WALLACE & WALLACE

[2019] FamCA 250

FAMILY COURT OF AUSTRALIA

WALLACE & WALLACE [2019] FamCA 250

FAMILY LAW – CHILDREN – Interim Hearing – Final parenting orders made on 14 March 2018 – Application of the rule in Rice & Asplund – Where the mother asserts insufficient change in circumstances to re-litigate – Where the Independent Children’s Lawyer does not support the position of the mother – Where the father seeks that the children’s parental responsibility and living arrangements be re-litigated – Where the father’s Response to Initiating Application summarily dismissed – Where re-litigation should be restricted to time and communication and whether it should be recommenced between the father and children – Whether it be in accordance with orders made by Berman J on 14 March 2018.

Family Law Act 1975 (Cth) s 69ZQ

Wallace & Wallace [2018] FamCA 151

APPLICANT: Ms Wallace

RESPONDENT: Mr Wallace

INDEPENDENT CHILDREN’S LAWYER: Mr Charman

FILE NUMBER: ADC 3290 of 2015

DATE DELIVERED: 18 April 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns via video link to Adelaide

JUDGMENT OF: Tree J

HEARING DATE: 8 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade

SOLICITORS FOR THE APPLICANT: Pascale Legal Barristers & Solicitors

COUNSEL FOR THE RESPONDENT: Mr Roberts

SOLICITORS FOR THE RESPONDENT: Salisbury Lawyers

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Adelta Legal

Orders

1. The father’s Response to Initiating Application filed 3 September 2018 is dismissed.

2. The father has leave to, no later than 2 May 2019 make file and serve an Amended Response to the mother’s Initiating Application restricted to detailing any final orders which he seeks in relation to the children spending time and communicating with him.

3. The father’s Application in a Case filed 9 November 2018 be listed for mention only at a time and date to be advised to the parties by the Adelaide Registry. 

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 Wallace & Wallace 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  CAIRNS

FILE NUMBER: ADC3290/2015

MS WALLACE

Applicant

And

MR WALLACE

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 14 March 2018, for reasons published on that day[1] (“the first reasons”), Berman J pronounced final parenting orders concerning the two children the subject of this litigation, being C, born in 2008 and D, born in 2011, (“the children”). In broad terms, those orders provided that the children live with Ms Wallace (“the mother”) and after a moratorium of 28 days, spend alternate weekend time, and half of school holidays (together with some special days) with Mr Wallace (“the father”).  That was almost a complete reversal of the pre-existing arrangements, which had seen the children live with the father, and only spend time with the mother on alternate weekends, and Wednesday afternoons in the “off week”.

   [1]Wallace & Wallace [2018] FamCA 151.

2. As I shall shortly detail, from the outset, far from quelling the parties’ dispute, the orders of 14 March 2018 have provided the parties with further opportunities for conflict and disputation, and indeed, as at the time of the hearing before me, the children have neither spent time nor communicated with the father since 29 June 2018.  That was pursuant to further orders of Berman J made on 28 June 2018, in substantial conformity with the interim relief sought by the mother in an Initiating Application which she had filed on 30 May 2018.  To that application, the father in due course filed a Response on 3 September 2018, in which he sought to reverse the 14 March 2018 parenting orders, such that the children would move back into his primary care, and spend time with the mother as had prevailed prior to the March 2018 orders.

3. Berman J has recused himself from dealing with the further proceedings, and the matter first came before me on 16 October 2018, at which point I was advised by the mother’s counsel that it was her intention to contend that, pursuant to the so-called rule in Rice & Asplund, there was insufficient change in circumstances since March 2018 to warrant re-litigation in relation to the appropriate parenting orders for the children.  On 17 December 2018, I ordered that matter be determined as a preliminary issue in advance of all other matters in the proceeding, and in due course the hearing of that preliminary proceeded before me on 8 March 2019, at which time I reserved my decision.

4. This is that decision and the reasons for it.

BACKGROUND FACTS

Pre 14 March 2018

1. The following facts are taken from the first reasons.

2. The father was born in 1977, and hence is presently 41 years of age.  He is a healthcare provider by occupation.  The mother was born in 1978, and hence is presently 40 years of age.  The parties were married in 2006, and separated on 24 January 2015, concluding a marriage lasting slightly in excess of eight years.

3. Post-separation appears to be a time of marked chaos between the parties.  Initially, that was because at the time of separation, the mother assaulted C, which led to an interim intervention order being made against her on that day.  Ultimately she was charged with aggravated assault of C, to which she pleaded guilty, and entered into a good behaviour bond for a period of 12 months, albeit with no conviction recorded.

4. The proceedings in this court commenced on 3 September 2015, in which the mother sought to restore her spending time with the children.  She had not spent time with them since separation, in consequence of which the children had become somewhat estranged from her, and reunification counselling was ordered on 24 May 2016.

5. On 9 November 2016, police attended upon the premises of the reunification counsellor, when the mother and children were undergoing counselling.  In front of the children, they arrested the mother. Berman J found that the father had manipulated the circumstances and arranged for the mother’s arrest there, as part of his campaign to keep the children alienated from her.

6. Also in November 2016, the father was charged with the aggravated assault of a former partner, and he became the subject of a detention order.  Since he was therefore not able to care for the children, they transitioned to the care of his parents.  After his ultimate release on bail, the father then moved in to live with his parents, and hence also the children.

7. Subsequently orders were made on 9 February 2017 affording the children supervised time with the mother, moving to unsupervised in due course.

8. On 12 May 2017 the mother was again arrested and charged with aggravated assault of C, arising from her grabbing him to prevent him from running onto the road.  Although ultimately she was released from custody and the proceedings withdrawn, she was held on remand for seven days.

9. At the time of the trial before Berman J, the mother was working in administration. By then she had re-partnered, and that relationship remained intact as at the time of the hearing before me.  On the other hand, the father has not re-partnered, and appears to still reside at a property owned by his parents at L Town.

10. Berman J made some strongly adverse findings in relation to the father.  At [316] his Honour said:

    … Moreover, I find that the father was deliberately manipulative in attempting to engineer both the children making complaint and allegation and then prompting or encouraging the police to take action against the mother.  The evidence does not support a finding that the mother presents as a risk to the children, but rather, that the father has embarked upon a concerted and at times successful campaign to disrupt the mother’s relationship with the children and to promote the falsehood that she presents as a risk. 

11. Further, at [321] his Honour found that “the paternal grandfather was also complicit in the father’s course of conduct.”  At [337] – [345] his Honour continued:

    337. I have found that the father has been manipulative of the children’s relationship with their mother and has been prepared to promote a false belief that they have been the subject of physical assault by the mother and that she presents as an ongoing risk.

    338. The father’s actions in encouraging the children to relate information concerning the mother’s allegedly aggressive conduct towards them is not in their best interests. The father further compounds the mischief created by him by encouraging [C] to be part of a secret plan to send real-time messages to the father. I accept the mother’s evidence and that of the maternal grandfather that the discovery of the mobile phones in the children’s possessions can be explained only by the father deliberately concealing them, rather than a mistake or accident.

    339. A consideration of the father’s response to [C’s] text messages is consistent with an intention to create a hysterical reaction from the child.

    340. The evidence does not support the allegations of [C] that he was the subject of assault by the mother. The evidence does not support the allegation by [D] that she was aware of the mother causing her to have a black eye at 18 months of age. Whilst it cannot be denied that the children believe that the allegations have substance and that they have been assaulted by their mother, the explanation is that the belief is erroneous, promoted by the father and with the support and complicity of the paternal grandparents.

    341. The deliberate involvement by the father of [Z Group] perpetrates the mindset of the children that their mother has been abusive towards them and that they need to be protected.

    342. The presentation of [C] as being defiant and oppositional may well be as a result of the father’s conduct rather than any adverse behaviour of the mother. [C’s] presentation may well be a manifestation of the risk that the father has created.

    343. The inability of the father to support the mother’s relationship with the children in circumstances where there is no suggestion from the single experts that there should be no relationship between them is of concern.

    344. The very fact that reunification therapy was considered necessary provides an indicator of the real harm that can be experienced by the children and an indicator of the toxic environment created by the father.

    345. The father presents as a risk to the children. The enquiry is whether the risk can be managed which is consistent with the mother’s application, or that the risk can be managed only with restrictive terms as promoted by the ICL.

12. Ultimately his Honour formed the view that the risks which the father posed to the children required a change in their primary care, and he imposed a moratorium on the children spending time or communicating with him, at the conclusion of which they should again spend time with the father.  The purpose of the moratorium was to afford “a reasonable opportunity” for the mother and children’s relationship to be restored.  Although his Honour identified that the disruption in the children’s relationship with the father and the paternal grandparents was of concern, it did not, as I read the first reasons, outweigh the risk which the father posed to them.  Amongst the reasons justifying that outcome, are the following passage of the first reasons, where Berman J said as follows:

    395. The consequences for children who progress in life with the erroneous belief that a parent has subjected them to abuse is dire. The impact on a child is as significant as it would be if the alleged abuse actually occurred.

    396. I have not found that the mother presents as a risk to the children, but rather, she has displayed considerable insight into the needs of the children and balance in her recognition of the children’s need to maintain a relationship with their father.

    397. The evidence promotes a finding that the father presents as a risk to the emotional and psychological wellbeing of the children evidenced by his preparedness to involve the children in his personal and deliberate attack on the mother.

    398. The Court has little confidence that the father now accepts that the strategy of alienating the children from the mother is not protective of their best interests.

    399. The children should remain in the primary care of the mother and spend significant time with the father. I have determined that the mother’s proposal which recognises the benefits to the children of maintaining a relationship with the father should be given greater weight than the more restrictive proposal of the ICL. There remains a risk that the ICL’s proposals may be more realistic than the idealistic approach of the mother, but it is intended that the children will gain from the more balanced and measured presentation of the mother and be able to put into better context the father’s more hysterical presentation.

13. No appeal was brought from those 14 March 2018 orders or judgment.

Post 14 March 2018

1. The 14 March 2018 orders did not make any specific arrangements for the transfer of the primary care of the children from the father to the mother.  Attempts by the mother to have the father agree to an immediate transfer did not succeed.  The mother involved the police and started upon drafting a Recovery Order.  However it appears as though the police were prepared to act without such an order, seemingly because they were concerned that the father may pose a risk of harm to the children.  A police operation to recover the children therefore commenced.  It ended with the children being physically taken by police and placed into police vehicles.  The father details the events of the night in his affidavit filed 3 September 2018 and notes that during the course of being taken by police, the children were screaming, yelling, crying and fighting aggressively with the police, such that the officers had to use considerable physical force to remove them.

2. Thereafter matters still did not proceed smoothly.  According to the mother, the father attended the children’s school at both recess and lunch on the first day of their return to school on 19 March 2018, and provided them with gifts.  After the mother was made aware of the father’s attendance, the school asked the father to leave, which he did, but there were then problems with getting C to return home with the mother.  All of this led to the children being withheld from school for some time.

3. Next the mother says that the father placed some signage in the vicinity of her home with the intention of, in effect, communicating with the children.

4. On 31 March 2018, C ran away from the mother’s home, and when ultimately located by police, made allegations against the mother, seemingly that she had again assaulted him.  Police made a decision to return C to his father.  Later that day police attended the mother’s home, at the father’s request, to undertake a welfare check of D.  Later again, the mother says the father followed her and D in their car, and when the mother pulled over, the father came up to the vehicle and was waving and blowing kisses to D.  Police ultimately attended and the father left.  Thereafter D returned to school, but it appears as though the father did not bring C to school.

5. On 6 April 2018 it was the school’s sports day.  The father and mother both attended, which resulted in the mother attending the school office, and remaining there for three hours, whilst the father was attempting to gain entry into the office.  Police were called, but the father left before they arrived.

6. On 12 April 2018 the father again attended the school in an attempt to collect D.  Police again attended.  The father ultimately left.

7. On 13 April 2018 the mother took D to school.  That was the last day of school before the school holidays, when pursuant to the orders of Berman J, D was to go into the father’s care.  The father then retained D and did not return her to the mother’s care.  The mother says that during the time that the father retained the children, he failed to facilitate any communication or other contact between them and her.  That led to the mother seeking a Recovery Order, which was made on 28 June 2018, and saw the children return to the mother’s care the following day.  Police were again involved in retrieving the children, but the mother says that the changeover was otherwise unremarkable. 

8. In addition to the Recovery Order, on 28 June 2018 Berman J made orders suspending the 14 March 2018 orders insofar as they provided for the children to spend time with the father and communicate with him.  As it transpired, with one exception I shall shortly detail, the father has not thereafter seen nor communicated with the children since they were returned the next day.  However the mother says that the father has attempted to communicate with the children through an online gaming platform. The father denies that it was he who was communicating with them via that method.  Further, the mother says that the father has attempted to access the children’s medical reports via her MyGov account, and claims that she has, on at least three occasions, observed the father’s motor vehicle parked in a car park adjacent to her home.  She also believes that a tracking device has been fitted to her car.  She gave the device to police.

9. On 13 December 2018 police contacted the mother and advised that they wished to speak with her in relation to an allegation that she had sexually abused C.  Ultimately, according to the evidence before me, which is derived from the Department of Child Protection, not the police, it appears that police have told the Department they will not be pursuing any charges against the mother, and there will be no further action taken.  Apparently police told the Department “that the disclosures and allegations made by C are likely a result of ongoing influence by [the father].”  Further, the Department reported that the police had informed them “that they have overwhelming evidence that [the father] is influencing the ongoing allegations made by the children.”

10. On 5 January 2019 the mother and D were at a shopping centre and the father approached them and spoke with D. This is the only time he has seen either child since 29 June 2018.

11. As at the time of the hearing of the preliminary issue, the children remained living with the mother, and were neither spending time nor communicating with the father, as the orders which permitted them to do so have remained suspended since 28 June 2018.

RICE & ASPLUND

1. The so-called rule in Rice & Asplund has now been considered by a number of Full Courts, although it may fairly be said that the application and operation of the rule remains somewhat opaque. Moreover, the discussion in those authorities involves large slabs of earlier judgments being recited, often in a way which is, with respect, somewhat unwieldy.  From my analysis of those cases, I venture the following as relevant principles which may either be drawn directly from them, or which otherwise logically arise:

   (a)The rule is but one manifestation of the best interests principle;

   (b)However best interests are not the only consideration relevant to the application of the rule, with other considerations including public policy issues, such as the finality of litigation, and practical matters, such as the stage of the litigation at which the rule is being considered and the nature of issues involved in the several pieces of litigation;

   (c)The rule requires there to be a sufficient change of circumstances to justify the re-litigation;

   (d)The rule can be applied at any stage of the proceedings;

   (e)The effect of the operation of the rule will vary depending upon the time of its application, or more precisely the stage of the litigation when the rule is being applied;

   (f)If the rule is considered prior to trial, it may be invoked by way of an application for summary dismissal (in which case the court is likely to proceed on the basis of taking the applicant’s case at its highest and not permitting cross-examination) or alternatively may be dealt with by way of preliminary issue (in which case cross-examination may be permitted and findings of fact made);

   (g)If the rule is raised and considered at trial, most of the evils which the rule is intended to overcome or ameliorate will have already ensued.  In considering whether it may be appropriate for the application of the rule to be determined as a preliminary point at trial, factors which may influence that decision will include the dislocation of the trial process if there is a reserved judgment, and the additional delay involved. Converse considerations may be the cost to the parties of any trial if indeed the rule’s application at the end of the trial sees re-litigation impermissible.

   (h)The rule may also be dealt with at trial by way of something akin to a no case submission, but similar considerations to the determination of the matter as a preliminary issue at trial would again arise;

   (i)Logically, the extent of revisitation of prior orders sought by an applicant will be relevant in determining the likely impact of any re-litigation on the child.  Arguably, if only a small variation of prior orders is sought, the impact on the child is likely to be less;

   (j)Likewise, the court may only permit re-litigation on one or some of the issues sought to be re-agitated by the applicant, if doing so is in the child’s best interests, or conversely, a wider scope of re-litigation is not in the child’s best interests;

   (k)Logically, it must be relevant whether or not the prior orders were made by consent, or at the end of a trial, or consequent upon an undefended hearing, and in any case, also relevant will be the circumstances by which the orders came to be made (eg if they were made at an early stage of the proceedings or after lengthy litigation);

   (l)The parties will be bound by any findings of fact actually or implicitly made in prior orders, at least to the extent that they were necessarily made to quell the controversy;

   (m)It will be a matter for the trial judge as to whether under Family Law Act s 69ZQ, evidence should be restricted only to matters post-dating the last orders, or alternatively, if leave to re-litigate is given, it might be conditional upon a limitation of issues or temporal scope of evidence;

   (n)Irrespective of the stage the litigation is at when the rule is considered, the determination remains merits based and is not a technical one.  

CONSIDERATION

1. The hearing of the preliminary issue proceeded before me without cross-examination.  To the extent that there are controversies of fact, it is therefore not possible for me to make any findings in relation to them.  Further, the father did not contend that I could not have regard to the material filed by the mother, or make any submission that I was obliged to take his evidence at its highest. 

2. However the following matters are uncontroversial:

   ·Final parenting orders were made on 14 March 2018, consequent upon a six day trial before Berman J in December 2017.  Those final orders provided for the children to live with the mother, and after a moratorium, spend time and communicate with the father;

   ·On 30 May 2018, the mother commenced these proceedings by Initiating Application, which sought final orders suspending and discharging those orders which permitted the father to spend time and communicate with the children, together with ancillary relief;

   ·On 28 June 2018, pursuant to the mother’s application for interim relief as sought in her Initiating Application, Berman J suspended the orders permitting the father to spend time and communicate with the children;

   ·Since 29 June 2018, the father has not spent time or communicated with the children.  To the extent he has seen them, it comprises his apparently accidental meeting of D at the shopping centre in January of this year; to the extent there may have been communication, it is, according to the mother, via an online gaming platform;

   ·On 3 September 2018 the father filed a Response to the mother’s Initiating Application, seeking that the children live with him, and spend specified time with the mother, and that remains his position;

   ·On 12 December 2018 the mother amended the final relief which she pursues in these proceedings to, in substance, seek a permanent suspension of the orders which provide for the father to spend time and communicate with the children;

   ·Notwithstanding the suspension of time and communication between the children and the father, C has made allegations of sexual assault against the mother, which upon investigation, have not been taken further by police.

3. There is, of course, a peculiarity in the fact that it is the mother, who commenced these proceedings, who is now seeking to assert that there is an insufficient change in circumstance to re-litigate.  However the mother’s argument is a little more subtle than it initially seems.  Particularly, she contends that, given the orders of Berman J made 28 June 2018 will stand unless they are discharged or amended, then it is not she who is presently in fact the moving party, but rather it is the father.  She says that there is no change in circumstance which would justify re-litigating the question of parental responsibility, and with whom the children should primarily live, and that it is incumbent upon the father, should he so wish, to seek to change the status quo as comprised in a combination of the 14 March and 28 June 2018 orders.  Specifically she says that the father needs to put on material in support of any such change, demonstrating that he will abide court orders, not seek to undermine them, and otherwise show that it is in the children’s best interests that they resume spending time and communicating with him.  If there are no proceedings on foot, precisely how he might do so is a little problematic, but inferentially the mother says that it is that which is the avenue forward for the father, not re-litigation generally.

4. The Independent Children's Lawyer does not support the position of the mother.  Reluctantly, he says that, so long as the re-litigation is restricted to the question of what, if any, time the children should spend with the father, and what, if any, communication they should have with him, then such is in the best interests of the children.  Whilst accepting that the children have been terribly exposed to the parental conflict, to the point of police involvement on several occasions now, the Independent Children's Lawyer does identify that the children have a relationship with the father from which they appear to derive benefit, and hence the question is how, if at all, that benefit may be obtained by them, in a way which is otherwise consistent with their best interests.

5. For his part, the father appears to say that all issues of parental responsibility for the children and their living arrangements should be re-litigated.  However it is difficult in the extreme to see, on the material, what change of circumstance since 14 March 2018 would warrant such a course.  Most of the events which have occurred post 14 March 2018 cast doubt not upon the mother, but rather the father.  Further, the allegations that have been made against the mother in recent times have not been accepted by the investigating authorities as being of any substance, and hence it appears as though no criminal prosecution of the mother for sexual assault of C is likely.  I am not satisfied that unrestricted re-litigation involving a further consideration of the allocation of parental responsibility, and with whom the children should primarily live, is in the children’s best interests, as there is no sufficient change in circumstances since 14 March 2018 to warrant it.

6. However I am satisfied that there should be an opportunity for further litigation in relation to the father’s time and communication with the children.  I do not accept that the appropriate vehicle for doing so is by way of some species of interim proceeding, principally because interim applications nigh invariably proceed without cross-examination, and without final findings of fact being made.  Here, plainly, in order to determine whether the children’s best interests lie in relation to maintaining a relationship with the father, there will need to be considerable investigation about the events which have occurred since the trial.  Particularly that is necessary in order to determine whether it is possible to fashion orders for time and communication between the children and the father, which would not see their lives in perpetual tumult, such as appears to have been the case between 14 March and 28 June 2018. 

7. I am very conscious that Berman J was satisfied that the children, at least as at 14 March 2018, would benefit from a meaningful relationship with the father, and it does not seem as though the mother presently contends to the contrary.  Rather it is the means by which that benefit can be obtained, in a way which is otherwise consistent with the best interests of the children, which needs to be re-evaluated, if only because of the apparent difficulty which the father has had in complying with the court orders, and the fact that he has now not, other than discussed above, spent time or communicated with the children for something in the order of nine months.

8. Therefore re-litigation should be restricted to the issues of time and communication between the children and the father, and carefully managed to restrict it solely to those issues.

CONCLUSION

1. It follows that I am satisfied that the father should not be permitted to litigate the matters raised by his Response to Initiating Application filed 3 September 2018.  It should be dismissed.  However I am satisfied that the parties should be permitted to further litigate in relation to the appropriate orders relating to time and communication between the children and father, and particularly whether it should be recommenced, and if so, whether it be in accordance with the orders pronounced 14 March 2018, or under some alternate regime.

2. As to that, the father has on foot an Application in a Case filed 9 November 2018 seeking the reinstatement of time with the children, and I will direct that application be listed for mention only in order that a timetable for the filing of any further material can be had.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 18 April 2019.

Associate: 

Date: 18 April 2019