Walter and Walter

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALTER & WALTER

[2014] FCCA 2479

Catchwords:
FAMILY LAW – Mother seeking to re-examine parenting orders made following a lengthy trial in 2012 – father opposing – mother contemplating major forensic examination including possible multiple expert reports – whether material change in circumstances – whether childrens’ best interests served by further litigation – consideration of Rice v Asplund – application dismissed.

Legislation:
Family Law Act 1975, s.70NBA

Rice v Asplund (1979) FLC 90-725
Poisat & Poisat [2014] FamCAFC 128
Harding v Watson [2014] FamCAFC 188
Walter & Walter [2012] FMCAfam 434

Applicant:

MS WALTER

Respondent:

MR WALTER

File Number:

MLC 6449 of 2010

Judgment of:

Judge Burchardt

Hearing date:

2 September 2014

Date of Last Submission:

19 September 2014

Delivered at:

Melbourne

Delivered on:

24 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr Dixon SC

Solicitors for the Applicant:

Taussig Cherrie Fildes

Counsel for the Respondent:

Ms Snyder

Solicitors for the Respondent:

Susan Snydner

ORDERS

The application of the mother filed 29 April 2014 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Walter & Walter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 6449 of 2010

MS WALTER

Applicant

And

MR WALTER

Respondent

REASONS FOR JUDGMENT

On 29 April 2014, the applicant mother filed an initiating application in the Family Court. The application sought to discharge extant parenting orders made on 6 June 2012 and 29 May 2013 by Judge Hartnett. Although the application has been changed to an extent since the inception of the proceeding, the dispute can be identified at the present time as a Rice v Asplund dispute.
The mother seeks that the Court embark upon a wide-ranging re-examination of the parenting arrangements in respect of the three children of the relationship between the parties, namely X, born (omitted) 2000; Y, born (omitted) 2002; and Z, born (omitted) 2004. The mother says there have been material changes in circumstances sufficient to justify the re-examination of the parenting issues and the father says there have not.
For the reasons that follow, I am going to uphold the father’s Rice v Asplund objection and dismiss the application in its entirety.

The application and the materials relied upon in support of it

This is a box file. Protracted proceedings between mid-2010 and July 2012 culminated in judgment given by Judge Hartnett on 6 June 2012. That judgment followed a seven day hearing. Essentially, contrary to the recommendations of the Independent Children’s Lawyer and the family report writer, Ms D, Judge Hartnett decided that the children should live predominantly with the father and spend five nights per fortnight with the mother.
A further tranche of litigation took place in 2013 about overseas travel.
The application, as I have already indicated, seeks to set aside all parenting orders, including most particularly those made on 6 June 2012 which established the nine/five regime to which I have referred.
The mother also seeks that the extant order for equal shared parental responsibility continue but that she have “sole parental responsibility for their day-to-day care, welfare and development.”
The initiating application was, as already indicated, issued in the Family Court, notwithstanding that there had been a seven day trial before Judge Hartnett. An appeal filed by the mother against Judge Hartnett’s decision was subsequently abandoned. Indeed, the 2013 litigation about overseas travel was conducted without objection before her Honour.
The respondent father’s response filed 11 June 2014 sought the dismissal of the application and, inconsistently, that the application be transferred to the docket of Judge Hartnett.
The matter came on before Registrar Mestrovic on 13 June 2014 and the Registrar relevantly transferred the matter to the Federal Circuit Court.
The applicant filed an application in a case on 23 June 2014 seeking to review the orders made by Registrar Mestrovic. That application in a case was supported by an affidavit by the applicant’s solicitor, Ms Tynan, to which it will be necessary to return. Unsurprisingly, given the nature of the litigation history between these parties, the respondent objected to the review application.
On 15 July 2014, Cronin J delivered judgment on the review application and effectively affirmed the orders made by the Registrar. His Honour was of the view (see paragraph 40 of his Honour’s judgment) that this was a matter appropriate to be heard and determined in the Federal Circuit Court. I note that the mother, inter alia, advanced a submission characterised by his Honour at paragraph [38] as:
“The wife also submitted this will take time because of the potential need for multiple experts’ reports…”
The matter having been transferred to this Court, on 22 July 2014 the mother filed an application in a case seeking that there be a family report prepared by Ms D to deal with Y’s school refusal and alleged parental alienation and any possible results of the latter. The mother’s affidavit in support of that application runs to 93 paragraphs and 25 pages, together with numerous annexures.
The father’s responding affidavit filed 14 August 2014 runs to 63 paragraphs over 12 pages, once again with numerous annexures. The mother filed a yet further amended application in a case on 18 August 2014 in which she sought further orders about overseas travel, the children’s passports, telephone time and a minor matter relating to the children being enrolled, at least in part, in (omitted) School. A further affidavit in support from the mother runs to some 49 paragraphs over 13 pages, again with annexures.
On 28 August 2014, following a hearing on 18 August 2014, Judge Hartnett recused herself and referred the matter to me as the case management Judge for the Melbourne Registry.
I listed the matter for mention and, by consent of the parties, set a timeline for written submissions on the Rice v Asplund point raised by the father.
I have set out this somewhat extensive recitation of the more recent history of this matter because it is important to understand that even at this early stage, it is clear that if litigation continues, it will be ferociously pursued by both parties and, at least on the mother’s view of the matter, is likely to involve the possibility of multiple expert reports and a very protracted set of proceedings. This is the fourth curial determination of an aspect of the dispute between the parties even since the initiating application was lodged in the Family Court earlier this year and the affidavit material is already not insignificant in scope.

The materials relied upon to support the application

The affidavit of Ms Tynan filed 23 June 2014 commences by setting out background material as to the age of the parties and the children, the current orders and the history of the proceedings. At paragraph 27, Ms Tynan deposed, correctly in my view:
“In summary, this matter has had a long and difficult history involving several interim hearings and a bifurcated trial which took place over seven days .”
At paragraph 28, Ms Tynan refers to an affidavit sworn by the mother and annexed as JHT-1 to Ms Tynan’s affidavit, setting out the mother’s concerns. At paragraphs 28(a) to (g), Ms Tynan, in my view correctly, characterised the concerns of the mother about Y’s school attendance. At paragraphs 28(h) to (j), Ms Tynan referred to the mother’s concerns that Y and X are enmeshed with the father and have aligned with him against the mother, the father’s alleged frequent discussion of Court proceedings with the children and a concern that the mother’s relationship with Z would be damaged by alienation on the part of the father.
Ms Tynan’s affidavit suggests that the bulk of the mother’s concerns related to Y’s school attendance and in my view that is an accurate characterisation of the mother’s affidavit.
Although I note that Cronin J was not persuaded to accept the mother’s position, at paragraph 39 Ms Tynan set out reasons why the matter was complex and likely to take considerably longer than four days. They included, inter alia, the potential need for multiple experts’ reports, the potential for separation of the siblings and the other matters alleged by the mother.
The mother’s affidavit, exhibit JHT-1, consists of 93 paragraphs over 25 pages and copious annexures. I note that she is mainly “doing mainly pro bono legal work.”
The mother has a new partner, Mr B, who has lived with her since February 2013, but was making arrangements to move out of the home shortly, even though the relationship is to continue.
Under the heading, “Reason for my Interim Application - Y's School Refusal”, at paragraphs 35 and following, the mother dealt with this issue. At paragraph 36, the mother deposed:
“I have issued my current application because I am extremely concerned about the children’s welfare, and in particular, the welfare of Y who has become increasingly psychologically vulnerable, to the extent that she now regularly refuses to attend school. Her school refusal appears to be rapidly becoming entrenched. While Mr Walter and I have at least agreed that she attend the Catholic Care School Refusal Program, it is only in the last week, after Y missing five weeks of school this term that we are seeing any improvement at all. The communication between Mr Walter is so difficult and ineffective that we need urgent independent guidance as to how to help Y fully attend school consistently, and to address the underlying issues she is experiencing. We are not able to develop a joint approach. I seek an order that Ms D prepare an updated report specifically to provide recommendations on how to best address Y’s problems in the short-term. I would also like Ms D to assess the psychological well-being of the children in circumstances where Mr Walter’s enmeshment with the children, particularly with the elder two girls appears to be increasing. As a result, in my view, the children’s emotional development is compromised. They are anxious and isolated.”
At paragraph 37, the mother deposed:
“Until 2013, there had never been an instance where Y had refused to go to school. In the period immediately following separation in 2010, both Z and Y experienced some separation anxiety at the start of the school day, but always went to school. They also experienced some anxiety at the start of the school day during a short period prior to the trial in 2011, when Y was in Grade 4. On one occasion, the headmaster helped me coax Y out of the car, and she went into school.”
The affidavit went on to identify the inception of complete school refusal by Y in 2013 when she refused to attend school camp. It deposed to the fact that school refusal continued intermittently for the rest of that year. The affidavit deposed to the (unsurprising in the circumstances) difficulties in communication between the parents as to this matter and Y’s ultimate enrolment in year 7 at (omitted) School in January 2014. The affidavit deposed to Y refusing to attend on the first school day and a concerning pattern of absence and refusal to go into school thereafter.
At paragraphs 58-59, the mother deposed:
“58. In addition to the school refusal, Y has developed a recent phobia about flying. During a recent trip to (omitted) in early March, Y was terrified on take-off and landing, crying and distressed. She said she was “sorry about everything, Mum.” Y also suffers from other ongoing chronic fears, including going to some parties to which she has been invited, going upstairs by herself and sleeping by herself. I have to lie down next to her to try and settle her or she needs to have a light left on. However, her most significant fear is that something has happened or will happen to Mr Walter.
59. It is disturbing to me that Y has gone from having a strong and loving relationship with me to a situation where she appears to be becoming increasingly alienated from me. When I tell Y I love her, she cannot respond in kind. Yet, as a young child she was particularly affectionate and expressive with me. I believe that Y needs my love but that she has no licence from Mr Walter to receive it.”
The affidavit goes on to depose to a marked deterioration in Y and Z’s emotional state since service of the initiating application on 10 May 2014 (paragraph 61 of the affidavit). A number of incidents are described as giving rise to that observation.
The affidavit goes on to repeat a complaint, made numerous times during the trial itself, of the respondent father’s failure to work (see paragraph 62). It is noteworthy that the mother is seeking to regurgitate this complaint in circumstances where, on any view of the matter, it has always been at the forefront of her criticisms of the father’s behaviour.
The mother went on to complain of the possibility of a diminution in the relationship between herself and Z as a result of the father’s possible behaviour, some difficulties on X’s part at (omitted) School as a result of over-attendance by the father, and undermining of the relationship between the mother and the children by the father generally.
I note too the mother’s reference to the possible undermining of her relationship with the children in the reports of Ms D referred to at paragraphs 83 to 93 of the affidavit.
I do not propose to traverse the other materials annexed to the affidavit. They show the communications between the parents about Y’s failure to go to school and the differing attitudes that the parents have to that. I note the annexure W-4 which shows a very substantial amount of absence on Y’s part in 2014.
It is impossible not to observe the strong element of mutual accusation between the parties in the materials annexed to the affidavit more generally. Although I have taken careful note of the materials, I do not propose to traverse them in any greater detail.
The mother’s affidavit filed on 22 July 2014 is effectively a repeat of the affidavit earlier annexed to Ms Tynan’s affidavit.
The father’s affidavit in response filed 14 August 2014 deposes relevantly at paragraphs 11 and 12:
“11. That I refer to paragraph 36 of the Affidavit and agree that Y was regularly refusing to attend school and that this refusal persisted during terms 1 and terms 2 of 2014. However from the commencement of term 3, 2014, which was 15^th July 2014, Y has attended school on most days. She has often stayed all day and there has been a marked improvement in her progress as a result of her participation in a Catholic Care School Refusal Program. The therapists have given the Applicant and I specific advice on how to help Y attend school consistently and I follow that advice and it has proved very helpful. Unfortunately the Applicant does not follow the advice given by the Catholic Care School Refusal Program and continually berates Y for her failure to attend school and denigrates her including calling her names such as “ungrateful bitch”. The recommendation of the therapists has been to treat Y with a great deal of patience and quiet persuasion. The Applicant’s treatment of Y has to some extent undermined my efforts. However Y is now progressing much more satisfactorily than she has been for the early part of the 2014 school year. She is attending school regularly and has sat several tests and received satisfactory results. I am optimistic that Y has “turned the corner” and with continuing monitoring from the Catholic Care School Refusal Program and the Applicant and I following their advice, Y’s attendance at school and her progress at school will continue to improve. I oppose an order that there be a further report from any counsellor and/or from Ms D. There has been no significant change of circumstances since the final orders were made in these proceedings in 2012 and the children have just settled down after the lengthy period of litigation between the Applicant and I.
12. Y is already seeing a counsellor both at school and in the Catholic Care School Refusal Program recommended to us from the school. I do not believe it would be of benefit to Y to see yet another counsellor especially at this time when Y is particularly vulnerable. Most fortnights the Applicant and I have a session with the therapist from Catholic Care who is designated as the parent’s therapist. Unfortunately these sessions are not productive because the Applicant does not cooperate with the advice of the therapist even though the result of the School Refusal Program has been that Y has now returned to school on a more regular basis. I deny that I have an enmeshed relationship with the children or that their emotional development is compromised or that they are anxious and isolated. All three children are generally well and happy when they are in my care. They become anxious when they are placed under pressure from the Applicant and they are anxious with the recommencement of these proceedings.”
At paragraph 13, the father deposed:
“… Unfortunately Y has a history of refusing to go to school. In 2010 Y refused to go to school on one occasion when she was with the Applicant and in 2011 there were many instances when Y refused to get out of the car and go to school and there was evidence given to this effect in the proceedings in this Court in September 2011. During 2012 and 2013 Y’s school refusal at (omitted) Primary School increased. These refusals took place principally when she was with the Applicant. I agree that during terms 1 and 2 at (omitted) School in 2014 Y’s non attendance record increased but say that in term 3 her attendance has improved considerably to the point where she has been at school on most days and often stayed all day.”
The affidavit self-evidently responded in detail to all the allegations made by the mother. I have obviously had regard to the matters set out but do not propose to traverse them.
The mother’s affidavit filed 18 August 2014 says, at paragraph 2:
“According to Ms F, Head of (omitted) at (omitted) School, since the start of Term 3 on 15 July 2014, Y has been attending school on four out of five days a week.”
At paragraph 3, the affidavit continued:
“Y’s return to school appears to be completely contingent on the attendance of her best friend, Ms I. Y has developed an attachment to and reliance upon Ms I to the extent that she will refuse to attend school if Ms I is not at school.”
Paragraph 6 of the affidavit continues:
“In addition to the school refusal, there are other issues which are reflective of and signify Y’s fragile emotional and psychological state.”
The affidavit goes on to refer to the fear of flying and the like already deposed to previously.
The affidavit then goes on to seek an order that the applicant retain the children’s passports and be entitled to take the girls on overseas trips during the time spent with the applicant and her partner. I would interpolate and say quite why this is desirable when apparently Y has a phobia about flying is difficult to understand.
The affidavit goes on to traverse the allegations made by the father in his own affidavit. It is sufficient to say that it is apparent that everything is in dispute. They cannot even agree as to the extent to which Y is or is not receiving therapeutic counselling.

Characterisation of the matters now relied upon to justify proceeding with the case advanced by the applicant

In my view, as earlier indicated, Ms Tynan’s affidavit accurately describes the matters the mother wishes to agitate and the degree of emphasis given by her to them. The clear primary focus of the application is the school refusal by Y and the alleged associated other stresses and difficulties that Y is having. Sub-elements of the claim relate to alleged alienation of Y and X and the possibility of the same with Z.

The claims later put forward as to travel passports and telephone time have all the appearance, as the respondent ultimately submits, of being added on to muddy the waters.

The test in Rice v Asplund

Although self-evidently the rule in Rice v Asplund springs from the case that brought it into the legal world (In the Marriage ofRice & Asplund (1979) FLC 90-725), the clearest guidance as to what the rule implies and means, in my respectful view, is to be obtained from the judgment of Warnick J in SPS & PLS (2008) FLC 93-363. At page 82,844, his Honour observed:
“The “rule” in In the Marriage of Rice & Asplund (1978) 6 Fam LR 570 ; (1979) FLC 90-725 (Rice & Asplund) — (at least, in one of its shorter formulations) that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance — is certainly useful, if not essential. But it is not the primary principle in applications for 39 Fam LR 295 at 298 parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.”
At [48], his Honour continued:
“In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation, the court in Rice & Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) “Shorthand” statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Pt VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.”
At [50], his Honour continued:
“Rice & Asplund involved an appeal from custody orders which reversed an order made 9 months beforehand. In her reasons for judgment, Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
… 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.”
At [52], his Honour continued:
“In Bennett the Full Court, comprising Nicholson CJ, Simpson and Finn JJ, seems also to have thought that the rule in Rice & Asplund was primarily one that would be applied as a preliminary matter. That court expressed the view that while it was a matter of discretion as to whether a judge embarked upon a full hearing of a matter or determined the threshold question as to a change in circumstances, that in no way derogated from the general principle expressed in Rice & Asplund “that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances”
At [56]-[59], his Honour continued:
“[56] As seen above, in Rice & Asplund, Evatt CJ recognised that a purpose of the rule was to discourage “endless litigation”. I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.
[57] In In the Marriage of McEnearney (1980) FLC 90-866 (McEnearney), Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499):
… 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.
[58] Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
[59] If the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.”
At [77]-[79], his Honour continued:
“[77] An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA, which are:
60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
[78] Authority supports this view. Speaking of the rule in Rice & Asplund, Nygh J, with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling & Mole (1987) 11 Fam LR 974 at 976–7 ; (1987) FLC 91-856 at 76,467:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the court …
[79] Again, in F & N, Nygh J said:
Indeed it is fair to say, as I have said on several occasions, that basically in custodial matters there is only one rule, and that is that the welfare of the child is the paramount consideration. Everything else is but a reflection of that rule.
At [81], his Honour continued:
“Thus, in my view, when the threshold question described in Rice & 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.”
His Honour went on to make further remarks at [83] and following, to all of which I have had regard, but which I do not feel it necessary to set out in this judgment. The extracts I have already set out in my view sufficiently denote what his Honour had to say.
His Honour’s judgment in SPS & PLS has been the subject of approval and continues to be relied upon routinely (see for example Poisat & Poisat [2014] FamCAFC 128 at [42]-[43] per the Full Court and Harding v Watson [2014] FamCAFC 188 at [46]-[47] per Strickland J).

Has there been a material change in circumstances? The materials filed in the original proceeding

I have read (perhaps glossing over some subpoenas and other procedural papers) the entirety of the materials filed in this proceeding, save for the transcript. Doubtless I may have overlooked some matters. Nonetheless, what follows should give a sufficient indication of the relevant history.
The mother’s first affidavit filed on 16 July 2010 can be summarised as complaining that the father was the subject of mental ill health, he did not look after the children and he had never worked. These themes are still alive and well today in the mother’s materials, albeit in varying degrees.
The father’s first affidavit filed on 27 July 2010 relevantly asserts at paragraph 6 that:
“All three children are in good health, save that the two younger children suffer from asthma. All three children are progressing reasonably well at school; however Y is having some difficulties and requires additional support and assistance with her homework. They are otherwise happy and well adjusted.”
At paragraph 61, the father deposed that when the mother:
“tried to supervise their homework, she found it difficult. In particular on one occasion she lost patience with Y, who requires some special assistance, telling her that if she does not want to try, then she is “a loser” and it is not her (the wife’s) fault. Y was so distressed about this, that it took me almost 2 hours afterwards, to calm her down, and take her carefully and slowly through her homework. Once she had completed it successfully, she was very proud and happy with herself.”
The affidavit of course traversed in great detail a number of other issues in dispute between the parties.
In the mother’s affidavit filed 13 August 2010, at paragraphs 11 and 12, the mother deposed:
“11. The husband continued to act inappropriately. He would not agree to Y seeing the school psychologist as recommended by her school teacher for her high level of anxiety which the teacher was concerned could lead to depression. Further he recently took Y out of school for the sole purpose of driving around the (omitted) area so that Y could direct him to my new premises. Upon my instructions a further letter was forwarded to the husband’s solicitors dated 2 August 2010. A copy of that letter marked with the letters “W-2” is annexed hereto.
12. I remain extremely concerned that the husband continued to withhold his permission for Y to attend the school psychologist suggesting that the decision be left with Y who is only eight years old. I was also concerned about the husband’s involvement with other parents at the school. I believe that he interfered with arrangements I had made for a sleepover for one of Y’s friend at my new house which did not proceed. From comments made to me by Y, I believe that the husband has discussed the current proceedings with other parents and made negative comments to them about me. He continues to make negative comments about me to the children.”
At paragraph 16, the mother deposed:
“The children are however anxious over the uncertainty in the current care arrangements and the pressure the husband continues to put upon them by involving them in the dispute between us despite my repeated requests that he stop doing so. I have recently heard them ask their father whether they are “allowed” to stay with Mum. They act as though they need to husband’s permission to spend time with me in my new home.”
At paragraph 19, the mother deposed:
“the three children commenced at (omitted) School in (omitted) this year after we returned to Australia from (country omitted) in December last year. (omitted) School is the junior school campus for (omitted) Grammar School. Based on discussions with their teachers X and Z took some time to settle into their new school being initially quiet and reserved but they were gradually improving. The husband and I separated in June. Initially X and Z appeared to adjust quite well to the separation and the week about arrangement for their care which we had put in place. From my observations however they now appear to be suffering from the uncertainty which surrounds their current living arrangements and the disruption caused by this and the court proceedings. Y has not fared as well as her sisters. I believe that Y has been suffering from anxiety since the start of the school year in February. She often has outburst of anger and from my observations of the three children she is suffering the greatest effect of the marital breakdown and separation between her parents. Of the three children she is the one who most often makes comments to me about the arrangements for time she and her sisters are to spend with her father and me and she also has been the child most drawn into the dispute by the husband. Y’s teacher at (omitted) School recently recommended she see the school psychologist as she was concerned at Y’s high level of anxiety which she is afraid may turn into depression. I have urged the husband to agree to this but so far he has resisted the advice, saying he would discuss this with Y and that perhaps the school psychologist could observe Y in the classroom.”
At paragraph 55 of the affidavit, the mother denied the allegations made by the father about the incident where there was alleged to be difficulty with Y’s homework.
In her affidavit filed 4 March 2011 in support of the amended initiating application filed on 25 February 2011, the mother deposed at paragraph 33:
“Since our separation I have been extremely concerned at Mr Walter’s behaviour with respect to the children. Mr Walter involves the children in discussions pertaining to arrangements for their future care, he exerts pressure on them to favour him as the preferred parent and also report back to him about my activities, he discusses the court proceedings and financial matters with them drawing them into the dispute between he and I and he makes disparaging comments about me. Mr Walter tells the children how sad he is about the separation and how unhappy he is when they are not with them, making them feel guilty about being with me. The children feel responsible for looking after Mr Walter and making him feel better. Mr Walter appears motivated by a desire to punish me for the breakdown of our marriage and manipulate the emotions of the children to further this end. His behaviour has been frequent and ongoing since we separated and is affecting the children.”
At paragraph 38, the mother’s affidavit continued:
“The girls have always been happy well adjusted children and whilst I am aware that our recent separation has had an unsettling effect on them, Mr Walter’s behaviour is exacerbating their anxiety and hindering the healing process. The transition from (omitted) School to (omitted) Primary School has been particularly difficult for Y and Z. They do not want to go, they cry when I take them to school and Z has reverted to wetting the bed at night. Y is angry and acting out. I am worried about her.”
At paragraph 39, having dealt with complaints arising out of an interview with Ms D, the mother continued:
“… I was actually very concerned about Mr Walter’s behaviour in manipulating the children in this way. They constantly are put in a position of conflicted loyalty between their parents.”
At paragraph 41, the mother deposed:
“In August of last year Y’s class teacher advised me that Y appeared to have a high level of anxiety which the teacher was concerned could lead to depression. The teacher recommended that Y attend the school psychologist as soon as possible. Mr Walter refused and suggested that the decision ought be left with Y.”
At paragraph 43, the mother deposed:
“On Monday 28 February Y adamantly refused to go to school and became angry and tearful. I had to enlist the aid of the school principal’s office to coax her out of the car and then Y sat in the principal’s office all morning until she settled down enough to go to the classroom. I was very concerned and I made an urgent appointment for Y to see Ms W psychologist the following day. Y talked with Ms W for an hour and said she would like to go again. She was much calmer and more settled after meeting with Ms W. I firmly believe she needs ongoing counselling to address her current anxiety.”
In the father’s responding affidavit filed 30 March 2011, the father deposed, at paragraph 12:
“All three children are in good health, save that the two younger children suffer from asthma. All three children are progressing reasonably well at school, however, Y requires additional support and assistance with her homework. The children are otherwise happy and well adjusted at school.”
At paragraph 161.15.6, the father deposed:
“I have not experienced any of the difficulties deposed to by the wife in getting the children to attend school. On the contrary, the children are genuinely happy to attend school. I often park a few streets away when delivering them to school, and we all (including the dog) walk the last few blocks together, meeting up with other school families on the way.”
The next relevant deponent was Ms D, whose affidavit filed

31 March 2011 appends her two reports dated 26 August 2010 and

15 March 2011 respectively.
In her report dated 26 August 2010, Ms D noted at page 6 that the mother claimed that “Mr Walter is directing his feelings into ‘a real campaign to alienate me from the girls’.”
At page 12, Ms D reported X, saying:
“X was clear however that she receives love from both her parents. In relation to the current situation, X felt that it is, ‘…Y, definitely’, who is not coping: ‘It’s too much for her. She yells and screams’.”
At page 14, Ms D reports that:
“Ms Walter felt that Y ‘tries to navigate between us and make us happy’. Ms Walter said she worried about changes in Y from ‘a happy and outgoing (girl)’, to being, ‘anxious, withdrawn and unhappy’.”
I note that Ms D recommended (page 18) a shared care week about arrangement.
Turning to the report dated 15 March 2011, at page 6, I note that Ms D reported:
“Ms Walter also advised that recently she has taken Y to see her own psychologist as the child was distressed.”
On the same page, Ms D recorded:
“Ms Walter believes Mr Walter places the children under extreme and inappropriate pressure, and relies on the children to support his position. It is evident to the psychologist that personally Ms Walter finds this quite disconcerting and frustrating; as she herself feels that, at times, she is being indirectly manipulated by Mr Walter in this way.”
At page 14, Ms D reported upon Y’s circumstances and recorded:
“Reassuringly, Y perceives that she is a ‘happy’ girl.”
Notwithstanding this, at page 15, Ms D recorded:
“Ms Walter spoke in interview, and in her later telephone message, about Y’s anxiety and an angry outburst at school. She mentioned that she had subsequently taken Y to a psychologist to address these problems, and that Y seemed to have settled.”
Following the filing of the mother’s application in the case on 18 April 2011, the mother’s supporting affidavit filed 18 April 2011 deposed, at paragraph 28:
“Following our separation I was concerned about the children and believed that some therapeutic counselling would assist them. Mr Walter was resistant to involving the children in any counselling. In June of last year prior to the issuing of current proceedings I sought to engage Ms W to counsel the children to help them cope with the separation process. At that time Mr Walter was instructing Mr Peter Szabo solicitor who advised that his client did not consent to the children attending counselling.”

At paragraph 31, the mother deposed:
“On Monday 28 February Y adamantly refused to go to school and became angry and tearful. I had to enlist the aid of the school principal’s office to coax her out of the car and then Y sat in the principal’s office all morning until she settled down enough to go to the classroom.”
The husband’s responding affidavit filed on 28 April 2011 says, at paragraph 16.8:
“All three children, and particularly X who is the eldest, have experienced significant upheaval as a result of the separation. X has had pressure placed on her by the wife to align herself with the wife. In August 2010 when Ms D prepared her first report, the children had prior to that date been primarily cared for by me since their birth.”
At paragraph 16.12.4, the father said:
“The children always appear happy and secure when they are in my care.”
At paragraph 16.16, the father deposed:
“I do not know and cannot admit the conversations had between the wife and teacher when I was not present. I can say however that in my discussions with Y’s class teacher that whilst some concern was raised with respect to Y’s presentation, and how she was coping with the separation, there was no mention that Y could or may suffer from depression. I was agreeable to Y meeting with the school psychologist.”
At paragraph 16.17, the father deposed:
“The school principal has informed me that Y is a happy well adjusted child. He has suggested that, whilst he does not believe that Y needs counselling, if any student does need counselling the school facilitates the counselling.”
At paragraph 16.19, the husband deposed:
“I deny any inference that I have inappropriately discussed the proceedings with the children.”
In her next affidavit filed 16 September 2011, the mother deposed, at paragraph 31, an extract from Ms D’s report in 2011 as to X. Ms D described X’s presentation as “markedly and concerningly different from that in August 2010. The child appears to be under a great deal of pressure. She has taken on adult responsibility to find a solution and is deeply emotionally enmeshed in the adult dispute.”
I believe Mr Walter has discussed all aspects of our case with the children since these proceedings were instigated.”
At paragraph 38, the mother deposed:
“Y has had a number of physical outbursts, particularly this year. These occur after Y has been at Mr Walter’s home, either on a Friday at changeover or after the midweek contact on a Tuesday.”
Later in the same paragraph, the mother deposed:
“(Y) did not attend her school camp in the first week of September this year because of this fear. It is only this term that she does not cry when I drop her to school.”
In the father’s written submissions filed 16 February 2012, the husband raised, at page 13, the following:
“Further significant concerns in this regard are raised by the instances of distress felt by the child Y on arriving at school with her mother; as contrast to the smiling, calm and relaxed little girl who hugs her father goodbye and comes “independently…into the classroom”
At page 14 of the written submissions, at paragraphs 3, 4 and 5, the submission stated:
“3.    The court is invited to find that, at the least, the “mayhem night” is indicative of the risk that the children are exposed to in the care of the wife, and moreover, the seriously dysfunctional relationship between the children and their mother. The court is invited to find that the mother’s “matter-of-fact” dismissal of the children’s distress and her relaxed demeanour when discussing the “mayhem night” gives rise to significant concerns as to her capacity to protect the children from harm by her actions and words.
4.    The court is invited to find that in their father’s care the children are safe but more importantly, feel safe, are calm and are at peace with themselves, each other and their environment both at home and at school.
5.    The Family Reporter concludes (more than once in her oral evidence and at paragraph 98 of the 3rd report) that the relationship between the children and their mother is such that it needs professional intervention. The proposal of the ICL recommends Ms L. The court will note that Mr K, psychologist has been counselling the family for at least 6 months apparently without success and before that the mother consulted Ms W, psychologist.”
While I would have no confidence, given the enormous scale of the parties’ materials, that I have canvassed each and every matter relevant to these issues, the above, in my view, gives a reasonable overview of the sort of materials the parties have put before the Court. It now remains to be seen what Judge Hartnett made of it.

The decision of Judge Hartnett

As with all the materials in this case, the judgment of Judge Hartnett (Walter & Walter [2012] FMCAfam 434) is extensive and to seek to paraphrase it in detail is inappropriate. I will concentrate on the findings that seem to me to be of relevance to the application before me.
At page 19, her Honour dealt with the dispute about Ms D’s finding that the husband was less focused than the wife in his parenting role. Her Honour found:
“This evidence sits starkly in contrast to the factual findings of the Court. The husband never needed to seek out counselling for himself for the children in his care of them, both during the marriage and after separation, because the relationship between he and the children was not usually problematic. It was founded on consistency, familiarity, affection and an enveloping structure which was not overly rigid. At the time of interview he thought the children had no serious problems and he was not seeking to diminish their time with their mother. He was criticised for his positively expressed view of the children by Ms D but his observations of the children when with him were that they were happy, progressing well and being attended to by him without difficulty. To suggest that he did not know about the actual challenges and demands of parenting three young girls as was said by Ms D, was simply wrong. He had been parenting them since shortly after their birth. Contrary to the implied assertions of Ms D that the father did not take his parenting role seriously, in her finding that the mother did, the evidence is overwhelming in the detail provided in the husband’s affidavit sworn 29 March 2011 which I accept. He took his parenting role extremely seriously.”
I note that in paragraph 28g) on page 23, her Honour came to a firm conclusion that no further family therapy was appropriate. Her Honour said (and I refer to the whole of that subparagraph):
“... The family needs time to exist without court ordered appointments and to spend time and monies on re-establishing their separate lives to be lived in accordance with these orders. Finality may produce some improvement in the parental relationship. It would be premature and oppressive in my view to further order the parties and their children to engage in any form of therapy.”
At pages 24 and 25 of her judgment, Judge Hartnett dealt with what was described as the “mayhem night”. Her Honour found that on 30 August 2011, a very significant incident occurred between the mother and Y (which also involved X). Her Honour’s findings not only were antithetical to the version proposed by the mother, but included:
“The wife’s further evidence was that this sort of thing had happened before, where Y had angry outbursts including earlier in the year in 2011 where on two occasions Y had very violently punched her mother on the arm several times causing bruises.”
Her Honour also found at page 26, paragraph 33, based on the evidence of Ms C that Y had refused to attend school on 28 February 2011 and had been strongly resistant on 1 March 2011. Her Honour also found, at pages 26-27:
“By contrast, the entry notes in Ms C’s work program 2011 on the days Y attended school with her father were that Y was smiling, seemed calm and relaxed and hugged her father before proceeding independently to the classroom.”
Her Honour found, on page 33 in paragraph 47(b) that:
“In their father’s company the children have not had the problems that have arisen between the wife and children when with their mother which have required, and it is suggested continue to require, ongoing professional assistance. They have been calm, responsive and happy. Their father was the children’s primary caregiver until shortly prior to separation they have, on the evidence, a strong attachment to him. The father’s nurturing has been historically and presently consistent and reliable. The children are also well attached to their mother and generally happy in her care. The children love both their parents and are loved by both.”
At page 36, her Honour found that the father was better able to care for the children.

The parties written submissions

The parties have filed helpful written submissions to which I have of course had careful regard. The submissions necessarily emphasize the competing positions of the parties and matters which go to support them. Nonetheless, and with every respect to the authors, I do not need to deal with the submissions in detail as my own conclusions are clear.

Consideration

The primary thrust of the mother’s case is that Y’s school refusal represents a new and vital change in circumstances, such as to justify a re-examination of the children’s best interests. In my view, the facts asserted by the mother, when examined against the materials in this file as a whole, do not establish that proposition. I have set out, at some considerable length (although as I have indicated more than once, I do not purport to say exhaustively) the materials that touch upon Y’s insecurities and school refusal raised during the currency of this regrettably lengthy proceeding. In my view, it is obvious that Y has been anxious for a long time. It is equally obvious that that has, from time to time, manifested itself in school refusal and associated behaviours.
It is clear, of course, on any view, that Y’s school refusal has been more extreme this year than it has been before. Given that she has transitioned into a new secondary school that is scarcely surprising. Viewed objectively, however, the real issue is not the school refusal per se, but Y’s anxiety. That is something that has not changed. As the mother has herself deposed from time to time, Y’s anxiety is accentuated by various different things such as tests and the like. Even assuming in the mother’s favour, as I think I am obliged to do, that what she says is factually correct, this question of school refusal by Y, although now more accentuated in the first half of this year, does not constitute, in my view, a material change of circumstance in the sense contemplated by Rice v Asplund and the cases that have developed from it.
Further, if there is one thing that is clear, it is that the mother’s assertions that the father has been seeking to alienate the children from her have been ever-present in this proceeding. Although not necessarily articulated in quite such terms from time to time, the substance of the dispute between the parties has always involved this element. Her Honour Judge Hartnett was not persuaded of it and there is no material change in circumstances deriving therefrom.
The mother’s concerns about the enmeshment of the children with the father are likewise a matter that has, in substance, always been before the Court and nothing in that regard has changed.
The fact of the children now being at (omitted) School is a purely mechanical matter of no moment.
So far as the orders relating to passports, travel and telephone time are concerned, as earlier indicated, these have all the appearance of being tacked on at the last moment to create a further dispute. In any event and whether that is true or not, the fact is that the extant orders are perfectly adequate to deal with travel issues. There is nothing new to suggest that the mother’s application requires further consideration. Indeed, as I said earlier, it is difficult to see why the mother is so keen to travel with Y, given Y’s phobia of flying.
So far as telephone time is concerned, if that is a difficulty, it may be dealt with without any necessity for major revisitation of the extant orders. I note that no contravention application has been filed by the mother and, in my view that would be the more appropriate medium for any examination of this issue. The Court retains the power pursuant to s.70NBA of the Family Act Law Act 1975 to make any necessary adjustment to telephone time orders whether any contravention application is made out or not in any event.
Even accepting, as I must, given the trenchant observations of Warnick J referred to already, that the mother’s version of facts is made out and that of the father is not, and even accepting that I might be wrong as to whether there has been a material change of circumstances in the sense that I have mischaracterised the evidence, I would still not be minded to embark upon the sort of process that the mother seeks.
As Warnick J made clear in SPS, the overriding consideration in cases such as these are the best interests of the children. The materials as a whole show an entrenched and embittered family dispute. One only has to read the affidavits of the parents to see the strain and anxiety that proceedings impose upon the parents. It is equally clear in my view, taking the materials as a whole, that the proceedings have a very damaging effect upon the children. So much is apparent from what each of them has said from time to time. It is also self-evident as a matter of ordinary human experience.
Y, whose circumstances are at the heart of the current application, is, on any view, an anxious child struggling to cope. Further litigation between her parents involving, as the mother seeks that it does, examination by at least some, and possibly numerous, expert witnesses, is only going to make her more anxious. It cannot be in the best interests of Y or any of the children to have the anxiety of further litigation visited upon them. This is over and above those matters to do with the finality of litigation and the undesirability of the allocation of Court resources on an unending basis to litigants who are unprepared to settle, to which I have already referred.
I have considered the question of the exercise of what is necessarily a discretionary judgment. I consider it first and foremost against the best interests of the children. Weighing all the competing factors, there can be no possible doubt that it is in the children’s best interests that litigation not be reignited, recommenced and arduously prosecuted.

Conclusion

The matters the mother has raised are concerning. As stated more than once, I have to assume for these purposes that, despite some inherent probabilities in her account (and I note most particularly that she is clearly wrong in her assertion that there was no school refusal before 2013), it is possible she might make out most of what she asserts. Even if this is so, however, the mother’s unrelenting desire to litigate springs like a goliath from the pages of her materials. Much of what she has to say goes back to before Judge Hartnett’s decision. She clearly remains aggrieved by it and wishes, as expressly acknowledged in her application, to reverse it. The fact is, however, that the materials taken as a whole show that even if she is correct in her assumptions, it is preferable that this litigation not recommence. For these reasons, the application will be dismissed.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 24 November 2014

[2014] FCCA 2479

24 November 2014

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