VENTURA & VENTURA
[2020] FamCA 1127
•23 December 2020
FAMILY COURT OF AUSTRALIA
| VENTURA & VENTURA | [2020] FamCA 1127 |
| FAMILY LAW – PARENTING – non-compliance with final orders – whether the orders ought to be varied – consideration of the rule in Rice & Asplund – allegations of risk – untested expert evidence – costs application – no basis on which to vary orders – allegations of risk unsubstantiated – application dismissed – no orders as to costs. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 117 |
| Anderson & Anderson [1982] FamCA 36 Rice & Asplund [1978] FamCA128 |
| APPLICANT: | Ms Ventura |
| RESPONDENT: | Mr Ventura |
| FILE NUMBER: | SYC | 9191 | of | 2020 |
| DATE DELIVERED: | 23 December 2020 |
| PLACE DELIVERED: | Sydney via videoconference |
| PLACE HEARD: | Sydney via videoconference |
| JUDGMENT OF: | Altobelli J |
| HEARING DATE: | 22 December 2020 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Mr Boyce |
| SOLICITOR FOR THE APPLICANT: | Boyce Family Law & Mediation |
| COUNSEL FOR THE RESPONDENT: | Ms Tabbernor |
| SOLICITOR FOR THE RESPONDENT: | Freedman & Gopalan Solicitors |
Orders
The Application for interim orders contained in the Application filed by the Applicant on 18 December 2020 be dismissed.
Within 6 weeks of the date of this order, both parents are to enrol in the ‘Keeping Kids in Mind’ or equivalent program, and are to each provide evidence of same to the other’s legal representative upon enrolment.
The matter be referred to the Docket Registrar for further case management of the final orders sought in the Application filed 18 December 2020.
Each party pay their own costs.
The parties have leave to relist the matter before Justice Altobelli on 7 days’ notice within 90 days of today’s date should there be any further difficulty with the implementation of the final parenting orders made by this Court on 19 November 2019.
NOTATION
The Respondent father may be filing a Contravention Application.
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 Ventura & Ventura 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 SYDNEY |
FILE NUMBER: SYC 9191 of 2020
| MS VENTURA |
Applicant
And
| MR VENTURA |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This matter came before me yesterday in my capacity as duty judge in the Sydney Family Court in the week before Christmas. The following short form reasons for judgment explain why the Court has made the orders it has made.
In circumstances where the father was not spending time with the children contrary to a very recent order of the Court, the matter was listed urgently and came before the Court on 22 December 2020. This case concerns young children, X and Y, both three years old. The girls live with their mother who was the applicant in this case, but currently do not spend time with their father notwithstanding the terms of the final consent orders entered into between the parents.
Whilst the orders in question were made on 19 November 2020 before a learned Registrar of this Court, the orders were signed by the parents on 19 and 20 August 2020 and the parenting arrangements reflected in the orders came into effect at that time. The orders in question, where relevant for present purposes, provide for the children to spend time with their father from Friday afternoon until Monday morning each alternative weekend and each alternate Wednesday from 8.30am until Thursday at 8am. Given the proximity of Christmas, the orders also relevantly provide for the children to spend time with their father this year from 10am, 28 December 2020 to 10am, 2 January 2021.
By way of application filed 18 December 2020, the mother sought interim orders proposing that a number of the orders made on 19 November 2020 be suspended and replaced with other orders. For present purposes, the relevant order is the suspension of order 3, the order providing for the children to spend time with their father. During the period of the suspension the mother proposed that the children spend time with their father each Wednesday from 3pm until 5pm and each alternate Saturday from 9am until 5pm. The changeover would take place at the mother’s residence unless the children were attending daycare on the relevant days. The mother also sought an order for the appointment of a single joint expert to prepare a report and a number of ancillary orders. The mother’s application was supported by her affidavit sworn 17 December 2020. The mother appeared through her solicitor, Mr Boyce.
When the matter came before the Court, the father relied on his affidavit of
21 December 2020 and a Contravention Application of the same date, a copy of which has been provided to the Court, but which apparently has not yet been filed. The father appeared through his Counsel, Ms Tabbernor, who provided a helpful case outline document. In short, the father sought dismissal of the mother’s interim application, that the parents complete a Keeping Kids in Mind parenting program and that a notation be made that the current operative parenting orders were those sealed on 19 November 2020.
The mother’s case, shortly stated, was that if the Court did not suspend the orders as currently framed for the children to spend time with their father, it would present an unacceptable risk of harm to them because of the impact that this time was having on them. When the Court pressed Mr Boyce to articulate what precisely was the unacceptable risk of harm to the children, he submitted that it was their mental health primarily through suffering separation anxiety disorder. He emphasised that in other respects the mother was not contending that the father presented a direct risk of harm to the children, a matter that was reflected in her proposal that he have unsupervised daytime contact with the children. Mr Boyce acknowledged that the mother had been legally represented at all relevant times but he valiantly sought, on instructions no doubt, to minimise the significance of this legal advice because of concerns articulated by his client.
The father’s case, shortly stated, was that the parenting arrangement embodied in the consent orders reflected arrangements that had been in place for the father to spend time with the children since January 2020 and which had been increased only slightly in August 2020. He denied that there was any risk of harm to the children other than, implicitly, as a result of the mother preventing him from spending time with them. The issue for the Court therefore is whether the orders should be varied because of the matters raised by the mother or otherwise.
An issue that the Court raised with both Mr Boyce and Ms Tabbernor was whether the principles articulated in the Full Court’s decision in Rice & Asplund [1978] FamCA 128 were enlivened in this case such that the Court would need to be satisfied about matters such as changed circumstances or that it would otherwise be in the best interests of the children to revisit parenting arrangements that had been entered into so recently.
The applicable law is found in Part VII of the Family Law Act 1975 (‘Act’).
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
60CC Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 also contains a number of relevant paragraphs, reproduced below:
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
As this Court has, in fact, decided that the so-called rule in Rice & Asplund does, in fact, apply, the statement of principle that is found in that case, and which has been endorsed in many later decisions including decisions of the Full Court, is reproduced below:
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.
I now turn to the history and background of this matter. Most of the history and background, though not all of it, is derived from the mother’s affidavit of 17 December 2020. The mother is 30 years old, the father 32. They commenced cohabitation in April 2014 and married in 2016. They commenced living in Sydney in March 2017 and separated in December 2019. The girls are identical twins; they were born three weeks premature. The mother had difficulties feeding them. They have had some health issues including reflux, poor calorie intake and texture sensitivities.
The mother returned to fulltime work when the girls were seven months old. They attended daycare throughout the period that she was working, five days per week, until about October 2020 when, it would seem, partly as a result of COVID-19 and partly as a result of the high cost of full time daycare for the children, the mother ceased working on Fridays, and thus the children were in her care.
As a result of family violence perpetrated by the father on 15 July 2019, a final apprehended domestic violence order was put in place which operates until July 2022. The order does not affect the father spending time with the children. Criminal charges were also brought against the father which resulted in the imposition of a bond on him.
The mother explains that the children were about two years and four months old at the date of separation. The mother appears to have been legally represented, either from the date of separation or shortly thereafter. At paragraph 102 of her affidavit she deposes that the parents ultimately agreed, through their respective legal representatives, that the children would live with her and spend alternate Friday, Saturday and Sunday nights with their father. This arrangement appears to have started from January 2020.
The parents went to mediation with a leading FDR practitioner in August 2020 and it seems the mother agreed to the father’s proposal that the children should spend an additional night with him each alternate week. It would seem that, as a result of the mediation, the parents entered into and signed consent orders in August 2020 which were subsequently made in November 2020.
The mother asserts that she signed the consent orders under duress from both the father and her then lawyers, and against her better judgment as to what she thought was best for the children at the time. She explains that she signed the consent orders because she felt extreme pressure and had no choice but to do so.
The Court observes that this does not explain why the mother entered into parenting arrangements that provided for the children to spend three nights each fortnight with their father as early as January 2020, remembering that the consent orders were not signed until August 2020. The mother asserts that she did try to explain to her lawyers her concerns about the children spending overnight time away from her, but she says they did not take her seriously and, in fact, advised her that if she went to Court the father would get at least three nights per fortnight. The mother asserts at paragraph 24 of her affidavit that since the date of separation, and then particularly since the implementation of the consent orders in August 2020, the children have not been coping with the extended time away from her and have been experiencing severe anxiety symptoms, night terrors and other behaviours that cause her serious concern. In fact, at paragraph 105, the mother asserts that after the arrangements started in January 2020, it quickly became apparent to her that the children were not coping.
Ultimately, the mother decided on 7 December 2020 she could not facilitate the children’s time with their father under the consent orders because to do so would put them at risk of further harm and suffering. At paragraph 121 of the mother’s affidavit, she deposes that since the consent orders were made the children manifest a range of behaviours including routine panic attacks before changeover and before video calls with the father; they experience severe night terrors almost every night; they manifest extremely clingy and anxious and will not leave her side; they tell her that they want to stay with her forever and they jump and hide when they hear a door open and say, “Please don’t leave us”.
The mother was so concerned about the children’s behaviour that she went to her general practitioner who prepared a mental health care plan for the children and referred them to a psychologist, Ms B. Ms B prepared a report dated 7 December 2020 which is annexed to the mother’s affidavit. The report of Ms B seems to be based on one appointment with the mother and the children and obviously based on the mother’s report to her. Based on this, the conclusion appears to be that the children are experiencing symptoms of psychological distress which are consistent with separation anxiety disorder. Ms B recommends that if the children were to spend less overnight time with the father, the separation anxiety exhibited by the children and the night terrors would likely diminish. More will be said about Ms B’s report below.
The father in his affidavit of 21 December 2020 explains that he has not observed any of the behavioural issues relating to the children that she asserts occurs in the mother’s care and that his time with the children has always been loving and uneventful.
With that history and background of this matter in mind, I proceed to discuss the material before the Court. This Court believes that it is reasonable for it to expect, in most cases, where there are no obvious disentitling and disabling features such as mental health issues or drug and alcohol addictions, that when parents enter into parenting arrangements, particularly with the assistance of legal representation, they do so in the belief that the arrangements are suited for, and in the best interests of, their children. On the mother’s own evidence, for most of this year the children have spent at least three nights each fortnight with their father. The mother then agreed at a mediation with a leading family dispute resolution practitioner to increase that to four nights each fortnight. The registrar who made these orders in November must have come to the conclusion that the orders were in the best interests of the children.
The mother now asks the Court to find that the orders are no longer in the best interests of the children and, inferentially, based on her own evidence, that they were at no stage in the best interests of the children. The mother’s own evidence is that the children were not coping with the arrangements since the date of separation let alone after the consent orders for extra time were implemented in August.
It is hard to escape the impression that this is an arrangement that the mother agreed to, notwithstanding any concerns, for most of 2020. Of course, the mother raises serious concerns about the quality of the advice that she received and the pressure to which she was subjected to. It is not unusual, in this Court’s experience, for parents who have entered into orders to subsequently assert that they felt under pressure. In a slightly different context, litigation under section 79A of the Act, the Full Court observed in Anderson & Anderson [1982] FamCA 36 as follows:
Counsel and solicitors representing clients involved in litigation in the Courts frequently subject their clients to considerable pressure to compromise that litigation. That is a necessary and proper part of the function of such legal representatives in the proper discharge of their duties to their clients and the Court. If every such compromise were to be open to attack by way of appeal by the client who subsequently thought better of it, there would be no end to litigation in this or any other Court. If in any particular case a client under no legal disability has been so overborne by his legal representative that such representative has breached the duty which he owes to the client in relation to the litigation then in train, … then the client’s proper remedy, in my opinion, lies elsewhere than in an appeal against the orders made with his consent in that litigation. The legal representative is the agent of the party, and the party is bound by the acts of his agent so long as they are within the agent’s actual or ostensible authority.
It is hard in the context of this case to place much weight on the mother’s contention that she was under some form of duress or pressure in entering into the parenting arrangements that she did and the subsequent consent orders. Indeed, the mother seems to have been represented by a firm purporting to be family law specialists: B Family Lawyers. The mother certainly cannot, with respect to her, blame her lawyers for any errors of judgment she made in agreeing to parenting arrangements that, in accordance with her own evidence, she believed not to be in the best interests of the children at the time. It seems inherently implausible that the mother would hold such concerns about the appropriateness of the parenting arrangements in place for her children and then actually consent, not just to their continuation, but to their extension. There must be some room to doubt about the concerns that the mother expresses.
There was some suggestion in the mother’s case, through her solicitor’s submissions, that she felt overborne in terms of the negotiations she had with the father even though she was duly represented. This is inconsistent, however, with the mother’s own evidence that suggested the father initially proposed that the children live with him for four days each week, but what the parents ultimately agreed to was that the children spend time with him for three nights each fortnight. The actual agreement is inconsistent with her assertion of being overborne.
The reality is that parents routinely compromise in their negotiations about matters including parenting arrangements for their children. Parents consent to arrangements that often, not always, but often, result in parenting orders. Those consensual arrangements do not necessarily require a parent to be happy about the compromise, but rather, that having weighed up the pros and cons of pursuing a different outcome, they decided the compromise was appropriate and, in this case, in the best interests of the children. See in this regard DS & DS [2003] FMCAfam 365 at [26].
In the context of an interim hearing it is not possible to make findings of fact but that doesn’t mean that the assertions made by the parents in this case cannot be subjected to critical scrutiny. At paragraph 121 of the mother’s affidavit, clearly an important assertion in her case, the mother emphasises the five behaviours that have manifested since the consent orders were made. The Court is prepared to give the mother the benefit of the doubt and assume that she refers to the period since the consent orders were implemented in August rather than when they were made in November.
An immediately difficulty arises in terms of the weight to be given to the mother’s assertions at paragraph 121, in that they are inconsistent with paragraph 24 of her affidavit. In paragraph 24 she makes it very clear that since separation the children were not coping with extended time away from her and had been experiencing severe anxiety symptoms, night terrors and other behaviours that caused her concern.
Another issue that arises about the weight that can be given to paragraph 121 of the mother’s report is the inconsistency with what Ms B describes in her report as the current symptoms of psychological distress. These symptoms can, of course, only have been reported by the mother. In the report the Court infers that the mother told the psychologist that the children suffered frequent physical symptoms such as nausea and occasional vomiting, but that is nowhere described in the mother’s affidavit.
Even though the mother does not seem to explore any alternative hypothesis about why the children are behaving as she reports, other than attributing this to the amount of time they spend away from her and in the father’s care, the Court must nonetheless explore this in the context of the evidence. This is by no means an unusual course of action in cases where an unacceptable risk of abuse is alleged.
It is possible, for example, that the changes to the children’s routine have contributed to their behaviour. In Ms B’s report, for example, she explains that at the children’s age they thrive on routine and can be easily unsettled with unexplained changes. The material before the Court indicates that the children have been exposed to a number of recent changes in their life.
In October, the arrangement that they have known for almost all of their lives involving daycare on Friday changed so that they are now in their mother’s care. The mother seems to have advised childcare to ensure that the children do not sleep for more than one hour each day and this occurs in the context where, amongst others, the mother’s concerns about the children relate to their sleeping patterns. The children have not seen their father for several weeks. There are obvious difficulties in the relationship between the parents which the mother described to Ms B as being a negative one. These are all potentially significant changes in the children’s lives and routine.
The mother told Ms B that she is in therapy to address the PTSD caused by the relationship. The mother does not disclose this in her affidavit. The Court does not know therefore how the PTSD is manifesting itself in the mother’s life and how therapy is addressing this. The Court does not know, therefore, whether the mother’s PTSD is affecting directly or indirectly her parenting of the children. The Court does not know, for example, whether the mother’s PTSD is generating anxiety in the mother.
There are, thus, a number of alternative hypotheses that might inform why the children are behaving as they are alleged to be behaving by the mother. Ms B seems to acknowledge in her report that there is a “normal” level of anxiety in children due to separation from the parent. Her hypothesis however is based entirely on the mother’s report and is that the anxiety of these children is not normal and is consistent with separation anxiety disorder. One cannot help but note that the mother’s concerns about the children’s separation anxiety occurs in the context of the children’s lived experience of being in daycare for most of their lives and therefore separated from their mother. Indeed, the mother acknowledges that the father was for some period responsible for taking the children to and collecting them from daycare because of the separation anxiety they manifested. She clearly trusted him to manage this issue.
It is important to recognise what Ms B recommends in her report. She recommends “less overnight time with the father at this time”. The mother’s proposal, of course, is the total elimination of overnight time in circumstances where the mother tells Ms B that the father has never been abusive towards the children so far as she is aware and that he is a good dad.
I turn to the Rice & Asplund issue. Taking the mother’s evidence at its highest, the only change in the children’s circumstances is an exacerbation of, adopting Ms B’s diagnosis, the children’s existing separation anxiety. On the mother’s own evidence this was an issue that existed well before the consent orders were entered into. She knew about these issues for most of 2020 and did nothing about them. In fact, she agreed to an extension of the children’s time with their father. It is hard to discern the change in circumstances on which the mother can rely to justify the reopening of the issue of the time the children should spend with their father. The rationale of the rule in Rice & Asplund is to protect children from the inevitable but nonetheless often indirect consequences on them of parental conflict and litigation.
Nonetheless, if the Court were concerned that the existing parenting arrangement was not in the best interests of the children, then Rice & Asplund would not be a barrier to considering the mother’s application. In this regard the Court must consider, by reference to the material before the Court, the matters referred to in section 60CC of the Family Law Act.
The evidence, including the mother’s own evidence, confirms that the children have a meaningful relationship with their father but this is predicated on the children spending time and communicating with him. The mother has denied this of the father. The proposal for limited daytime contact addresses meaningful relationship in a very minimalistic way.
The mother’s case is that there is risk of harm to the children, namely a risk to their mental health as a result of their separation anxiety. This is not established to the Court’s satisfaction even, at what I would describe, the much lower threshold in interim cases. There are inconsistencies in her evidence that have already been noted. There are limitations on the weight that can be placed on Ms B’s report as it was based entirely on what the mother told her. The mother does not assert that the family violence that the father perpetrated against her is an operative factor in the current application. Indeed, she tells Ms B that the father has never been abusive towards the children and that he is a good dad. The mother’s own proposal is for changeover to occur at her home; a matter that is inconsistent with any concerns about family violence. There are alternative hypotheses which potentially explain the children’s behaviour which are not attributable to separation from the mother or overnight time with the father. The case for risk of harm is not established.
There are no relevant views on which the Court could place any weight. Indeed, the Court finds disconcerting the reference in the report of Ms B to her asking the children if they liked sleeping over at Dad’s home. Given the children’s age and the context of the interview with the mother present, one must wonder about the appropriateness of asking this question.
The evidence of both parents suggest that the children have a good relationship with each of them.
Despite an order for equal shared parental responsibility, the mother did not consult with the father about taking the children to the doctor and then to a psychologist, Ms B; she should have done so. She deprived the father of the opportunity to participate in these important events that might, with his participation, have thrown light on what the mother says the children are experiencing and appropriately involved him in finding solutions.
The mother’s actions have brought about a very significant change in the children’s lives. Ever since the parents separated they have become accustomed to spending regular overnight time with their father and the mother has deprived them of this. Her proposal, inconsistent as it is with Ms B’s recommendation, deprives the children the opportunity to spend overnight time with the father, with the range of unique interactions that can only occur in that context. The evidence that the father gives about his time with the children creates the impression that it is a happy and meaningful experience for all of them.
The father raises no issues about the mother’s parenting capacity. The mother is critical of the father’s parenting but mainly, it would seem, because he won’t do what she wants, which is to vary a parenting arrangement to which she has consented. Viewed objectively, there is little material in this case to suggest that there are concerns about the capacity of either parent to meet the needs of these children though, as previously observed, the mother has not disclosed to the Court the PTSD that she suffers and the Court is thus deprived of the opportunity to explore whether, and if so in what way, it affects her parenting capacity.
The Court is concerned about the mother’s attitude to the children and to her responsibilities as a parent. The parenting arrangement that was in place before the mother unilaterally ceased the same is one that the mother agreed to with the benefit of legal representation. The mother’s concerns about the quality of her legal representation and the pressure that she claims she was subjected to are noted but they are not matters in respect of which this Court is prepared to place significant weight upon given the mother’s own evidence about the history of care arrangements and her failure to act at any number of points over the last year.
The Court must take into account family violence. As mentioned above, the father has an apprehended violence order against him and has entered into a bond following criminal proceedings. The mother does not assert that the family violence is an issue that is pertinent to the children spending time with the father. Indeed, when the mother entered into the consent orders in the relevant application she denied that there was any risk of harm in relation to family violence.
The Court notes that the mother does not seek to discharge the order for equal shared parental responsibility. This means that the Court must, even in this context, consider equal time or substantial and significant time, but neither of which is constituted by the mother’s proposal.
When all the above matters are taken into account, the Court cannot conclude, on the material presently before it, that it is in the best interests of the children to vary the existing orders. Accordingly, the mother’s application for interim orders contained in her application filed 18 December 2020 must be dismissed. The mother is at liberty to continue her application for final orders but she is encouraged to consider whether, having regard to the impression this Court has formed in this application, there is any basis for doing so.
The father proposed an order that within seven days the parents complete the Keeping Kids in Mind parenting program. The parents would certainly benefit from completing a program such as Keeping Kids in Mind or an equivalent, but it is impractical to suggest that it be completed within seven days, particularly at this time of year. The Court will order, however, that within six weeks both parents are enrolled in a program called, or similar to, Keeping Kids in Mind and then provide evidence of the same to the legal representative of the other parent.
The father’s Contravention Application, once filed, will remain on foot. The father would do well to consider whether he presses this application should the mother commence complying with these orders. However this is a matter entirely for him. I refer it back to the registrar for further case management.
Before concluding these reasons, I want to explain an earlier observation I made, and that is that whilst I am dismissing the mother’s application for interim orders, I am not dismissing her final application. I do so on the basis that evidence that the mother leads in any application for variation on a final basis may well be different to the evidence presently before the Court. This Court is of the view, indeed quite firmly so, that there is no basis for varying these orders on an interim basis.
The Court wishes to make it very clear to the mother that she is expected to immediately resume compliance with the orders to which she has consented. The Court has closely examined the material she has placed before the Court and has reached the conclusion that it has notwithstanding that. There are orders in place and the Court expects that these orders will be complied with.
Costs
An application for costs is made following on the orders I have made and the reasons for judgment that I have given. An application for costs is, of course, governed by section 117 of the Act, subsection (1) of which states very clearly that subject to subsection (2), each party to proceedings under this Act shall bear his or her own costs. Subsection (2) contains a number of relevant factors but I ultimately form the view these do not displace the general statement about each party paying and bearing their own costs in these proceedings. For example, the financial circumstances of the parties, such as they are known to the Court, suggest that neither of them are in a strong financial position and probably both of them wish that they could find a better way to spend what precious finances they have. Neither party seems to be in receipt of Legal Aid. There is no conduct of the parties that I am prepared to find would justify an order for costs. Despite my implied criticism of the mother, I am not suggesting that she did not have genuine beliefs about concerns for her children. What I am suggesting is that there is little basis for them when viewed in the context of the history of this case.
The proceedings were not necessitated by the failure of the party to comply with previous orders because the proceedings were, in fact, initiated by the mother herself. Yes, the mother was wholly unsuccessful in the proceedings and that is but one factor, but not in the circumstances of the case one which I am prepared to conclude tips the balance in favour of making a costs order against her.
Sometimes the making of costs order in parenting cases operates to metaphorically poison the well from which both parents must drink. To make a costs order at this stage would, I believe, be entirely counterproductive.
However, that I am concerned about a statement made by the mother’s solicitor, where he said words to the effect that his client held a genuinely held belief which she no doubt maintains. That is of concern to me, of such concern that I make the following further order. Should there be a further difficulty with the implementation of the orders made by this Court on 19 November 2020 which occurs within 90 days of today’s date, the parties have leave to relist this matter before me upon seven days’ notice.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Altobelli delivered on
23 December 2020.
Associate:
Date: 12 January 2021
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Costs
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Expert Evidence
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Remedies
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Procedural Fairness
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