Vine and Vine

[2017] FamCA 908

FAMILY COURT OF AUSTRALIA

VINE & VINE [2017] FamCA 908

FAMILY LAW – CHILDREN – Rice & Asplund argument – Spend time with – Where the parties entered a consent order in 2016 which specified the mother’s time with the subject child – Where the subject child has not spent time with the mother pursuant to the consent order – Consideration of the best interests of the child – Where the father promotes a relationship between the mother and the child – Where the mother proposes a gradual reintroduction of time – Where it is ordered that time with the subject child pursuant to the consent order is suspended and gradual time to commences between the mother and the subject child – Application upheld.

Family Law Act 1975 (Cth) ss 60CC, 62(g)

Freeman and Freeman (1987) FLC 91-857
Langmeil & Grange [2013] FamCAFC 31
Marsden v Winch [2009] 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Vine

RESPONDENT: Mr Vine

FILE NUMBER: ADC 638 of 2013

DATE DELIVERED: 10 November 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 3 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Lennon

SOLICITOR FOR THE RESPONDENT: Marilyn Lennon Solicitor

Orders

1. That paragraphs 10 and 14 of the orders made 16 August 2016 be suspended.

2. That the proceedings be adjourned to 13 December 2017 at 9.15 am.

3. That during the period of the adjournment X born … 2006 (“the child”) shall spend time with the mother each Wednesday from the conclusion of school (or 3 pm if not a school day) to 7.30 pm.

4. That the time that the child is to spend with the mother pursuant to these orders is to be taken in the absence of Mr S (“the mother’s partner”).

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 Vine & Vine 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 ADELAIDE

FILE NUMBER: ADC 638  of 2013

Ms Vine

Applicant

And

Mr Vine

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. Mr Vine (“the father”) and Ms Vine (“the mother”) are the parents of X born in 2006 (“X”), Y born in 2008 (“Y”) and Z born in 2009 (“Z”), collectively (“the children”).

2. Following three years of litigation, the parties resolved the parenting dispute in respect of the children by a consent order made 16 August 2016.

3. The parties have equal shared parental responsibility for the children, but that the father has sole parental responsibility for the education for X and the mother has sole parental responsibility with respect to the education for Y and Z.

4. Pursuant to the consent order Y and Z live with the mother and spend time with the father from the conclusion of school on Wednesday until the commencement of school on Friday in each alternate week.  X lives with the father and spends time with the mother from the conclusion of school on Wednesday until the commencement of school on Monday and in each alternate week thereafter.

5. All school holidays are shared. 

6. The mother has filed an Initiating Application on 27 July 2017 seeking as the only orders sought that X spend time with her pursuant to paragraphs 10 and 14 of the consent order.  For reasons that are clearly apparent from the mother’s affidavit filed in support, she seeks interim orders that would suspend orders 10 and 14 of the consent orders and put in place a provision for X to spend time with her on a gradually increasing basis starting with some few hours each Tuesday from the conclusion of school until 6 pm and over a period of time graduating from Tuesday to Sunday in each alternate week.

7. Other than an order that would require the father to facilitate the three children attending her wedding in early 2018, the focus of the final and interim orders centres upon X.

8. The father filed a Response on 17 August 2017.  He seeks that he have sole parental responsibility for X, that the children attend a nominated high school and that there be a significant change to the current orders to provide for X to spend time with the mother each Wednesday afternoon from the conclusion of school until 5.30 pm and for agreed periods during the school holidays.

9. The father also seeks that Y and Z live with each of the parties on a week about basis and from the time that each of them commence Year 8, Y and Z should live with the father and spend four nights a fortnight with the mother.

10. Any orders in respect of X spending time with the mother is conditional upon the mother’s partner Mr S not being present.

11. By way of interim orders, the father seeks the appointment of an Independent Children’s Lawyer (“ICL”), that the operative provisions of the consent order be suspended in relation to X and that he spends time with the mother each alternate Wednesday from the conclusion of school to 5.30 pm.

12. Whilst there is some agreement in respect of Y and Z attending the mother’s wedding, X’s attendance is conditional upon his time being supervised by the maternal grandmother.

RICE & ASPLUND ARGUMENT

1. In the decision of Langmeil & Grange [2013] FamCAFC 31, the Full Court reinformed remarks by Evatt CJ in Rice & Asplund (1979) FLC 90-725 at [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 …

2. Their Honours highlighted the mischief that can arise from endless litigation and referred to consideration given by Strauss J in Freeman and Freeman (1987) FLC 91-857 at 76,470-71:-

   Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family…

3. The Full Court in Marsden v Winch [2009] 42 Fam LR 1 clearly recognised that there will be circumstances where a significant change has occurred and a Court may need to reconsider the parenting arrangements as they affect a child or children. The Court considered that the following indicators could be brought to account:-

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

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

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

4. The filing of the Initiating Application is not opposed by the father.  The father now seeks orders which would represent a dramatic change to the provisions of the consent order.

5. Whilst there appears to be no opposition to the renewed litigation, it is necessary to consider whether in all the circumstances the “potential detriment to the child” that may result from the litigation is justified.

6. It was open to the mother to bring an Application for contravention of orders rather than an Initiating Application.

7. The mother alleges that there were difficulties with the compliance of the orders almost from the date that they were made.  The mother says that from the date of the orders she “observed that [her] relationship with [X] started to deteriorate”.

8. From as early as September 2016 the mother says that the child was resistant to spending time with her and state that he “hated her” and wanted to live with his father.

9. The parties engaged the services of a psychologist to attempt to assist in the dysregulated and oppositional behaviour of X towards his brothers and the mother.

10. Since September 2016 the mother’s time with X can be quantified in hours rather than days.

11. The mother has not spent time with the child for a number of months and there is no agreement between the parties even as to the child communicating with the mother.

12. The mother asserts that on the occasions she has had an opportunity to speak to X he is keen to spend time with her, but that he is not permitted to do so until and unless the mother agrees to certain terms and conditions as promoted by the father.

13. For his part, the father says that X is reluctant to see his mother because he feels at risk in the mother’s home, particularly in respect of any interaction with the mother’s partner Mr S.

14. The mother denies any attendant risk.

15. She does however acknowledge that her relationship with X is fractured and needs to be reinstated.  She proposes that the operative orders be suspended and that there be orders made which provide for a gradual reintroduction between the mother and X with a hope of it providing a solid foundation for the child to spend future time with the mother.

16. It is unlikely given X’s age and the current circumstances that the mother’s time with X will return to the provisions of the consent order.

17. As discussed, the mother’s application is focussed entirely upon X.  The father’s response seeks orders both by way of final and interim relief not limited to X but including Z and Y.

18. I consider that the mother has established a material change in the circumstances of X.  He is not seeing her and there appears to be no easy path forward.  Relatively intensive counselling for X has not assisted and the ability of the parties to communicate at any child-focussed level has evaporated.

19. Unless intervention by the Court occurs, it is unlikely that X will resume time with his mother.

20. It is however not controversial that the father recognises that there is an advantage to X in having a relationship with his mother and at least at this stage, it seems that the dispute has become bogged down in unnecessary discussion, introspection and points scoring.

21. The mother is prepared to concede that initially she should spend time with X for a few hours each week in the absence of her partner notwithstanding that there is no concession that he presents as a risk to the child.

22. The father agrees that X should spend time with the mother, but it is the frequency that appears to separate the parties at least at the embryonic stage of reintroduction of time with the mother.

23. Given the orders of 16 August 2016, I consider it to be a significant reduction in time for the mother to now seek only a few hours per week with the child.  It is a proper concession that she makes that the time is to be taken in the absence of her partner.

24. It would seem difficult to argue that what is being proposed by the mother is excessive, unreasonable or does not bring to account factors relevant to X’s presentation.

SHOULD AN INDEPENDENT CHILDREN’S LAWYER BE APPOINTED?

1. The father seeks an order reinstating the Independent Children’s Lawyer (“ICL”).  At this stage I consider the application to be premature. 

2. The father concedes that he does not press orders in relation to Z and Y.  Whilst he does not abandon that part of his response both by way of final and interim orders, nonetheless he is prepared to focus on factors relevant to X’s relationship with the mother.

3. The parties are agreed in relation to the principal focus of the father namely, that X should spend time with his mother in the absence of the mother’s partner.

4. It is hoped that the parties will recognise that renewed litigation against the background of the proceedings having been commenced in 2013 may not be in the children’s best interests.

5. There appears to be an opportunity for the parties to resolve their differences and focus on the needs of the children, but in particular X.  The evidence suggests that he is a troubled child and demonstrates oppositional and defiant behaviour which can be confronting and difficult to manage.

6. The mother is also prepared to continue to engage with the child’s psychologist.

7. It is reasonable to assume that the parties are able to obtain appropriate feedback from their expert of choice.

8. I do not propose to order at this stage either that there be an ICL appointed, or that the parties are put to the expenses, or the Court the effort in arranging a family report.

9. Enquiries reveal that a s 62G(2) report could not be accommodated until well into 2018.

PARENTING CONSIDERATIONS

1. At this stage I propose to do no more than suspend the relevant parts of the consent order to enable four weekly visits to take place comprising some three or four hours each Wednesday.  The matter will need to return prior to Christmas to determine what arrangements, if any, need to be considered to cover the Christmas period, but also to settle the arrangements for the children to attend the mother’s wedding in early 2018.

2. In considering the appropriate orders, I bring to account the provisions of s 60CC of the Family Law Act 1975 (Cth) both as to the primary and additional considerations.

3. The principal focus is to ensure that X has a meaningful relationship with his parents and accordingly the orders promoted by the mother and given some level of support by the father (as to time but not as to frequency) are directed towards the promotion of the child’s relationship with the mother being reinstated and fostered.

CONCLUSION

1. I propose to order that X spend time with his mother each Wednesday from the conclusion of school (or 3 pm if a non-school day) to 7.30 pm.  The time spent shall be taken in the absence of the mother’s partner and will apply during the period of the adjournment.

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

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 November 2017.

Associate: 

Date:  10 November 2017