TREWITT & BROCK
[2021] FCCA 1255
•5 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TREWITT & BROCK | [2021] FCCA 1255 |
| Catchwords: FAMILY LAW – Parenting – lengthy history of litigation and disputation concerning parenting arrangements for a child now aged 12 – father’s application for fresh parenting orders dismissed pursuant to the Rule in Rice & Asplund. |
| Legislation: Family Law Act 1975 (Cth) s.60CC |
| Cases cited: Marsden & Winch (2009) FamCAFC 152 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 |
| Applicant: | MR TREWITT |
| Respondent: | MS BROCK |
| File Number: | NCC 770 of 2011 |
| Judgment of: | Judge Terry |
| Hearing date: | 4 May 2021 |
| Date of Last Submission: | 4 May 2021 |
| Delivered at: | Newcastle |
| Delivered on: | 5 May 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guyder |
| Solicitors for the Applicant: | Burke & Mead Lawyers |
| Solicitors for the Respondent: | Foat Roberts Lawyers |
ORDERS
The father’s application filed on 18 December 2020 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Trewitt & Brock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 770 of 2011
| MR TREWITT |
Applicant
And
| MS BROCK |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
On 18 December 2020 the father filed an application seeking orders about his daughter, X, who was then aged 11.
On a final basis he sought orders that the parties have equal shared parental responsibility and that X live in a week about arrangement from Friday to Friday. He sought a number of other orders including orders about time on special days.
On an interim basis he sought orders that X spend time with him from Saturday to Monday each alternate weekend and for an afternoon in the off week for three weeks and that she then she commence spending time with him from Friday to Monday each alternate weekend and an afternoon in the off week.
The mother filed a response seeking dismissal of the application, and the matter was listed on 4 April 2021 for consideration of whether the father’s application should be dismissed at a preliminary stage pursuant the rule in Rice v Asplund.[1]
[1] Rice & Asplund (1979) FLC 90-725
Background
The father is 41 and the mother 47. They were in a relationship from about 1999 to December 2010 and X, born in 2009, is their only child. X was about 15 months old when the parties separated.
The father filed an application for parenting orders in March 2011, a few months after separation, and the matter was then in the court system until May 2014 when final orders were made by consent.
During those three years a child inclusive child dispute conference was conducted, a family report was prepared, a psychiatric report was prepared about each of the parents and an addendum to the family report was prepared. The parties had to attend interviews for each of those events except for the preparation of the addendum to the family report.
The matter was listed for hearing on 19, 20 and 21 May 2014 but on 19 May 2014 the parties settled their dispute.
Final orders were made by consent for X to live with the mother and spend time with the father. Commencing in 2015 that time was to be each alternate weekend from Friday to Monday and each alternate Wednesday overnight to Thursday and for block periods of time during the holidays.
There is a notation to the orders which states that the parents would consider extending that time by an extra night at the end of 2015, but that was not an order. It was simply a notation and a suggestion that this would be discussed in good faith.
There was never any agreement for the time to be extended, nor should the mother be criticised for that.
X spent time with the father pursuant to the orders until 21 March 2019.
On Thursday 21 March 2019 the mother attended at the father’s home to collect X but he would not allow her to go to the mother. The mother called the police. The police advised the father to return the child but he did not do so, and on 26 March 2019 the mother filed an application for a recovery order.
The mother’s application came before the court on 3 April 2019. On the previous day the father had filed a fresh application seeking an order that the child live with him and spend five nights per fortnight with the mother and as a result an order was made on 3 April 2019 for the parties to attend a child dispute conference.
Later that day an order was made for the child to be returned to the mother and for the father to spend time with the child supervised by B Contact Centre, a private supervision service.
The memorandum prepared after the Child Dispute Conference revealed that there were significant underlying issues in the matter and that although on the surface the orders made in 2014 had been complied with, the time between 2014 and 2019 had not been trouble free.
During that period X had been diagnosed with ASD and it was noted that she was receiving support from a psychologist and had support at school.
Both parents alleged that the other had been physically and excessively disciplining the child. The mother made allegations about inappropriate supervision and about the failure by the father to engage with the child’s treating health professionals. There was an allegation of alignment by the father.
Following the orders being made for X to be returned to the mother a number of subpoenas were issued and an Independent Children’s Lawyer was appointed.
On 21 June 2019 orders were made for the father to contact and attempt to speak to the child’s occupational therapist and key intervention worker and for the mother’s solicitor to make inquiries about a person or organisation who could provide family therapy for the family, and the matter was adjourned to 26 July 2019 for further consideration.
On 23 July 2019 the father filed an amended application and a supporting affidavit. The orders he proposed in his amended application were that:
a) The mother have sole parental responsibility for X, born in 2009.
b) X live with and spend 100 % time with the mother.
c) The father is to provide, where possible, financial support for X’s education and autism support.
In the affidavit the father filed in support of that amended application he complained at length that the mother had not agreed to extend his time with X by an extra night and that his time with her fell below substantial and significant time.
He said that the mother had made over 800 allegations of abuse against him, most prolifically before the 2014 orders were made but continuing each year after they were made. He went on to say this:
The number and continuing allegations of abuse throughout X’s life has caused considerable stress for myself. The reinvolvement of the court has resulted in the re-emergence of related symptoms including insomnia, headaches, muscle aches, fatigue, vomiting and bleeding. It is my expectation that my health will continue to deteriorate as the court process continues.
He also said this:
I believe there is little value in embroiling X in court action for the majority of her childhood, especially considering X’s autism and the trauma identified by her psychologist.
The father attended court on 26 July 2019 but in the light of his amended application the matter was finalised on that day. The orders made by the court were as follows:
a) All previous orders are discharged.
b) The mother shall have sole parental responsibility for the child X born in 2009 (“the child”).
c) The child shall live with the mother.
d) The child shall spend time with the father as agreed in writing between the mother and the father noting that the mother may require such time to be supervised at the father’s expense.
THE COURT NOTES THAT:
A. The child is spending time with the father at B Contact Centre and is enjoying that time and the court hopes that the child shall spend time with [the father] in the future.
This was not exactly what the father proposed, in that the court did not make an order that he not spend time with his daughter. The court made an order that the time be as agreed in writing noting that the mother may require the time to be supervised.
It was noted on the order that the child was currently spending time with the father at B Contact Centre and was enjoying that time, and that the court hoped that the child would continue to spend time with the father in the future.
Despite the orders envisaging the father continuing to spend with X and endeavouring to ensure that it occurred if he was willing for it to occur, the following day the father handed X a letter saying that he would not be spending time with her in the immediate future. He carried that into effect and between July 2019 and March 2020 he spent no time with her.
In March 2020 the mother received a letter from a solicitor acting for the father asking if she would agree to monthly visits.
The mother agreed to a resumption of time supervised by B Contact Centre. X was resistant at first but in October 2020 supervised visits commenced and they have been taking place for two hours on the third weekend of each month at the father’s home.
On 18 December 2020 the father filed the application seeking the orders that I have referred to above.
The Rule in Rice & Asplund
There has been copious previous litigation in this matter and in the 1979 decision of Rice & Asplund Justice Evatt said as follows about the approach the court should take when an application was made for fresh parenting orders:
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 the 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, as counsel for the appellant submitted, 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. 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 a court to consider afresh how the welfare of the children should best be served. These principles apply whether the original order was 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.[2]
[2] Rice & Asplund (1979) FLC 90-725
This became known as the Rule in Rice & Asplund and it is frequently applied at a preliminary stage to determine whether an application should be permitted to proceed, potentially to a full hearing.
In Marsden & Winch[3] the Full Court was at pains to emphasise that even at this stage the paramount consideration was the best interests of the children. Referring to Warnick J’s decision in SPS & PLS the Full Court said as follows:
Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
…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.
[3] Marsden & Winch (2009) FamCAFC 152
The Full Court went on to discuss the matters the court should consider in determining whether a fresh application should be allowed to proceed and said as follows:
In Miller & Harrington (supra) the Court posed the question:
Adapting the language used by Warnick J in SPS and PLS [supra], 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?
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.
The father’s case
The father said that in June 2019, shortly before the final orders were made, he went to C Hospital and was diagnosed with chronic stress and Post Traumatic stress disorder. He said he had been told these illnesses were directly related to his involvement in litigation and the mother’s complaints about him. He said this:
After presentation to C Hospital in June 2019, I was diagnosed with Chronic Stress by my general practitioner, Dr D in August 2019 and Post Traumatic Stress Disorder. It is my understanding from Dr D and my clinical psychologist, Ms E, that these illnesses are directly related to:
a) The number and frequency of the allegations Ms Brock had made about me;
b) The impact of Ms Brock’s allegations on X’s relationship with me;
c) The length and general stress of litigation, including the reasons behind His Honour Judge Myers’ recusal and transfer of my proceedings to the docket of Her Honour Judge Terry.[4]
[4] Paragraph 18 Father’s affidavit filed on 30 April 2021
The father said that he had commenced supervised time with X in October 2020 and it was going well and she was enjoying it. He said he had to commence proceedings because the mother would not agree to anything more than what was currently happening and X would benefit from being able to spend more significant time with him.
The father said that in hindsight he could see that he had given up on the litigation previously because of his mental health but now that he was engaged with a mental health practitioner he was building up skills and coping strategies and he could manage reengaging with the court process.
By implication he was saying was that he was not likely to walk away from the proceedings again. He said that this was a change of circumstances and that X wanted to spend more time with him and that it was in her best interests to allow the proceedings to continue.
The mother’s case
The mother’s case was that there had been endless problems between the parties in relation to parenting of X since separation when X was 15 months old. She was not convinced that the diagnosis the father claimed he had was valid and she expressed concern about the impact on her and the child of ongoing litigation given the history of the matter.
The mother has recently commenced seeing a counsellor/psychologist to assist her with stress arising out of issues to do with trying to reach agreement with the father about X. She said that X had ASD and faced many personal challenges and that it was not in her best interests to allow litigation about her to be reopened.
Discussion
I have to decide whether I should allow the application to proceed or should dismiss it pursuant to the rule in Rice v Asplund.
It is not just a matter of the father showing a change of circumstances. Even if there has been a change of circumstances, the court has to consider whether there is a sufficient change to justify embarking on another round of litigation.
The father’s mental health diagnosis and his engagement in ongoing treatment may mean that he is better equipped to robustly handle litigation and that may qualify as a change of circumstance but it does not mean that allowing the litigation to continue would be in X’s best interests.
X is 12 and she has autism spectrum disorder. She spent time with her father after separation but even on his case it was beset by endless problems for which he blames the mother.
The father’s unsupervised time with X ended in 2019 as a result of him withholding the child from the mother, not because of any action by the mother. He then spent supervised time with her for a few months before that also ended because he decided to step out of her life.
He now wants to step back in.
Time was resumed with some difficulty in 2020 and X is currently spending supervised time with him by agreement with the mother.
The father said that I should allow him to continue with the litigation because this time he will persist with it and will be able to deal with it because of his mental health diagnosis and treatment, but that in itself raises a red flag, because there is a considerable risk that if this litigation is allowed to proceed the parties will again be in court for a very lengthy period.
The affidavit the father filed for the hearing that I conducted yesterday raises considerable concern in my mind about what might happen if this matter is allowed to proceed. It is full of complaints about the mother. The father also provides a specious version of the history of the matter. There are many examples of that in the affidavit but I will just refer to a couple of them. For example he says this:
Due to this earlier experience with the court system, in July 2019 I felt I had no option but to agree to what Ms Brock was proposing because I didn’t want to endure another three years of litigation.[5]
[5] Paragraph 20 Father’s affidavit filed on 30 April 2021
The father failed to mention anywhere in his affidavit that the orders made on 26 July 2019 were largely the orders he proposed in a document he filed a few days before. It was not a question of the mother forcing anything on him, and in fact the orders that were made were slightly more child focused than the orders he proposed.
Another example of this specious version of events begins as follows:
The first time X was made available to spend time with me since 27 July was 6 September 2020, supervised by B Contact Centre at my house.[6]
[6] Father’s affidavit paragraph 38
The father failed to mention anywhere in his affidavit the letter he sent to the child or the fact that he deliberately stepped out of her life for a lengthy period of time after the orders were made in July 2019.
It is apparent from the father’s affidavit and the specious version of events he gives in various paragraphs in it that he accepts no responsibility for his role in the time ceasing.
There is a high risk that if this litigation is allowed to proceed the parties may find themselves embroiled in another lengthy round of litigation such as happened between 2011 and 2014. It gives me absolutely no comfort to know that the father now feels he is able to robustly handle litigation, in fact it is quite a frightening comment to hear from the father.
The father’s application that X spend equal time with him is also concerning, as on the history he gives of the parties’ relationship it has no prospects of success and other snippets in the evidence suggest that he may not easily back away from it.
There is no doubt that the mother has control of the time the father spends with X under the current orders. In a worst-case scenario, she could say that there will be no further time. The existing orders would permit that to happen. There is also no reason to suppose on the current evidence that she is likely to agree to X spending any greater time with the father than she is at the moment, or agreeing to the time being unsupervised.
However, what is the benefit of allowing the litigation to continue? The father may not gain the orders he seeks, or even more time, if the litigation continues. X is 12. She has had a disjointed history of care from the father. She has autism spectrum disorder. She is approaching an age when children often like to say for themselves what they want and expect people to listen to them.
There is a risk that the child’s time with the father will cease if the litigation is not allowed to continue but he may not gain more time with her if the litigation is allowed to continue.
The impact on the child and the mother of allowing the litigation to continue would be to place them under extreme stress, and in the case of the mother, to cost her money.
If the father’s application is not allowed to proceed his time with X may not progress and it may even stop, but when that risk is weighed against the risk that if the matter is allowed to continue the parties will be involved in years of litigation and placed under significant stress and financial stress, the balance is in favour of not allowing the father to continue with his litigation.
Enough is enough. X knows the father. She can seek him out when she is older. He is not a stranger to her. But I am not going to allow this matter to proceed through the court system and I am going to make an order that the father’s application be dismissed.
I repeat that any parenting order I make, even a Rice v Asplund order, is an order which is made treating the child’s best interests as the paramount consideration and I cannot consider that it is in the best interests of this 12-year-old to be embroiled in another round of extensive litigation between her parents simply because the father now has a mental health diagnosis and considers that he is robust enough to endure that.
I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 8 June 2021
0
2