Walton and Walton

[2017] FamCA 372

FAMILY COURT OF AUSTRALIA

WALTON & WALTON [2017] FamCA 372

FAMILY LAW – CHILDREN – Interlocutory application – Where the father seeks urgent interim orders – Where final orders were made six months prior – Application of Rice v Asplund (1979) FLC 90-725 – Where the mother abused alcohol resulting in hospitalisation - Where due to hospitalisation the mother could not collect the children from the father – Where the father retains the children and attempts to force change of residence – Where the father argued that the final orders were premised on the mother’s promise not to drink – Concluded the final orders contemplated the possibility of relapse by the mother – Where mechanisms were put in place to mitigate the risk if the mother does relapse including the requirement she live with the maternal grandmother – Where the maternal grandmother is perfectly willing for the arrangement to continue for as long as the mother and children need to live there – Concluded there is a compelling reason to reintroduce stability by allowing the final orders to continue – Ordered the interim and final application of the father is dismissed

Family Law Act 1975 (Cth)

Marsden v Winch (2009) 42 Fam LR 1
Rice & Asplund (1979) FCL 90-725

APPLICANT: Mr Walton

RESPONDENT: Ms Walton

INDEPENDENT CHILDREN’S LAWYER: Hannaway Lawyers

FILE NUMBER: NCC 2274 of 2016

DATE DELIVERED: 24 April 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

EX TEMPORE JUDGMENT OF: Cleary J

HEARING DATE: 24 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Graham
SOLICITOR FOR THE APPLICANT:	Tony Cox Lawyers
COUNSEL FOR THE RESPONDENT:	Not applicable
SOLICITOR FOR THE RESPONDENT:	Ms Grist appearing as agent for Maguire & McInerney Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hannaway Lawyers

Orders

1. The Initiating Application filed by the father on 3 March 2017 is dismissed on an interim and final basis.

2. The Response to Initiating Application filed by the mother on 13 April 2017 is withdrawn and dismissed on an interim and final basis.

3. The Applicant father shall by Monday 8 May 2017 provide to the Independent Children’s Lawyer and to the Court any material upon which he relies in relation to the application for costs made by the Independent Children’s Lawyer.

4. In the event the Independent Children’s Lawyer’s application for costs is relisted the Independent Children’s Lawyer is granted leave to attend Court by telephone.

THE COURT NOTES THAT

(A)The Independent Children’s Lawyer has made an application which he is compelled to make for his costs in the sum of $3,960.00. The mother is legally aided.

(B)By arrangement and agreement, the paternal family and friends will remain in the precincts of the Court for 20 minutes after the Independent Children’s Lawyer’s departure.

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 Walton & Walton 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 NEWCASTLE

FILE NUMBER: NCC 2274 of 2016

Mr Walton

Applicant

And

Ms Walton

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application by the father, Mr Walton, for urgent interim parenting orders heard in a duty list today. The interim orders sought are contained in the father’s Initiating Application.

2. That application for final orders proposes a discharge of current orders and a change of residence. The application is opposed on a final and interim basis by both the mother and the Independent Children’s Lawyer.

3. The current orders are final orders made by consent of all parties in this Court on 13 December 2016.

THE EVIDENCE

1. The documents relied on in this application are as follows.

2. The Initiating Application of the father filed 3 March 2017, together with a Notice of Risk filed 3 March 2017.

3. The Response of the mother e-filed on 13 April 2017 and a Notice of Risk, filed in court today and provided to the father prior.

4. The evidence of the father is the affidavit of the father, non-filing of family dispute resolution certificate filed 30 March 2017, an affidavit of the father sworn 13 April 2017 and an affidavit of the father filed 3 March 2017. There is also an affidavit by Ms Walton Snr, the paternal grandmother.

5. For the mother, there is her affidavit filed 13 April 2017, an affidavit of the maternal grandmother, Ms G filed 21 April 2017 and the maternal aunt, Ms I filed 21 April 2017.

6. I have also taken into account the written submissions of the Independent Children’s Lawyer, a case outline for the respondent mother, the oral submissions of all parties and the orders and reasons for judgment made on an interim basis on 18 November 2016, about one month before the final orders were made.

THE LAW

1. The decision in Rice & Asplund (1979) FLC 90-725 is a well-known authority on the approach to a party bringing a fresh application after final orders have been made.

2. Her Honour, the then Chief Justice, said in the decision in Rice & Asplund that:

   Judges should take the following steps:

   (1)To have regard to earlier orders and the material on which those orders were based.

   (2)To take into account that a Court should not lightly entertain an application to reverse an earlier custody order, noting that custody at that time was a term that referred to residence now; and

   (3)To be satisfied that there was some changed circumstance which would justify the serious step of re-visiting parenting orders, some new factor arising, or some factor that had not previously been disclosed.

3. A trial judge has discretion as to when to consider the issue of re-visiting orders on a preliminary basis, or after a fully contested hearing.

4. In this matter, the fresh application made on 3 March 2017 is made by the father approximately three months after final orders were made by consent on 13 December 2016.

5. In circumstances where the evidence of changed circumstances or new factors arising in a three month period is before the Court on this interim application for change of residence, I consider that it is appropriate to determine the issue on a preliminary basis.

6. A further decision in Marsden v Winch (2009) 42 Fam LR 1 is authority for the Court considering, in each particular case, the past circumstances and reasons, whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing, and if there is such a likelihood, the nature of the changes must be weighed against the potential detriment to the children caused by the litigation itself.

7. Small changes may not have sufficient benefit to compensate for the disruption of significant re-litigation. The latter aspect of the detriment to the children has some significance here when there was so much disruption in their lives prior to the interim orders being made in November 2016.

THE FACTS

1. In this matter, it is an agreed fact that the mother, on the weekend of 24 to 26 or 27 February 2017 abused alcohol in a way that left her not only intoxicated, but in such an anxious and frail state that she went to hospital.

2. The mother had arranged with the father on 5 February 2017 for him to collect the children from school on 24 February. He had readily agreed. She was to collect the children at the end of the weekend period.

3. It is an agreed fact that the mother lied to the father and told him she was unable to return to collect the children on 26 February due to some obstruction on the highway.

4. In fact, the likely reason was that the mother was affected by alcohol and was unable to do so. The children remained with their father, who made some inquiries around the family when it became clear that the mother was not collecting them on that day, or the next day.

5. The father made contact with the maternal grandmother, who did not feel that she could have the children returned to her in circumstances where their mother was not present, particularly as she was concerned about the emotional state of her daughter.

6. The father also made contact with the maternal aunt and her evidence is that she agreed that the children could stay with her and their other aunt until the mother was in a position to return home to the home of the maternal grandmother with the children.

7. The father decided to retain the children. It is natural that the father would have been concerned about being lied to by the mother and by the fact that she was intoxicated and anxious at a time when she should have been collecting the children and returning to her home in Region J. His preliminary thought was to deliver them back to the maternal grandmother, but after she was reluctant, he then decided to refuse the offers made by the maternal aunt.[1]  I note, to his credit, that the father had said to the maternal aunt, “[Ms Walton] is a great mum when she doesn’t drink”.

   [1] Affidavit of the maternal aunt Ms I filed 21/04/2017, pars 6 and 11

8. It is a sentiment that the father expressed before me in the interim hearing.

9. The father also decided, having retained the children that he would not return them. Included in this decision was a decision to restrict their time and communication with their mother.

10. There are text messages in evidence before the Court with the father communicating to the mother that C did not want to talk to her, that the paternal grandmother would not be replying to the mother’s emails, and the father was strongly communicating to the mother that that situation would not improve unless the mother recognised her error by conceding there should be a change of residence to him.

11. I particularly note that the father said to the mother by text:

    You can have access every second weekend and half the school holidays. We will decide about alternate Christmases.

12. But that was on the condition that the mother agreed to consent orders for a change of residence.

13. Whilst the father’s concern about the mother’s conduct might be understandable and even natural, it was not a particularly child focused stance to take. These children have already experienced being removed from New South Wales to Northern Queensland and being brought back, from missing a period of school and being exposed to bitter conflict between their parents.

14. The Family Consultant who saw the children prior to the interim hearing reflected on the fact that both children reported very low levels of happiness and security and high levels of fear.

15. It is of some significance that the recent events mirror what happened earlier in the children’s lives, and that this attempt to force a change of residence has rebounded on the children, who are the innocent victim of their parents’ conduct.

16. On behalf of the father, it was said that implicit in the final orders was a promise by the mother not to drink, and that the father was entitled to say, “I trusted you not to drink alcohol and now it’s all over”.

17. In my view, implicit in the final orders and the interim orders made one month earlier, was the possibility of relapse by the mother. The evidence is clear that the mother had struggled with her abuse of alcohol over a long period of her adult life. Indeed, that both parents had indulged in alcohol use at a very high level during the marriage.

18. The mother had ceased drinking for two and a half years around the time of her pregnancy and the early life of the younger child and then relapsed. However, she has otherwise, since final orders being made, complied with the orders, in the sense that she had sought help for herself.

19. There is a report from her psychologist. She has sought help for the children. There is a report from a child adolescent and family psychologist.[2]  She has substantially complied with the in-home monitoring device and on at least two occasions, she has failed in her attempt to remain abstinent of alcohol, but not when the children have been in her care.

    [2] Affidavit of the mother filed 13/04/2017, Annexure H

20. Both the material grandmother and the maternal aunt recounted in detail, the mother’s compliance with the in-home monitoring and their own, in a sense, informal monitoring of her by regular visiting in the case of the maternal aunt.

21. There is a reference to the principal of the school referring to the children having settled in well to H School.

22. There was a period between 6 and 12 March 2017 when there was no contact between the children and their mother and the evidence suggests that they were very well aware that the adults in the father’s household were extremely angry with the mother, if not contemptuous about her failure. The mother arranged a welfare check by the police visiting the father’s home. He reacted with considerable anger, advising the mother that the children had been scared by the attendance of the police and it would now be a matter for her to go to Court in order to be able to communicate with them.

23. The mother then, most unfortunately, spoke to the older child, explaining to him why she had arranged for the police officer to come and apologising to him.

24. Both parents have once again involved the children in their dispute in a way that has no doubt upset them and made them fearful.

CONCLUSION

1. Overall, I accept the submissions made on behalf of the Independent Children’s Lawyer that what has happened here, whilst regrettable, was in contemplation and that the orders which are extremely intrusive, especially in terms of in-house monitoring and the requirement for various kinds of therapeutic assistance, are directed at the very possibility, given the past, that the mother might relapse, and that there needed to be protective mechanisms put in place for the children.

2. The most significant protective mechanism is that the mother is required to live with her mother whilst that in-house monitoring goes on, and that has happened.

3. Importantly, the maternal grandmother is perfectly willing for the arrangement to continue for as long as the mother and children need to live there, which was her evidence on an interim basis.

4. I cannot simply assume that because the mother has relapsed with her alcohol that to remove the children from the mother’s home with the maternal grandmother into the care of the father in the paternal grandparents’ home is the appropriate and safe course.

5. If the father has complied with orders which are the basis for him having unaccompanied time with the younger child, there is no evidence of it before me. He may be deciding to wait until closer to the child’s eighth birthday, but nevertheless, there have been reasons, based on past evidence, to be concerned about the father, both with the mother, in terms of domestic violence, his own alcohol use and what he has described as outbursts, and some present restriction on him being left with the younger child alone for those kind of reasons.

6. Accordingly, the appropriate course appears to me to dismiss the Application of the father on a final and interim basis and dismiss the Response of the mother on a final and interim basis, the mother having withdrawn her Application for variation of the orders on a final and interim basis, and allow the orders which the parties consented to in December 2016 to continue to operate.

7. The fact that the children are presently living with their mother in the home of the maternal grandmother and are poised to return to their school after a period of disruption and re-enrolment at another school is a compelling reason to reintroduce stability by allowing the final orders to continue.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 April 2017.

Associate: 

Date:  31 May 2017