Wall & Pearson
[2021] FamCA 130
•19 March 2021
FAMILY COURT OF AUSTRALIA
Wall & Pearson [2021] FamCA 130
File number(s): ADC 1693 of 2016 Judgment of: BERMAN J Date of judgment: 19 March 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Where final parenting orders were made by consent in 2019 – Where each party has one of the children in their primary care – Where the applicant travelled with the child in her care to New Zealand – Where the respondent contends the child was removed from Australia without her consent – Where the respondent complains she has not been able to spend time with the child pursuant to the final orders since the child’s return to Australia – Where the applicant seeks that the orders in relation to the children be suspended and the time the respondent spends with the child in the applicant’s care be reduced – Where the respondent opposes changes to the final orders – Where the applicant is concerned the child in the respondent’s care presents a risk to the child in the applicant’s care – Discussion of Rice & Asplund principle – Where the Court is not yet able to determine if there should be a change to the final orders – Where the Court is not satisfied the evidence supports that one of the children poses a significant risk to the other – Orders. Cases cited: Freeman & Freeman (1987) FLC 91-857
McEnearney & McEnearney (1980) FLC 90-866
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
SPS & PLS (2008) FLC 93-363
Number of paragraphs: 74 Date of hearing: 17 February 2021 Place: Adelaide Counsel for the Applicant: Mr McQuade Solicitor for the Applicant: Stanley & Co Lawyers Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Susan Litchfield Solicitors ORDERS
ADC1693 of 2016 BETWEEN: MS PEARSON
Applicant
AND: Ms Wall
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
19 MARCH 2021
THE COURT ORDERS:
1.That the interim orders as sought in the Initiating Application filed 16 October 2020 be dismissed.
2.That Y born … 2012 be placed on an Airport Watch List.
3.That Y be forthwith re-enrolled at the B School with the intention that she will attend the school as and from the commencement of the second school term in 2021.
4.That each party do all things necessary to facilitate the preparation of a family assessment report by Ms C or such other psychologist as the parties may nominate and agree at their joint and equal expense, with such report to specifically consider the separate proposals of the parties and the extent to which each of the parties’ proposals may be in the children’s best interests.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wall & Pearson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Initiating Application filed 16 October 2020, Ms Pearson (“the applicant”) filed an application seeking parenting orders in respect of X born … 2008 and Y born … 2012 (collectively “the children”).
By Response to Initiating Application filed 30 November 2020, Ms Wall (“the respondent”) opposes the orders sought by the applicant.
The applicant is the biological mother of Y. The respondent is the biological mother of X.
The parties are considered as the parents of Y and X.
The litigation in respect of the children commenced in 2016 and was resolved by consent orders being made on 8 July 2019 summarised as follows:-
(1)That the parties have equal shared parental responsibility for the children.
(2)That X live with Ms Wall.
(3)That Y live with Ms Pearson.
(4)That X spends time with Ms Pearson as and from Term 4 2020 as follows:-
(a)From the conclusion of school on Friday to the commencement of school Monday and each alternate weekend thereafter;
(b)Each Wednesday from the conclusion of school to 7.00 pm provided that at X’s election the time that occurs on each alternate Wednesday can extend to the commencement of school on the following Thursday; and
(c)At such other times as agreed.
(5)That Y spend time with Ms Wall as from Term 1 2020 as follows:-
(a)From the conclusion of school Friday to the commencement of school Monday and each alternate week thereafter; and
(b)From the conclusion of school Monday to the commencement of school on Wednesday and each intervening week thereafter.
(6)That the children spend time with each of the parties during the short term school holidays, the Christmas school holidays and on special occasions.
(7)That the parties sign all documents necessary to facilitate the issue of New Zealand and Country K passports for Y with the passports to be retained by Ms Pearson.
(8)That the children shall continue to attend and be enrolled at the B School.
(9)That X shall attend either D School or the F School for his secondary education.
(10)That the parties are restrained from enrolling Y at any secondary school without the prior written consent of the other party having first been obtained.
(11)That the parties are able to attend curricular and extra-curricular activities in respect of each of the children.
(12)That the parties exchange information in respect of medical practitioners or health practitioners for each of the children.
(13)That the parties are restrained from:-
(a)Enrolling the children in any extra-curricular activity which might impose on the other party’s time with the child without the prior written consent of the other party;
(b)Denigrating the other party in the presence of the children or allowing anyone else to do so;
(c)Discussing the Court proceedings with the children;
(d)Changing the children’s principal place of residence from the metropolitan area of Adelaide; and
(e)Travelling to any country that is not a signatory to the “Hague Convention” unless the prior written consent of the other party is first obtained.
In her Initiating Application, the applicant seeks leave to particularise the final orders that she seeks to a date after the release of a family assessment report, but on an interim basis seeks the following orders:-
(1)That paragraphs 5, 6, 7, 8, 9, 10, 12 and 13 of the final orders made on 8 July 2019 be suspended.
(2)That X live with the respondent.
(3)That Y live with the applicant.
(4)That the parties and the children communicate and spend time with each other as follows:-
(a)That X shall communicate with Y and the applicant via FaceTime each alternate day at times to be agreed between the parties and the respondent shall facilitate the same;
(b)That Y shall communicate with X and the respondent via FaceTime each alternate day at times to be agreed between the parties and the applicant shall facilitate same;
(c)That the children spend time during the day each Saturday with the parent with whom they do not live from 9.30 am until 4.00 pm, with handover to occur at the home of Mr and Mrs E, being G Street, Suburb H and the children shall be supervised by that parent at all times during handover.
(5)That the parties attend upon Ms C for the preparation of an updated Family Assessment Report.
(6)That the respondent obtain an updated Mental Health Care Plan for X from his general practitioner and to facilitate X’s attendance on a psychiatrist or psychologist as may be recommended by the general practitioner.
(7)That the applicant obtain a Mental Health Care Plan for Y and facilitate Y’s attendance upon a psychologist as recommended by her general practitioner.
(8)That the parties shall attend reportable co-parent counselling at their joint and equal expense.
(9)Upon noting that the applicant intends to reside in Town J, the applicant be permitted to enrol Y at a primary school in or around Town J in consultation with the respondent.
By her response, the respondent opposes the orders sought by the applicant and seeks that on the return of Y to Adelaide, the child shall spend time with the respondent for a period of two consecutive weeks and thereafter in accordance with paragraphs 6, 7, 8 and 10 of orders made 8 July 2019.
The respondent also seeks, that upon Y’s return to South Australia, the child’s Australian, Country K and New Zealand passports be surrendered to the Registry of the Family Court and only available to the parties upon application.
On 11 February 2021 the respondent filed an Application in a Case seeking the following orders:-
(1)That an Airport Watch order be issued for Y.
(2)That Y’s passports be delivered up to the Registry of the Family Court of Australia.
(3)That the applicant be restrained from removing Y from an area not exceeding 50 kilometres from the metropolitan area of Adelaide.
(4)That the child be forthwith re-enrolled at the B School.
(5)That an Independent Children’s Lawyer be appointed.
(6)That the applicant pay the respondent’s costs with respect to her Application in a Case.
BACKGROUND
Final orders were made on 8 July 2019 by consent.
On 25 March 2020 the applicant removed the child from the Commonwealth of Australia and travelled to New Zealand. The respondent contends that the removal was without her consent and in any event entirely inconsistent with the terms and conditions of the final orders which provided for regular time and communication between the children and with each of the parties.
The respondent became aware of Y and the applicant living in New Zealand by way of an email she received from the applicant on 26 March 2020. On 13 April 2020, the respondent received an email from the applicant requesting that the respondent consent to Y being enrolled in a school in New Zealand.
Each of the parties sought legal advice, with an ultimatum from the respondent that unless the applicant signed an undertaking that would result in Y being returned to Adelaide she would commence court proceedings for Y’s return.
An undertaking was signed by the applicant on 27 April 2020 in the following terms:-[1]
[1] Affidavit of Ms Wall filed 25 August 2020, annexure “B”.
I will undertake to the Court that:-
1. I will provide proof of the date and time of my Application for a Passport (New Zealand Passport).
2. I will provide proof of when the tickets to New Zealand were purchased and the costs of those tickets.
3. I will not break the Lease on my current residential property at L Street, Suburb H, SA.
4. I will not enrol Y (DOB … 2012) (hereinafter referred to as “Y” at the M School.
5. Y will participate in the B School On-line Learning Program while she remains in New Zealand.
6. I will return Y to Australia on the first direct flight available from City N to Adelaide.
7. Following the return of Y to Adelaide she will spend two (2) weeks with her mother, Ms Wall (hereinafter referred to as “Ms Wall”) with the two (2) weeks to commence at the end of any period of quarantine if required.
8. Following the two (2) weeks Y spends with Ms Wall, Y’s time with Ms Wall will resume as per the Orders of 8 July 2019.
There was some difficulty in the applicant being able to arrange travel from New Zealand to Adelaide by reason of COVID-19 lockdowns and the cancellation of direct flights between City N and Adelaide.
Correspondence was forwarded by the applicant’s solicitors to the respondent’s solicitors in July 2020 advising that the applicant and Y were to return to Adelaide on 2 September 2020, but that it was the applicant’s intention that she would not return to her rental premise in L Street, Suburb H, but rather, she and Y would take up residence in Town J.
Following the child’s eventual return to Adelaide on 22 December 2020, the respondent complains that she has not been able to spend time with Y pursuant to the orders and that any time spent with Y has been of short duration and only under supervision.
The respondent understands that attempts were made for Y to be enrolled and attend at P School and as at 11 February 2021 (the date of filing of the respondent’s affidavit), the applicant and the child were living in rented Airbnb accommodation at Q Street, Town J.
The difficulty for the respondent is that she does not have a motor vehicle and the distance between Adelaide and Town J is such that it would be practically difficult for the respondent to be involved with Y’s curricular and extra-curricular activities.
The applicant rejects any allegation that she deliberately travelled to New Zealand with the child with the express intention of thwarting the ability of the respondent to spend time with Y.
In summary, the applicant contends that she and Y were intending to fly to New Zealand for the second week of the April school holidays with a return date on 26 April 2020.
Whilst she had intended to travel to New Zealand on 18 April 2020, because of the availability of cheap direct flight tickets she decided to travel on 25 March 2020.
The decision to travel had already been made and the travel arrangements confirmed when the applicant became aware of the worsening COVID-19 pandemic crisis.
The applicant concedes that she did not tell the respondent of her intention to travel because she feared that the respondent would object to Y leaving Australia for New Zealand given the worsening circumstances.
The applicant now regrets that decision and accepts that there has been considerable distress caused as a result.
The applicant contends that it was always her intention to return to Adelaide and it was not for want of trying that all reasonable efforts were thwarted resulting in travel only being available in December 2020.
Y’s attendance at a local City N school was not as an enrolled student, but rather as a visitor. The decision was made by the applicant that the option of visitor status would better serve Y’s educational needs rather than extensive home-schooling.
In any event, the applicant considers that the future parenting arrangements should not be coloured by the respondent’s assertion that she behaved deceptively and with the intention of permanently removing Y from Adelaide and therefore disrupting the ability of the child spending time with the respondent.
Rather, the applicant considers that the focus should be on the future parenting arrangements which are very much affected by her observations of X’s behaviour towards Y and her.
MS PEARSON’S APPLICATION
The applicant highlights that since the final orders were made, X has shown great resistance to spending significant time with the applicant and in particular, overnight time. It has occurred only rarely and from her perspective, it could not be said that there has been compliance with the final orders.
The broad contention is that whilst the respondent pursues compliance with orders in respect of Y, she is not so concerned to ensure that X spends time with the applicant.
The observations of the applicant, if accurately stated, show X as displaying extreme distress and upset at spending time with the applicant and he has threatened to harm and kill himself in the presence of Y.
At paragraph 68 of her affidavit filed 16 October 2020, the applicant describes X’s behaviour in the following terms:-
At times, [the child’s] rage is uncontrollable, and he is inconsolable, rocking and hitting his head and ranting that he hates his life. It is my desire to help [the child], but his position of hatred towards me is so entrenched that I cannot get through to him which I carefully and sensitively try to do on each and every single occasion he spends time with me and Y.
The applicant further contends that X is obsessed with online gaming and streaming and exhibits “heightened violence and an obsession with knives killing people”.[2]
[2] Affidavit of the applicant filed 16 October 2020, paragraph 72.
The applicant sets out her observations of X’s behaviour and in particular occasions when he left the applicant’s home in the middle of the night.
The concern for the applicant is that X’s extreme behaviour had an adverse effect on Y prior to their departure to New Zealand and that she is concerned that X presents as a risk to Y if the children spend time with each other that is not supervised.
Whilst not the subject of specific argument, the response of the respondent seeks to dismiss the Initiating Application. It may be a relevant consideration to apply the principle as set out in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) per Evatt CJ at 78,905:-
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…
In Freeman & Freeman (1987) FLC 91-857 Strauss J said at 76,470 to 76,471:-
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. It is financially burdensome. … The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. … Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
Warnick J in SPS & PLS (2008) FLC 93-363 (“SPS & PLS”) observed:-
69.… In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before a court. The nature of the hearing that follows if the Rice and Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.
…
81.Thus, in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
In McEnearney & McEnearney (1980) FLC 90-866 Nygh J considered the application of what was then the recent decision in Rice & Asplund. His Honour noted at 75,498 – 75,499 that:-
Previously judges tended to view custodial disputes as primarily conflicts between parental rights and this offered a situation in which it would be easier to apply the hallowed principles of res judicata and issue estoppel. This contrasts with the much more flexible approach which is seen in more recent decisions of the Full Court such as in Rice & Asplund (supra).
Having said that I would hasten to add that the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
The Full Court in Searson & Searson (2017) FLC 93-788 (“Searson”) considered the application of the rule in Rice & Asplund and referred at [9] to the remarks by Warnick J in SPS & PLS at [10] that:-
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
And by further reference to Warnick J’s remarks in SPS & PLS their Honours held:-
12.Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.
(Footnotes omitted)
In Searson the following appears at 77,458:-
16. In Marsden & Winch the Full Court said:-
[57]. In Miller … the court posed the question:
[105]Adapting the language used by Warnick J in SPS & PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
[58].That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
(Citations omitted)
(Footnotes omitted)
At this interim stage I am not able to determine whether there is merit in the response of the respondent that there should be no change to the final orders. As discussed, the principle in Rice & Asplund does not necessarily have to be determined as a preliminary or interim matter, but may well be an issue that is capable of determination at various stages during the litigation. The best interests of a child or children is the relevant guiding consideration.
Equally, it is not necessarily the case that there should be a change to final orders simply because a party seeks to do so.
The litigation between the parties is complex and emotionally debilitating on both the parties, but in particular the children. Any change to those orders reached by consent and in circumstances where the parties were in receipt of expert legal advice should not be undertaken lightly.
I do not bring to account the dispute between the parties as to whether the retention of Y in New Zealand was part of a larger plan by the applicant to thwart the orders and therefore disrupt and interfere with the relationship between the respondent and Y.
The respondent does not seek to suspend or vary the orders that would require X to spend time with the applicant. When asked, the respondent’s counsel was clear in his response that the respondent supported X’s relationship with the applicant, although it must be recognised that X is now 13 years of age and it is probable that at some stage he will seek that weight be given to his wishes. For the moment, the respondent did not take up the opportunity to seek orders in relation to X different to those set out in the final orders.
I am not satisfied that the evidence as presented, supports a finding that X poses significant risk to Y and that this would support a suspension of the operative orders in respect of each of the children spending time with the other parent.
I give weight to the intention of the parties as evident from the detailed consent orders. The parties consented to an order that they have equal shared parental responsibility. The intention was that the personal circumstances of each of the parties would be subordinate to the overarching intention that the children would remain closely bonded and that each parent would be in a position to spend significant time with their non-biological child.
The final orders provided for injunctions that sought to restrain the very circumstances that have occurred in this case namely, that even for the most benign reasons, has seen Y removed from the jurisdiction and separated from X and the respondent for many months.
The circumstances in which the children find themselves are now further exacerbated by the intention of the respondent to reside in Town J and have Y attend P School rather than the B School.
Whilst it must be acknowledged that circumstances may change, the undertaking given by the applicant was clear in its terms that the applicant would return to her previous rental accommodation and Y would be re-enrolled in the B School. The undertaking was unequivocal in providing for a return to the final orders.
I bring to account the separate proposals of the parties. The orders sought by the respondent would see Y resuming a relationship with her and X. As far as the respondent is concerned, she also promotes a resumption of X’s time with the applicant.
The proposal of the applicant would result in a significant diminution of the time that each of the children would spend with their non-biological parent and importantly, as between each of the siblings.
Y’s continued attendance at P School would deny the respondent the ability to be involved in her curricular and extra-curricular activities as was clearly intended by the final orders.
There is a significant tyranny of distance which is a matter that the applicant was aware of. It would have been apparent to her that residing in Town J would render nugatory the ability to comply with orders.
At present, the applicant does not set out the particulars of the final orders that she seeks.
Her application in terms of final orders appears dependent upon the outcome of an eventual family report.
As is now apparent to the parties, many months are likely to pass before a report would be available.
The circumstances of the applicant do not appear to be fixed or determined. Her accommodation is not secure and she does not appear to be bound by lease or other binding arrangements.
It is assumed that pursuant to the undertaking given, the applicant has maintained Y’s enrolment in B School. As such, there is no impediment to the child transitioning back to a school that is familiar to her. She will also have the advantage of being in close proximity to the respondent and whilst X no longer attends B School, she will still maintain a relationship with him when spending time with the respondent.
It is an overarching consideration that the disruption occasioned to each of the children be resolved. The parties had a close and loving relationship with each of the children and there is clear evidence of a strong emotional attachment.
I am not satisfied that the applicant has established a credible risk posed by X to Y and there is no evidence that suggests the relationship between Y and the respondent is other than of ongoing benefit to Y.
I accept that the respondent may be optimistic in her assessment that X will spend time with the applicant according to the final orders, but as considered, the age difference between the children is such that inevitably X will be subject to different considerations as he matures.
I propose to order that each of the parties undertake and facilitate the preparation of a family assessment report as may be prepared by Ms C or such other psychologist as the parties may agree.
I have given careful consideration to the orders sought by the applicant that each of the children should undergo psychological or psychiatric assessment pursuant to a Mental Health Care Plan and that each parent should facilitate the child’s attendance on a psychiatrist or psychologist as may be recommended by their general practitioner.
The orders sought by the applicant are to be considered as an ambit claim. There is no evidence that would invite a consideration of Y’s mental health and to require the child to undergo some type of ill-defined psychological or psychiatric assessment is neither indicated nor desirable. I am not satisfied that a different approach should be adopted in respect of X. The parties are not agreed that there is a need for such intervention and in any event a Mental Health Care Plan does not in or of itself invite a consideration of risk.
It must be remembered that the applicant does not suggest that Y’s travel to New Zealand was intended to be a permanent move, or that her perception of X’s behaviour was a basis for travel.
If the applicant’s position is to be accepted, she recognises that she should not have left Australia without first advising the respondent, but that in any event, the trip to New Zealand was intended to be temporary and the retention of the child was brought about by circumstances out of her control.
No application was taken by the applicant prior to her departure that sought to discharge, vary or suspend the final orders.
For those reasons, I propose to dismiss the interim orders sought by the applicant and to make orders that place Y on an Airport Watch List and would see the applicant re-enrolling the child at the B School if it has not been maintained as and from the commencement of the second school term. It is likely this will necessitate the child and the applicant residing in closer proximity to the Adelaide CBD.
At this stage I consider it premature to order the re-appointment of an Independent Children’s Lawyer.
I make orders as appear at the commencement of these reasons.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 19 March 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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Consent
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Appeal
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Jurisdiction
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Procedural Fairness
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