Vaughton and Randle (No. 3)

[2014] FamCA 1180

FAMILY COURT OF AUSTRALIA

VAUGHTON & RANDLE (NO. 3) [2014] FamCA 1180

FAMILY LAW – CHILDREN – Parental responsibility – where mother now seeks sole parental responsibility – mother submits the dysfunctional relationship constitutes a change in circumstances – consideration of the “rule” in Rice & Asplund (1979) FLC 90-725 – acrimonious relationship not a new circumstance – further litigation not in the best interests of the child.

Family Law Act 1975 (Cth)

Marsden & Winch (2009) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Ms Randle

RESPONDENT: Mr Vaughton

FILE NUMBER: ADC 3046 of 2010

DATE DELIVERED: 24 December 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 22 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: Adey Lawyers

Orders

1. That the mother’s Application in a Case filed 8 September 2014 be dismissed.

2. That the parties do all things necessary and sign all documents as may be required to secure the enrolment of the child R at Suburb FF Primary School SAVE AND EXCEPT that if a placement is not available then at such other primary school as the parties may agree.

3. That the parties do forthwith agree upon a general practitioner to assess and diagnose whether the child R suffers from a chronic nail biting condition and if so the parties will comply with a treatment management plan including but not limited to the child undertaking counselling by a psychologist or such other qualified health professional as may be directed by the general practitioner.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vaughton & Randle (No. 3) 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 3046 of 2010

Ms Randle

Applicant

And

Mr Vaughton

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 13 March 2014 following a contested hearing spanning four days, orders were made that in summary provided for the following:-

   (1)That the parties have equal shared parental responsibility for R (“the child”) born in 2008.

   (2)That the mother return the said child to reside permanently in the metropolitan area of Adelaide.

   (3)That the child shall live with the mother.

   (4)That the child shall spend significant and substantial time with the father.

   (5)That the parties be restrained from permitting the said child to consult with any counsellor, social worker or psychologist without the written consent of the other.

   (6)That there be an exchange of information in respect of the child’s education.

   (7)That the parties are restrained from changing the residential address of the child without providing at least seven days written notice.

2. Unfortunately, the final orders made did not have the effect of ending the litigation between the parties.

3. The mother filed an Application in a Case on 8 September 2014 seeking the following orders:-

   (1)That order 6 of the orders dated 13 March 2014 be vacated.

   (2)That order 2 of the orders dated 13 March 2014 be vacated and that I, the mother, be granted sole responsibility of [the child].

   (3)In the event that the orders above are not granted then I seek the following:-

   (a)That order 6 of the orders dated 13 March 2014 be vacated;

   (b)That an order made for [the child] to be able to be enrolled in [Suburb CC] Primary School.

4. That application is variously supported by the following affidavits:-

   ·Affidavit of mother filed 8 September 2014

   ·Second Affidavit of mother filed 8 September 2014

   ·Affidavit of mother filed 31 October 2014

5. Paragraph 6 of the orders dated 13 March 2014 provides as follows:-

   That the parties be restrained and an injunction granted restraining each of them from permitting the said child to consult with any counsellor, social worker or psychologist without the prior written consent of the other.

6. The focus of the mother’s application is to discharge the order for equal shared parental responsibility and in lieu thereof place the sole parental responsibility in respect of the child with the mother.

7. Loosely stated, the basis for the ongoing conflict is an assertion by the mother that she and the father have a wholly dysfunctional relationship, that the parental conflict is high and there is no ability for the parties to communicate at a civil level nor to reach any consensus as to parenting issues in respect of the child, generally but in particular relating to his education and health.

8. The father filed a Response on 9 September 2014 and sought the following orders:-

   (1)That the parties do all such acts and sign all such documents so as to enrol [the child] at [DD] School, [GG] Street, [Suburb A].

   (2)Such further or other orders as this Honourable Court deems just and equitable in the circumstances.

9. Notwithstanding that the Response does not directly respond to the orders sought by the mother, it is common ground that the father seeks an order dismissing the mother’s application.  The father relies upon the following affidavits.

   ·Affidavit of father filed 9 September 2014

   ·Affidavit of father filed 28 November 2014

   ·Affidavit of father filed 19 December 2014

10. In respect of the last described affidavit, notwithstanding that it was filed recently, the mother acknowledged that she received a copy of it and does not object to that document being before me.

PREVIOUS PROCEEDINGS

1. I do not propose to repeat at length the remarks and findings that appear in my judgment delivered 13 March 2014.  That judgment forms the background to the current application.

2. The first hearing of the mother’s application took place on 11 September 2014.  On that occasion the mother was a self-represented litigant, the father was represented by counsel.

3. In my reasons delivered ex-tempore on 11 September 2014, I noted that the issues for determination was the mother’s application discharging paragraph 2 of the final orders and giving her sole parental responsibility of the child.  There was also argument as to the school arrangements for the child.  During the course of the proceedings, it was revealed that the child had not been attending a school since July 2013 being the date when the mother was ordered to return the child to Adelaide.  It is also forms part of the unfortunate history of this case that the child has not been attending school for the entirety of 2014 and some significant part of 2013.

4. Given the significance of the orders being sought by the mother, I was not prepared to hear the matter at that time but rather, preferred to list the application for a specific hearing noting in my reasons that regard would need to be had to the principles of Rice & Asplund (1979) FLC 90 725 in order to determine the matter. It is the mother’s belief that if she had sole parental responsibility she would be able to make a unilateral decision as to where the child would attend school. At that time, the mother’s position was that the child should be enrolled in a school close to where she resides namely, Suburb CC Primary School.

5. I attempted to explain to the mother then as I have in the most recent hearing that even sole parental responsibility does not exclude the father from bringing an application that would affect the child’s education and where he attends school.  As at the date of the first hearing of the mother’s application, the Court was placed in the invidious position of not being able to hear and determine the substantive application of the mother, but with the evidence that the child had not yet been enrolled in a school.

6. Clearly, education is a major long term issue that in the ordinary course should be resolved upon the joint decision of the parties.  In this case that was not possible.  Accordingly, orders were made that required the mother in the first place and in default of a decision then the father to determine a school that the child was to attend for the balance of the 2014 academic year, provided that the school was within a pre-determined geographical area.

7. Upon the matter coming back before the Court, I was informed that the child had been successfully enrolled at Suburb FF Primary School for the last term.

8. In relation to the child’s schooling, it is the father’s position that the child has met with some success in terms of the difficult transition to re-enter mainstream education.  On that basis, the child should remain at Suburb FF Primary School.

9. The mother’s position is that she no longer seeks for the child to be enrolled in Suburb CC Primary School and would wish to leave the selection of a school for the child at large.

10. It seems that the mother hopes a successful outcome in respect of her application for sole parental responsibility will enable her to determine where the child goes to school.  The first affidavit filed by the mother on 8 September 2014 is very much directed to the mother’s position that the child should attend Suburb CC Primary School.  Whilst not necessarily specifically excluded from consideration, the mother no longer seeks an order directing that the child be enrolled at Suburb CC Primary School.

HEALTH ISSUES AFFECTING THE CHILD

1. The mother seeks to set aside the injunction restraining the parties from permitting the child to consult with any counsellor, social worker or psychologist without the consent of the other.  The basis for the order centres upon the evidence that the mother was prepared to engage the child in her belief that the father had engaged in sexual abuse of the child and was grooming him.  I found that the basis for the mother’s belief was “ridiculous”.  The mother had engaged a number of health professionals and the concern was that if no restrictions were placed on the parties but in particular the mother, she would readily take the child to a psychologist or counsellor to promote her own view of the child’s circumstances rather than the need for psychological intervention being a requisite part of a treatment program.

2. In her second affidavit of 8 September 2014, the following is recorded:-

   (10)On the 15 May 2014 I took [the child] to a doctor at [HH Medical Practice] upon the advice of a Child and Mental Health Support, herein referred to as CAMHS Worker.  I had become extremely concerned about [the child’s] extreme nail biting and his anxiety at separating from me each and every time I needed to leave him, whether to attend work or otherwise.

   (11)I was advised that in certain situations staff at organisations such as CAMHS, have the authority to override Family Court Orders if they deemed it necessary for the wellbeing of the child involved.  I emailed the father to inform him of this and to inform him I had provided the authority for him to obtain information from the [medical practice].  I also again pleaded with the father for him to allow [the child] to attend a psychologist.

3. The mother’s position is that the child was suffering from anxiety and that it manifested itself in chronic nail biting. The refusal by the father to allow the mother to explore counselling for the child was having an adverse impact on the child.

4. The issue of the child’s health is further taken up in the affidavit of the mother filed 31 October 2014 in para 26 to 44 inclusive.

5. The mother’s concern is that the child has been nail biting now for more than a year and there was a risk that if the child did not stop the behaviour his fingers and toe nails could become infected and possibly deformed.

6. Annexure AM16 to the affidavit is a short medical report from a general practitioner dated 10 October 2014 in the following terms:-

   [The child] presented with infected fingers and toes secondary to biting his nails.  This may be a symptom of anxiety within the child.  I have suggested to the mother that [the child] be seen by a child psychologist.  However the father doesn’t agree with this action and therefore no appointment has been made.

7. There follows a string of email communication from the mother to the father asking that he give his consent to the child receiving counselling or psychological assessment as to whether anxiety is the cause of the chronic nail biting and if so, determine an appropriate treatment program.

8. The father’s position is encapsulated in an email response of 15 May 2014:-

   [The mother’s given name], at what point are you going to read the Court order?  The Court order states that you can’t take him.  Not my rule, not your rule, the Court order.  Also this is the first time I have heard of [the child’s] nail biting problem.  Why was I not informed of this any earlier?  The Court order stated that we are in joint parenting.  Instead of persisting in trying to tell people there is something wrong with our son why don’t you send him back here with me to live.  I’ll start him in school and get him settled while you try and find your feet and get back here.  I’ll hand him back to you when you get here and I can start him at [JJ School] asap.  He will then be in a school and let him have a fresh start…

9. In the father’s affidavit of 28 November 2014, the father seeks to minimise the mother’s concerns in respect of the allegation of chronic nail biting and infection and sets out the following:-

   (42)(a)When [the child] is in my care he does not regularly or incessantly   bit his nails;

   (b) I have observed that when he comes into my care, the shoes that he is wearing are approximately two sizes too small and cause his toes to curl up.  I have now bought him a further pair of shoes.

   (c) On occasions when [the child] puts his fingers in his mouth I will tell him off, distract him and get him to do something else, it is not, and has never been a significant issue in our household. 

   (43)Neither [the child’s] teacher or principal has indicated that [the child] has a problem with nail biting at school.  Furthermore, [the child] has no anxiety issues when in my care.

10. The father’s counsel readily agreed that the only action taken by the father was to reject the mother’s requests.  There is nothing to suggest that the father had sought independent medical advice, or indeed that the problem had abated of recent date.

11. I find that to some extent the father was being deliberately obstructive in his continued refusal to the mother’s request that the child consult with a health professional in terms of a treatment plan for his potentially chronic nail biting.

ISSUES FOR DETERMINATION

1. The primary application is that the mother seeks to discharge the order for equal shared parental responsibility and put in place an order that she have sole parental responsibility.

2. The mother’s case seems to be that the inability of the parties to reach agreement as to the school that the child should attend and matters relating to his health, but in particular nail biting, is sufficient to justify the setting aside of the order.

3. If I dismiss the mother’s application, what orders if any should be put in place in respect of the child’s education and health.

LEGAL PRINCIPLES

1. It is not controversial that a Court should consider carefully the circumstances of a case before varying or discharging a final parenting order.  The power to do so is not to be lightly exercised and the test must focus on the extent, if any, of a new or changed circumstance since the making of the previous order.  The onus to satisfy the Court that there is a need to interfere with a final parenting order rests upon the applicant.  It must be in the interests of the child that any final order be the subject of variation.

2. The “rule” emanates from the remarks of Evatt CJ in Rice & Asplund (1979) FLC 90-725 at page 78,905-06:-

   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…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…

3. The focus therefore is clearly to weigh up and balance the potential for future litigation to impact adversely on a subject child.  In summary, the question should be asked whether to reopen the litigation would in all the circumstances of the case be in the interests of the child.

4. In SPS & PLS (2008) FLC 93-363 Warnock J said at [1]:

   The “rule” in the marriage of Rice & Asplund…that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstances – is certainly useful, if not essential.  But it is not the primary principle in applications for parenting orders.  Nor is its utility or weight uniform across cases in which it might be applied.  In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing…

5. His Honour further commented that:

   [58]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.

6. In Marsden & Winch (2009) 42 Fam LR 1 the Full Court attempted to summarise the rule as follows:-

   (1)The past circumstances, including the reasons for the decision and 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.

7. In the current case, the matter is to be determined on the papers.  Therefore, that process involves a consideration of the mother’s case at its highest.  It does not necessarily require consideration of the father’s response save and except in circumstances where the nature or weight to be given to the potential changes are to be compared to the potential detriment caused to the child.

8. The final orders were made on 13 March 2014.  The hearing was comprehensive and the parties were represented by counsel.  The proceedings also had the advantage of involvement by the ICL.

9. Whilst there was no reference to where the child would attend school, it was not considered to have the potential for conflict given that the parties should have been able to reach agreement.  Equally, there were no significant health considerations raised during the proceedings other than the criticism of the mother that she continued to take the child to various health professionals as part of her allegation that the child had been the subject of sexual abuse at the hands of the father.

10. The mother distils her argument in support of the Court setting aside the order for equal shared parental responsibility under the broad heading that the parties have no ability to communicate with each other and that the parental conflict continues unabated.

1. Obviously, the inability of parents to have any likelihood of consensus in respect of parenting matters is a relevant consideration.  In this case however it is not a new consideration.  It was self-evident and demonstrable during the final hearing that the parties did not hold the other in high regard and that their relationship was dysfunctional.  Nonetheless, I still considered that they did have the ability to communicate if only at a rudimentary level, and that the resolution of the litigation and the return of the child to South Australia would require at some level a reconciliation of their differences.

2. The mother’s submissions were to the effect that whilst she was deeply unhappy about returning to South Australia, once that transition had taken place she is now accepting of her fate and she wants to do no more than provide an appropriate and safe environment in which the child can develop. 

3. There is significant email communication that has passed between each of the parties and it could not be said that there was not at least an attempt to secure the agreement of the other particularly in relation to where the child is to attend school.

4. I accept that school has been an issue as has the proper treatment of any chronic nail biting and risk of infection and deformity.

5. There is general agreement that the child will not benefit from further litigation.  The parties have been in constant conflict for more than four years.  The final orders have produced some level of stability in relation to the child spending time with his parents and extended family.

6. Even on the mother’s case, sole parental responsibility would not give her the unfettered right to select a school for the child without challenge from the father.

7. Whilst it would appear that the parties have not been able to agree on a consistent treatment program should it be determined that the child has a chronic nail biting problem, nonetheless the orders do not prevent each of the parties seeking appropriate medical treatment for the child. It is the prohibition in respect of the child being submitted for psychological or other assessment that is the focus of the mother’s application.

8. The inability of the parties to agree on the identity of the child’s school is a different matter to the child’s education generally.  I can see no good reason why one of the parties should have sole parental responsibility in that regard.

9. The child has only recently transitioned back into mainstream school education and the school reports attached to the affidavit of the father filed 19 December 2014 are cautiously encouraging.

10. The teacher’s comments are apposite to the discussion:-

    After a very unsettled start to school, [the child] has quickly learnt acceptable school behaviour.  He worked hard to regain the trust of the adults and children he works with and is mostly managing classroom activities and outside play independently.  [The child] is an astute student who embraces new learning by using his initiative and following the leads of his class mates, ensuring he is always fully engaged.  He enthusiastically welcomed the opportunities to further develop his bike riding skills in the “ride a bike” sessions, swiftly mastering the balance bike and moving on to the two wheeler group.  I wish him all the best in 2015.

11. Given the opportunity, the mother has not indicated what her current proposal is for the child to attend school.

12. Whilst there is some criticism of the inactivity on the part of the father in respect of the child’s nail biting, I consider that in all the circumstances it is a limited topic of narrow compass.  There is no good reason why the parties should not share the parental responsibility in respect of matters relating to the child’s health.

13. The issues raised by the mother in support of a contention that there are changed circumstances which would justify the Court’s interference is faintly pressed in the mother’s affidavit material.  In this case, the detriment to the child caused by further litigation is self-evident and significant.  The very nature of the matters relied upon by the mother in support of her application are in and of themselves areas of contention and future dispute.

14. If the mother’s contention is insightful namely, that the child’s nail biting is a reflection of underlying anxiety then further disruption that would arise from the revisiting of litigation is not in the interests of the child.

15. Without considering matters raised by the father and taking the mother’s case at its highest, I do not consider that the likely changes outweigh the potential detriment to the child.

16. Accordingly, I propose to dismiss the mother’s application to set aside the order for equal shared parental responsibility.

OTHER MATTERS

1. The issue that brings the parties back to Court is the child’s schooling.  I am satisfied that the parties are unlikely to reach agreement in terms of the selection of an appropriate school but that they will reach agreement in respect of matters relating to the child’s education generally.

2. There is no wisdom to the decision that is required.  I refer to my remarks in the judgment delivered 11 September 2014.

3. I do not think it appropriate that the Court should “take over the role of parents”.  It is however obvious that the parties have difficulty in reaching an agreement.

4. The situation of where the child will attend school for the 2015 academic year needs to be resolved at the earliest possible stage.

5. After a period of more than a year of the child not attending school, his involvement in Suburb FF Primary School is demonstrably to his advantage.  In the absence of any other proposal by either of the parties, I can see no good reason why the child should not continue at Suburb FF Primary School in 2015 and beyond.  It is not necessarily geographically convenient for either of the parties but importantly the child appears to be thriving in the school environment.  After a full final term in 2014, it would not seem sensible to allow the parties the opportunity to further complicate matters for the child by the disruption of a further change in school.

6. Accordingly, I propose to order that the parties do all things necessary to cause the child to be enrolled in Suburb FF Primary School for the 2015 academic year and beyond.

7. There is uncertainty as to whether the child’s nail biting still remains a chronic and untreated condition.

8. As remarked, I consider the mother has been appropriately active in pursuing an agreement from the father that there needs to be a joint approach to the problem.  The father has refused to cooperate with the mother without proper justification.

9. Whilst the issue is narrow, it is nonetheless a matter that needs to be determined.  To that extent I propose to order that the parties jointly agree upon a general practitioner to undertake the management of the child’s nail biting condition and if, in the opinion of that general practitioner, the child needs to consult with a suitably qualified health professional as to matters relating to anxiety or other adverse presentation, then the parties will do all things necessary to give effect to such treatment plan.

CONCLUSION

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 24 December 2014.

Associate: 

Date:  24 December 2014