. I will consider submissions of the parties concerning the reinstatement of the orders for the father to spend time with the children.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 26 November 2012.

Associate:

Date:  26 November 2012