TAGGART & TAGGART

[2019] FamCA 966

FAMILY COURT OF AUSTRALIA

TAGGART & TAGGART [2019] FamCA 966

FAMILY LAW – CHILDREN – Child related proceedings – Application of the Rice & Asplund principles – Limiting the issues that require investigation at trial pursuant to s69ZQ(1)(a) – Where the mother’s application for the Court to reverse the living arrangements of the child is dismissed – Where the father’s application for the Court to discharge the spend time with and communicate with order will be listed for hearing.

Family Law Act 1975 (Cth)

Bennett & Bennett (1991) FLC 92-191
Carriel & Lendrum (2015) FLC 93-640
Doherty & Doherty [2016] FamCAFC 182
Poisat & Poisat(2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Ms Taggart

RESPONDENT: Mr Taggart

INDEPENDENT CHILDREN’S LAWYER: Ms T. Geysen

FILE NUMBER: BRC 10337 of 2014

DATE DELIVERED: 13 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 6 December 2019

REPRESENTATION

FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Ms K. Oakley

SOLICITOR FOR THE RESPONDENT: Norman & Kingston

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr M. Taylor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: TLG Law

Order

1. The mother’s Application in a Case filed 28 August 2018 (and by order made 21 March 2019 treated as an Initiating Application for Final Orders) be dismissed.

2. The mother be at liberty to file and serve a Reply to the father’s Response filed 16 September 2019 within 30 days of this Order.

3. This matter be allocated to the docket of the Honourable Justice Carew.

4. The father’s Response and any Reply filed by the mother pursuant to paragraph (2) be listed for trial directions before the Honourable Justice Carew at 9.30am on 31 January 2020.

5. The independent children’s lawyer (“ICL”) file an affidavit within 45 days of this Order setting out all relevant information to the best of her knowledge relevant to the delay in the child spending supervised time at the C Town Contact Centre with the mother pursuant to paragraph (6) of the order made by the Federal Circuit Court on 24 October 2018 and, additionally, all information relevant to each party’s compliance or attempted compliance with paragraph (7) of the order made by the Federal Circuit Court on 24 October 2018. Notwithstanding any rule to the contrary, the ICL shall annex to her affidavit any documents referred to in her affidavit.

NOTATION

A.The mother failed to establish that there was some changed circumstance since the final parenting order dated 9 September 2016, or some factor not disclosed at the previous trial that would have been material to the outcome, sufficient to justify a reversal of the living arrangements for the child, B born … 2008.

B.The father established that there was some changed circumstance since the final parenting order dated 9 September 2016 sufficient to justify a possible discharge of the ‘spend time with’ and ‘communicate with’ provisions of the primary order for the mother and the child, B born … 2008.

C.At the directions hearing on 31 January 2020 the parties and the independent children’s lawyer should be in a position to make submissions about whether or not the Court should include as an issue for consideration at trial the prospect of a a vexatious proceedings order being made against the mother pursuant to s 102QB of the Family Law Act 1975 (Cth).

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 Taggart & Taggart 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 10337 of 2014

Ms Taggart

Applicant

And

Mr Taggart

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Ms Taggart and Mr Taggart are the parents of B aged 11. A final parenting order was made on 9 September 2016 (“the primary order”) after a three day trial in the Federal Circuit Court. The child has lived with the father since then and has not spent any time with the mother since October 2018. The mother’s appeal against the primary order was adjourned in 2017 pending the mother’s compliance with directions that she file a transcript of those proceedings. The mother has not done so.

2. On 24 October 2018 (“the 2018 order”), the ‘spend time with’ provisions of the primary order in favour of the mother were suspended for a number of reasons, including that the mother had twice held the child over and refused to return him to the father. The 2018 order made provision for the mother to spend supervised time with the child at the C Town Contact Centre and required each party to register with that Centre and comply with all of the Centre’s requirements within five days of the order. In a letter to the father dated 5 December 2018,[1] D Group (who operate the C Town Contact Centre) confirmed that the father registered with the Centre on 29 October 2018 but that, as at the date of the letter, the mother had not registered and the file was therefore closed.

   [1] See exhibit 1.

3. Despite the mother’s failure to progress her appeal against the primary order, she seeks to reverse the living arrangements for the child.  The father seeks to discharge the ‘spend time with’ and ‘communicate with’ order in favour of the mother.

4. When the matter came before me in a duty list[2] on 4 September 2019 (“the 2019 order”) I listed the matter for the hearing of a discrete issue, namely:

   3.The matter be listed for hearing at 10.00am on Friday, 6 December 2019 for the purpose of determining whether there is some changed circumstance since the final parenting order dated 9 September 2016 or some factor not disclosed at the previous trial that would have been material to the outcome, which will justify a reversal of the living arrangements for the child, B born … 2008 or a discharge of the order that the mother spend time with the child.

   [2] On a hearing of a Contravention Application filed by the mother which was dismissed by me.

5. The 2019 order required each party to file and serve one affidavit of evidence in chief of themselves and any witness they intended to rely upon, and to file a summary of argument. The mother did not file any material.

6. Notwithstanding the mother’s noncompliance with the 2019 order, she was granted leave to rely upon two previous affidavits filed by her, namely, affidavits filed 28 August 2018 and 24 October 2018.

7. For the reasons which follow, I am not satisfied that the mother has established a basis for a possible reversal of the living arrangements for the child. I am, however, satisfied that the father has established the basis for a possible discharge of the ‘spend time with’ and ‘communicate with’ order. The matter will proceed to a hearing in relation to that issue.  

8. Before turning to consider the evidence relied upon by each party at this discrete hearing I set out the legal principles to be applied.

The ‘rule’ in Rice & Asplund

1. The Full Court in Rice & Asplund[3] (per Evatt CJ) held:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (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.

   [3] (1979) FLC 90-725 at [7].

2. This is what is referred to as the ‘rule’ in Rice & Asplund. Whether or not the principles identified in Rice & Asplund are more properly called a ‘guiding principle’ rather than a ‘binding rule’, it is apparent that the principles have been universally applied for decades.[4]

   [4] Poisat & Poisat(2014) FLC 93-597 at [8].

3. The existence of a ‘final’ parenting order does not prevent the Court discharging, varying, suspending, or reviving some or all of a parenting order in an appropriate case.[5]

   [5] Ibid at [37], [38] and s 65D(2) of the Family Law Act 1975 (Cth) therein referred.

4. Whether the ‘rule’ in Rice&Asplund is applied at a preliminary stage or after a full hearing, the best interests of the child remains paramount,[6] although “the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case”.[7] While the Court is not relieved of its obligation to consider the legislative provisions set out in Part VII of the Act, so far as relevant,[8] “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”.[9]

   [6] Ibid at [42].

   [7] Ibid.

   [8] Ibid at [32] and [34].

   [9]Carriel & Lendrum (2015) FLC 93-640 at [49] – [56].

5. The stage of the proceedings at which the rule is applied is a matter within the discretion of the presiding judicial officer,[10] although its significance is likely to be greater when applied at a preliminary stage.[11]

   [10] Bennett & Bennett (1991) FLC 92-191 at [63].

   [11] SPS & PLS (2008) FLC 93-363 at [48].

6. The significance of the variation sought will have an impact on the application of the rule. As Warnick J held in SPS & PLS:[12]

   The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   [12] Ibid.

7. That said, any variation of a parenting order pursuant to s 65D(2) of the Act will necessarily invoke the paramountcy of the best interests of the child and the consideration of such provisions in s 60CC as are relevant to the determination.[13]

   [13]Doherty & Doherty [2016] FamCAFC 182 per Kent J at [64] and [65].

8. Even when the rule is applied after a full hearing, two particular public policy matters remain of some significance: firstly, to guard against one judicial officer simply substituting her or his view for that of the original judge; and secondly, to have a rule that can be relied upon to discourage endless litigation even if applied in that particular case at the conclusion of the full hearing.[14]

   [14] SPS & PLS supra at [56] – [58].

9. Irrespective of the application of the Rice & Asplund principles the Court has power to limit the issues that require investigation at trial as set out in s 69ZQ(1)(a) which provides:

   (1)  In giving effect to the principles in section 69ZN, the court must:

   …

   (a)  decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily;

   …

The mother’s case

1. The mother confirmed that the bases for her seeking to reverse the primary order could be summarised as follows:

   a)The trial judge was very critical of her then living circumstances which were described as “toxic”[15] but since then she has moved into a new residence with her new partner; and

   b)The father ignored a serious health deficiency in the child, namely, iron deficiency.

   [15] While I cannot find reference to the word ‘toxic’ in the judgment it is clear that the mother and her parents were found to be unable to keep their negative views of the father from the child.

2. In support of her case, the mother relies upon a letter from a general practitioner, Dr E, dated 17 August 2018 in which the doctor opines that when he saw the child on 13 July 2018, his iron levels were “very dangerously low” and that the child was now in a “life threatening situation by continuing to be in the father’s care”. In his view, a period of six to 12 months recovery was required. Dr E refers to the father having attended upon his rooms on 23 May 2018 and his letter says, among other things:

   … [the father] was informed of the blood test results of low Iron, Calcium and Protein and I explained to him the severity of B’s condition and why I had recommended the removal of the child from his care. Mr. Taggart did not appear to have a serious interest in B’s condition or the treatment required, and I believe my recommendation was justified.

   The decline in B’s condition shows the father was prepared to allow his condition to worsen. If his iron levels were allowed to drop further, then this would become fatal as he was not prepared to make any changes required.

   The child is at serious risk that if he does not receive proper treatment for the iron levels he will require hospitalization and a full blood transfusion.

3. The mother relies upon a further letter from Dr E dated 18 October 2018 in which he says, among other things (as per original):

   I have enclosed blood test results showing his low iron level on 9/7/18, and subsequent test on 29/9/18 which showed a slight improvement, but not much.

   …

   I was shown photographs of bruises that B had.

   When I asked him how he got the bruises he said, and I quote “the bitch slapped me”. (referring to Mr Taggart’s partner )

4. Dr E does not disclose how he concluded that the child was referring to the father’s partner. There is nothing in the affidavits relied upon by the mother about any bruises on the child and the mother did not identify that as a basis for reversing the living arrangements.

5. The mother also attaches to her affidavit a letter dated 17 October 2018 from Ms F, a dietician. Ms F sets out a number of matters reported to her by the mother and appears to accept that information as factual. On the basis of the information provided, Ms F says, among other things:

   I am also greatly concerned that B is at risk of malnutrition when he is not in his mother’s care, due the small amount of food intake he has reported to me, leading to inadequate nutritional intake.

   The current decline in B’s nutritional status and health shows a direct correlation to his current blood results in his father’s care.

6. There is no evidence before me that either Dr E or Ms F carried out any further investigation to determine whether B’s iron deficiency was as a result of some reason other than inadequate nutritional intake.

Father’s case

1. The father submits that the primary order should be discharged in so far as it provides for the mother to spend time with or communicate with the child. The bases for that submission can be summarised as follows:

   a)Upon the commencement of the child spending time with the mother pursuant to the primary order the mother took the child to police for interview and alleged that the child had been assaulted by the father;

   b)By order made 9 February 2017 (“the 2017 order”), the mother was restrained from taking the child to police or medical practitioners without prior written consent or notification to the father unless in circumstances of emergency;

   c)Contrary to the 2017 order the mother took the child to a medical practitioner;

   d)On 14 July 2018, the mother withheld the child from the father until a recovery order issued on 14 August 2018;

   e)On 6 October 2018, the mother again withheld the child from the father until a recovery order issued on 24 October 2018; and

   f)The mother failed to register with the C Town Contact Centre as ordered on 24 October 2018 and has not seen the child at all since that date.

2. In response to the mother’s allegations of ignoring a serious health deficiency in the child, the father relies upon his affidavit filed 10 October 2018 including a letter from the child’s treating general practitioner, Dr G, in which she said, among other things:

   On examination, he appeared alert and of good colour. He moved freely and showed no signs of discomfort or pain. There was no conjunctival pallor or bruising on the torso arms or legs. Heart sounds were normal, his lungs were normal to auscultation and his abdomen was non-tender with no masses. …

   My assessment was that there was no clinical suspicion of anaemia and B appeared to be fitting in well at school.

3. Further, the father relies upon a letter dated 5 April 2019 from Dr G who said, among other things:

   B has had ongoing review with myself for medical issues that predate my take over of his medical care – including iron deficiency and low calcium levels. I performed repeat blood tests to assess the progress of these two issues on the 7/11/2019[16] (sic), as well as testing for coeliac disease and a gastrointestinal parasite infection to look for an underlying cause of the afore mentioned issues. On these tests it was discovered that B had positive coeliac serology, in addition to ongoing mild iron deficiency (the hypocalcaemis had resolved). I discussed the new findings with the Paediatric Gastroenterology registrar at the H Hospital, who recommended a further blood test (Endomysial lgA) to confirm the presence of coeliac disease. B was positive to this, and as such I referred him to the Gastroenterology Outpatient Department at H Hospital for a specialist opinion on the results.

   Subsequently, B had a phone appointment with the Paediatric Gastroenterologist, who diagnosed him with coeliac disease as per the ESPHGAN guidelines. They advised a life-long gluten free diet.

   B is managing well with the gluten free diet under the guidance of his father. I continue to monitor his growth and wellbeing, and encouraged adherence to his diet.

   [16] It was accepted that this date should have been 17/11/2018.

The reasons for judgment in 2016

1. The trial judge sets out the extraordinary procedural history of this matter in his judgment. After the trial the mother sought to reopen her case and further evidence was received.

2. The trial judge made a number of findings upon which the decision to change the child’s residence was based, including the following:

   a)“The mother and her parents are highly negative of the father; see little value in him having a relationship with B and have since separation been unable … to disguise their strongly held views and feelings”;

   b)Despite the child being aware that the mother and the paternal grandfather hate the father, the child nevertheless expressed a wish to spend time with him and said that being with the father made him happy;

   c)The mother is unable to separate her personal views of the relationship in order to remain child focused and to prioritise the child’s needs;

   d)“The mother’s household … is exposing the child to psychological abuse in not only the lack of positive respect and lack of encouragement by them of the father’s relationship, but the actions and comments made that leaves the child in little doubt that the father is a risk to him”;

   e)“… the father’s household does not expose the child to risks of physical or psychological harm”;

   f)The child is not scared of the father and there is no basis on the evidence for claims that the child has been hurt or punched by the father;

   g)The mother has demonstrated less insight into the importance to B’s long term emotional development of having a loving relationship with both parents than has the father;

   h)The mother is unlikely to accept any decision of the court contrary to her wishes;

   i)“[The child] needs stability and a chance to enjoy healthy relationships with both parents”;

   j)“The father and his partner offer a more settled emotionally stable environment”;

   k)“The father will provide and nurture the child sensitively and competently”;

   l)“The father will support more honestly and genuinely the child’s relationship with the mother and her family than the mother is able to do”; and

   m)The benefits to the child of a change of residence outweigh the disadvantages.

discussion

1. There seemed to be some misconception on the part of the father, at least initially, as to the application of the Rice & Asplund principles. In my view, it is not the case that just because there is a basis to reconsider part of a parenting order, the entirety of the order must be reconsidered. Ultimately, the father submitted that only the ‘spend time with’ and ‘communicate with’ provisions of the primary order should be reconsidered. Reliance was also placed upon s 69ZQ(1)(a) of the Act which is set out above.

2. The mother makes some allegations which, even if correct, would not in my view result in a reversal of the living arrangements of the child. The fact that she is no longer living with her parents and is living with her partner is not a sufficient circumstance to warrant reconsidering the child’s living arrangements. The findings by the trial judge were not limited to the circumstances of her living arrangements. The mother’s fresh allegations that the father has neglected the child’s health would not support a reversal of the living arrangements even if the Court could be satisfied that some medical condition was not adequately attended to. The remedy, if one were required, would be to put in place some mechanism for any medical condition to be addressed.

3. In the circumstances that have presented themselves since the primary order, as demonstrated in Dr G’s letter dated 5 April 2019, the child did have some health issues which were attended to by the father and resulted in a diagnosis of coeliac disease. The child is now on a gluten free diet.

4. I find it somewhat extraordinary that Dr E and Ms F were prepared to express opinions so strongly advocating the mother’s case when clearly they did not have all the relevant facts.

5. The additional orders sought by the mother in the event the child lived with her, e.g. that the child be home schooled, do not arise and will not be considered as separate issues. In any event, the mother provides no evidence that would justify the making of the further orders sought by her.

6. The ICL opposes any change to the living arrangements for the child and, correctly in my view, submits that the mother does not establish a basis for re-opening of a consideration of the child’s living arrangements. The ICL submits that a hearing in relation to the ‘spend time with’ order is required and I agree.

7. I propose to allocate this matter to my docket and list it for trial directions. The only parenting issue to be determined will be whether or not the mother should spend time with or communicate with the child. I will hear submissions at the directions hearing on what particular facts are disputed and require determination.  

8. I may also consider, at that time, making directions for the hearing of whether or not a vexatious proceedings order should be made against the mother pursuant to s 102QB of the Act. The parties and the ICL should be in a position to make submissions about that matter at the directions hearing.

9. Finally, it was alleged by the mother during the hearing that there was some confusion about whether or not she had registered or could register with the C Town Contact Centre. Accordingly, I propose requiring the ICL to file an affidavit addressing any additional matters relevant to the delay in the child spending supervised time with the mother.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 13 December 2019.

Associate: 

Date:  13 December 2019