Yard & Rodd (No. 2)
[2008] FamCA 1173
•12 December 2008
FAMILY COURT OF AUSTRALIA
| YARD & RODD (NO. 2) | [2008] FamCA 1173 |
| FAMILY LAW – CHILDREN – application of the rule in Rice v Asplund – final orders made in June 2008 – mother’s subsequent proposed relocation – continuity of child’s views – change in father’s circumstances as foreshadowed in previous hearing – no sufficient change of circumstances – application summarily dismissed FAMILY LAW – RESTRAINT OF SOLICITOR – solicitor filed an affidavit in support of her client – solicitor ceased to act – whether solicitor’s firm should also cease to act |
| Family Law Act 1975 (Cth) Legal Profession (Solicitors) Rules 2007 (ACT) |
| Rice v Asplund (1979) FLC 90-725 SPL & PLS [2008] FLC 93-363 Miller & Harrington [2008] FamCAFC 150 Marsden v Winch [2008] FamCA 1029 |
| APPLICANT: | Mr Yard |
| RESPONDENT: | Ms Rodd |
| FILE NUMBER: | CAF | 418 | of | 2006 |
| DATE DELIVERED: | 12 December 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 12 December 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gill |
| SOLICITOR FOR THE APPLICANT: | Ms Simpson |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | Ms Proctor |
Orders
The father’s application filed on 17 November 2008 is dismissed.
The other orders sought in the mother’s response filed on 8 December 2008 are withdrawn and accordingly dismissed.
The matter is removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Yard & Rodd is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAF 418 of 2006
| MR YARD |
Applicant
And
| MS RODD |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the proceedings requiring determination this morning relate to an application for final orders and interim orders filed by Mr Yard (“the father”) in relation to the two children G and H.
Preliminary issue – restraint of solicitor and firm
A preliminary issue was raised and I will make my comments and deliver a very brief judgment about the question of whether, as things have unfolded in the course of proceedings, Ms Clifford should cease to act for the father and in a more extended way, whether the firm of which she is a partner should cease to act for the father.
The Legal Profession's (Solicitors) Rules 2007 prescribe – or I suppose more particularly proscribe – in Rule 12 the situation where a practitioner is seeking to appear as an advocate when that practitioner is likely to be a witness in the proceedings.
In this case, as a result of material filed in response to the father’s affidavits, Ms Rodd (“the mother”) detailed a conversation which she reported that G had had with her about a conversation that G had had with Ms Clifford in a social (or at least not a formal) context.
In response to that affidavit, Ms Clifford filed an affidavit setting out in an extensive way the nature of the conversation that she said occurred and how it occurred and as a consequence of her thereby becoming, almost inevitably, a potential witness in any final proceedings before the Court, she withdrew as the solicitor representing the father.
The issue was then taken on behalf of the mother that not only should Ms Clifford not represent the father but neither should the firm of which she is a partner.
I indicated during the course of proceedings before me yesterday that my view was that whatever may be the final situation, it was appropriate that the firm of Dobinson Davey Clifford Simpson should remain acting for the father yesterday.
I will now give my reasons briefly, therefore, although I note from what Mr Gill, as Counsel for the father, has said to me this morning, there may be no longer term consequences.
It seems to me that the rule under the Legal Profession (Solicitors) Rules, which is of course not binding on me as such, is a rule of common and practical sense where if a solicitor (or barrister for that matter) is likely to be a witness in a case in which he or she is representing another party or a party, the legal practitioner's role as a witness and as the representative of the client becomes impossible. The conflict of interest that may or may not exist in a practical sense certainly exists in a formal sense and any independent observer would regard the involvement of such a person, both as witness and as practitioner, as inappropriate.
That is not a matter in issue before me. All sides agreed that that should be so. I note that the Legal Profession (Solicitors) Rules define a number of things. For example, the ‘firm of practitioners’ or ‘practitioner's firm’ is defined, as is the word ‘practitioner’, thereby distinguishing a practitioner from his or her firm. There is a separate definition for the word ‘associate’, although in my opinion, it does not significantly bear upon the matters before me this day.
Without going into the authorities that were presented to me in any way, it seems to me that the following is the most appropriate way of regarding situations of this sort.
First: Where a practitioner is personally and directly involved, he or she must, in accordance with the rules, withdraw from representing the party involved.
Second: So far as the firm is concerned, if there are proceedings before the Court, the solicitor’s conflict of interest may, in the opinion of the other partners in the firm, bring about a situation where there is an inability on the part of the firm of solicitors properly to fulfil its role in representing the litigant. If one of the partners to the firm is a witness then it would be unwise and in the words I used yesterday “dangerous for the firm to continue to act".
In circumstances of an interlocutory or interim nature where it is either not contemplated or is unlikely that the partner/witness will actually be involved in giving evidence before the Court or being cross-examined on that occasion, then in my opinion, practicality ought to prevail over formality and it would be appropriate if there are no suitable alternative arrangements conveniently able to be made at the time, for the firm to continue to act until at least the completion of those interim or interlocutory proceedings.
That is the basis upon which I permitted the firm of Dobinson Davey Clifford Simpson to continue to act yesterday and I have not changed my view. It seems to me to be appropriate that they should have been able to continue to so act given that the parties, at least one of the parties, had travelled some distance to be at Court. The matter was set down and there was a need for some resolution of what was to occur. It was inappropriate to find alternative representation although I note Mr Gill was able to be involved at relatively short notice. In any event I note that if the matter is to proceed, the firm of Dobinson Davey Clifford Simpson will not continue to represent the father.
Substantive issue – rice v asplund rule
The matter before the Court gives rise to a consideration of what is referred to by family lawyers as the Rice v Asplund issue or in more recent cases referred to as the rule in Rice v Asplund. All of the recent authoritative cases on the matter have commented upon the undesirability of expressing the rule in a shorthand way and I do not propose to do that, except to indicate generally that the decision in Rice v Asplund provided that it was in many cases and in fact in almost every case, inappropriate for litigation to be recommenced recently after the completion of contested litigation before the Court, or for that matter the making of final and substantive orders.
This was a matter that I dealt with recently in a decision which appears under the pseudonym of Marsden & Winch [2008] FamCA 1029. In that matter I made reference with deference and respect to the decision of Warnick J in the matter of SPS & PLS [2008] FLC 93-363. My comments in relation to that appear in paragraph 15 of my judgment and refer principally, although not exclusively, to paragraph 48 of his judgment.
Recently in Miller & Harrington [2008] FamCAFC 150 the Full Court in a reported decision also considered and approved of Warnick J's Judgment in SPS & PLS.
Their Honours in the Full Court in paragraph 74 in responding to submissions about the nature of applications for summary dismissal said as follows:
"Included among the mandatory requirements upon a Court are the obligations to: (as seen) 'decide which of the issues in the proceedings require full investigation and which may be disposed of summarily'. (s 69ZQ(1)(a)) and to 'deal with as many aspects of the matter as it can on a single occasion' (s 69ZQ(1)(g)).
The relevance of their Honours' comments is to say that it is appropriate in the right case to deal with applications that matters be disposed of summarily and it falls within the provisions of the Act for the Court to do so and in fact it is an obligation on the Court to do so if it is necessary.
That is the first of the applications and submissions made on behalf of the Respondent in these proceedings.
Their Honours, in referring to the so called rule in Rice v Asplund or the test, say further in relation to the question of change of circumstances, (and I will return to its particular significance in a moment, but I simply want to deal with their Honours' Judgment first) in paragraph 87 towards the end of the paragraph referring to Collivas & Cassimatis [2007] FMCAfam 293 at [19]:
"An applicant's material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent's material the court might be satisfied there is nothing in the point raised. The court may, as a matter of discretion determine a threshold issue without testing the evidence."
I raise the latter part of that as indicative of what I am about to undertake.
Finally, from their Honours in the Full Court in paragraph 105 I quote the following passage:
"Adapting the language used by Warnick J in SPS & PLS the question for consideration is: assuming the evidence of the mother is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?" In that case of course it was the mother seeking the new hearing not the father.
Finally in paragraph 117 their Honours say as follows:
"In the circumstances of this case, including its litigation history, and, in particular the opinion of the social worker that the '[children] have been the subject of significant litigation over a number of years and clearly want litigation in relation to themselves to cease' we conclude, again adapting the language of Warnick J in SPS & PLS that it is more powerfully in the best interests of these two particular children, in their particular circumstances, to not allow the proceedings to continue."
I am not suggesting that their Honours are thereby expressing any profound point of law or principle but rather it is illustrative of the application of the matters that I am obliged to consider at this point.
In paragraph 16 of my judgment in the matter of Marsden & Winch I quoted directly from paragraph 48 of his Honour Warnick J's judgment in SPS & PLS and I repeat it for the purposes of these proceedings. His Honour says as follows:
"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 an application as a preliminary matter. Yet, contemporaneously with that formulation the Court in Rice v 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'.
That is a distinction I interpolate which relates to the phrase “on the merits” rather than to whether or not it is appropriate to deal with things in a preliminary way. His Honour continues:
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 Part 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.”
His Honour then dealt with the matters that have been set out there in some length.
Background to this matter
In this matter I provide the following information by way of brief background given that the evidence before the Court in the hearing was heard a relatively short time ago.
The finalisation of the hearing in this matter took place on four days, on 13 and 14 December 2007 and then on 1 and 9 April 2008. The judgment was delivered on 30 April 2008. Incorporated or released to the parties at that date were draft orders of the kind that I believe were appropriate to be made. The purpose of releasing the draft orders was to enable the parties to have some input into the forms and formalities of those orders.
The parties and their lawyers took some time to finalise the terms of those draft orders and in fact the final orders were only made on 12 June 2008. I propose to incorporate those final orders as an end-note to my judgment.[i]
The father, Mr Yard, filed an application on 17 November 2008 seeking among other things, the following:
i)Equal shared parental responsibility for the two children;
ii)That the children live primarily with him and as part of the same order attend G Secondary School and J Primary School;
iii)In effect that there be no change to the changeover arrangements about the time that the children would spend between their parents, except of course that they would be mirror reversed from the present arrangements.
The affidavit filed by the father in support of his application asserted the following. I give this by way of summary and not necessarily in any way intending to express in their fullness the matters raised by the father:
i)That notwithstanding that the mother had, during the course of the finalisation of the proceedings before the Court earlier this year, stated that she would live indefinitely in T, she had now indicated (and the father set out in some length in his affidavit how he had discovered about these matters), she was going to move to W in New South Wales and proposed to enrol the boys at the Grammar School in W;
ii)Secondly the father said this move was made without consultation with him, as he asserted with some justification, as was required by the final orders made by me;
iii)He says that in particular, G’s wishes, but the boys’ wishes more generally, had if anything firmed since the time of the final hearing and that no longer was G simply expressing the wish to attend G School in Canberra but that he wanted to live with his father and his father's wife at their house in J;
iv)The fourth matter raised by the father was an incident which was asserted to have occurred on 1 May 2008 which was of course the day after the Judgment of this Court was delivered on 30 April. This incident is reported at some length and is a reflection of what G has told his father about what his mother said to him and her responses on that day.
Again without in any way attempting to deal with the particularity of the matters referred to, it revolved around a conversation between G and his mother resulting from attempts by the father to communicate with his son by telephone. The conversation included particularly abusive language on the part of the mother and the father asserts that this is indicative of a lack of emotional awareness and sensitivity on the mother's part and an inability and incapability of adequately performing her role as a mother. Again, my words, not the father’s.
v)And finally, the father asserted in his affidavit that his circumstances had also changed to the extent that he had now acquired a house and a business in J and he lived in that house with his new wife. He asserted that arrangements could be made for the boys to attend G School in the case of G and in the case of H, J Primary School anticipatorily until he was able as well to attend G School.
The matters that are set out in that affidavit require a little review before I turn to the mother's detailed responses in this way.
First, it became clear in the course of the proceedings that the mother had in fact moved, or proposed to move rather, to W as the father suspected. While the circumstances of the communication were not clear and in fact, in some respects disputed, it seems that the mother instructed Ms Proctor to send a letter to the father advising about the proposed move and Ms Proctor wrote a letter and sent it, she asserts, by facsimile transmission to the solicitors representing the father. As I indicated at an earlier point of these proceedings, I accept that that did in fact occur.
It seems that the father did not receive it, or if he did, he did not register that this represented an opportunity for consultation and indeed the letter offered little in the way of consultation. The letter was, in all practical terms, a notice that she was proposing to move and seeking, within a relatively short compass, comments about the proposed move. I would not, nor would I believe any objective observer, regard such a piece of correspondence as in any way satisfying the proposition that there had been consultation about the move.
In his helpful submissions at some length, Mr Kearney pointed out a number of facets of my earlier judgment, in particular those parts of my judgment in which I drew attention to the inability of the parents adequately to communicate and the total likelihood that they would never be able to adequately set aside their own resentment of each other in favour of something that may be of more benefit to the children. I will not repeat the matters that Mr Kearney has identified in my judgments, but I have no reason to change the views that I expressed previously.
The second matter that is referred to relates to, in particular, G’s wishes although H is involved in part. I come to deal with that more substantially in due course but it is suffice to say at this point that it is not agreed that the boys’ wishes are as the father asserts, so that the determination of whether the wishes are as they are indicated by the father, would require a hearing of the matter and not determination at a preliminary point.
The third matter relates to the 1 May incident. The circumstances in which that took place are not the subject of agreement although it is clear that there was - let me describe it in neutral terms - an unfortunate event involving particularly G on that day. However, that must be placed in some context because not only did this event happen on the day after judgment, but it happened some months before the final orders were made and in those circumstances I would have to say that it is improbable that I could place any reliance upon an assertion by the father that he regarded that incident alone as being sufficient to warrant any change of circumstances such as would justify a reopening of the hearing that had only been concluded the day before.
Finally the father's changed circumstances do not in themselves, in my opinion, even if they are precisely as he says (and I have no reason to doubt them), provide a reason in themselves for changing anything because they represent what was the likely outcome of the father's future plans at the time of the last hearing.
The father, through Mr Gill, argued eloquently that the reasons why the decision should be set aside, and I have not yet come to a consideration of the evidence, involved among other things a consideration of paragraph 56 of my judgment in the substantive proceedings. In paragraph 56 I set out the following:
"It seems therefore to come down to three things. One, in my opinion I find that the mother is better able to provide emotional and psychological support for the children. Two, [G] wants, for whatever reason, to go to [G] School and three, the children's stability would be enhanced by their remaining in [T].
Paragraph 57 reads:
"Two of these factors of course would suggest the children should remain in [T]. I therefore analyse the remaining factor to determine whether it and it alone should sufficiently outweigh the other factors; the other factor being [G’s] wishes".
I then went on to consider them at some length. The submission from Mr Gill as I understood it was that given that the judgment apparently was based upon those three things (and I do not accept that that premise is correct but leave that to one side for a moment), that two of those things were no longer relevant. First that the incident of 1 May provided evidence that the mother was not better able to provide emotional and psychological support for the children and two, that the children were no longer going to be afforded the stability of remaining in T because of the admitted intention of the mother to move to W.
Therefore he asserted that as the third was in fact a reason why the children might properly have lived with their father in the first place, there was now a situation where the events as they had unfolded were substantial because they undermined the very basis upon which the judgment had been given. That again does not do justice to the substantial and well-presented argument of Mr Gill but in essence that is the nature of the approach that he undertook.
Application of Rice v Asplund
I want to analyse some of the factors that I am obliged to take into account as a result of a consideration of the judgment of the Full Court and of Warnick J's judgment and indeed, I suppose, of my own in the matter I have referred to.
One of the factors that would justify the reopening of proceedings before this Court in relation to children would be the time between the contested hearing and the beginning of the new proceedings. If proceedings had previously been concluded by a consent order then it might be argued that the time frame might in some way be a shorter period if substantive events occurred in the meantime. However once there has been a contested hearing and the delivery of judgment it seems to me that, as their Honours have said in the cases to which I have referred, generally speaking there is an interest for the children in not having litigation immediately recommenced.
There is now research (and I make reference only in passing to that of the Honourable Richard Chisholm and Dr McIntosh)[1] about the effect that conflict has upon children and there is no doubt that in these proceedings, conflict has quite clearly had an effect upon the children as was reported in particular by some of the experts during the course of the proceedings.
[1] Jennifer McIntosh & Richard Chisholm, ‘Cautionary Notes on the Shared Care of Children in Conflicted Parental Separation’ (2008) 14(1) Journal of Family Studies 37
One of the effects of reopening these proceedings would be to continue that conflict at least in the context of the Court. That does not mean that it should not happen if it is appropriate for it to do so, but the principles upon which the original determination in Rice v Asplund were made were the undesirability of having serial litigation which necessarily involves the children in a continuation and perpetuation of conflict. In this matter there is also the factor to be considered as the time between the hearing and the judgment and now between the judgment and the making of orders in the previous hearing and now the time between those orders and these proceedings.
The second matter is the change. Obviously if there is a totally substantial change in relation to the children, for instance, at one end of the spectrum, if the parent who had the care of the children died then it is such a massive change that the passage of time is largely irrelevant. On the other hand if the time is short then generally speaking a more substantial change should be indicated before the Court would be prepared to reopen proceedings. In this matter the principal change in the circumstances, as opposed to perhaps a reflection upon the basis upon which the orders have previously been made, is the determination by the mother that she would move from T to W.
This was a matter that was contemplated in my previous judgment in the evidence before the last proceedings. However, it would be reasonable to say that at no point did the mother indicate in those proceedings, nor was it otherwise available on the evidence, that a change would be sought to be effected within months, if not weeks of the determination that I had made previously. Moreover in relation to the proposed change, in my opinion, it is fair to say that the consultation to the extent that it could be so called, was so brief and inchoate as not necessarily to represent an appropriate consultation, certainly as [consultation] was contemplated by the statements that I made in my previous judgment.
The second matter relating to change is the assertion by the father that G’s wishes had changed. This is not just about G; it is about both children. In essence, I accept that there is a difference between G’s wanting to attend G School with the consequence that he live with his father and his statement, (if the father's evidence is to be accepted - and I am not suggesting I would not) - that G has said he now wants to live with his father and his father's wife.
In my opinion this does not in itself constitute a substantive change in the nature of G’s wishes. G’s wishes were vehemently expressed in the last proceedings and I spent some time in my judgment giving a detailed consideration to the expression of those wishes in paragraphs 58 and following. There is no substantive change in what G wants. In my opinion that alone could not and would not justify a reopening of proceedings before the Court.
The third asserted change appears to be the 1 May incident and a general deterioration in the relationship between the children, (so it is asserted) and their mother. This is a matter which cannot properly be investigated or indeed determined without evidence being given and a consideration of the cross-examination of both mother and father as to what in fact has been said by the children and indeed by further involvement of the children in degrees of - and I use the word generically, not specifically - assessment, either by a Family Consultant or by some other expert. That is a factor I also need to take into account.
The third matter that influences my decision about this issue is the question of whether I should reopen or begin again, depends on a number of procedural and practical matters which impinge upon my decision. First, the matter cannot proceed at present on a final basis. I indicated to counsel yesterday morning that if everyone were agreed, the matter could proceed to finality yesterday and that I would do my best to accommodate the matter yesterday and this morning. Neither counsel was interested at that point, although Ms Clifford was in the unenviable position of knowing that she was about to leave the matter and uncertain as to what arrangements she could reasonably make for representation for the father. I am not criticising anyone for their inability to continue; I merely say that it in practical terms, the father will be obliged to change lawyers in any event.
The second element, in the procedural and other matters bearing upon my decision, is the unsatisfactory nature of all possible interim orders. I outlined to counsel and repeated subsequently in Court the fact that there appeared to be no orders which could satisfactorily deal with interim questions until the Court could make a final determination some time next year. In this regard I commented to the parties that the one thing that the parents had been able to agree upon in recent years seems to be that they did not think that the T High School was a good place for the boys to go.
Notwithstanding that was not the mother’s view expressed when she was before the Court previously, it is now agreed by both of them that this is not a good idea and accordingly imposing an injunction on an interim basis restraining the mother removing the children from T or removing herself from T or both and removing them from the school would be in fact putting the children into circumstances that neither parent thinks appropriate.
The alternative interim orders that I might make would be to place the children with their father so that they could, or at least G could, attend G School at the beginning of next year. Subsequently, if the proceedings - if they were to go ahead - were to be determined against the children staying with their father they would be taken from that school and placed, presumably, into the Grammar School at W.
The alternative is that the children be permitted, as their mother had proposed and was entitled to propose under the terms of the orders I had previously made, to attend the Grammar School at W. In subsequent proceedings, if they were to occur, if it were to be determined that the children's best interests would to be served by their living with their father, they would have to be removed from that school and moved to the G School. None of these things seem to me to be a particularly good idea or to be in the children's interests.
Finally in regard to the procedural and practical matters, the consequences for the children and the parties in the reopening of proceedings is something that would not be undertaken lightly. I have no idea what the previous proceedings cost the parties but I suspect it was a substantial sum of money and money which in general terms neither can easily afford, notwithstanding that they have relatively profitable occupations by comparison with many other members of the community. Moreover the expenditure of such money would detract from the ability of the parents to pay such money by and on behalf of the children which is of more concern to me than the others.
The fourth factor that needs to be considered in relation to changes of this sort and whether or not they should give rise to further proceedings is the desirability of certainty for the parties and the children. It was submitted by Mr Kearney and I think with some force that if in fact there were to be a reopening of proceedings then a message would be conveyed that no orders of the Court would ever be final and the children would be given leverage with both of their parents (and I make no distinction between them) to effectively hold the - and I am mixing my metaphors - the Damoclean Sword of further litigation over the parties.
Best interests of the children
I turn to a consideration of what, in my opinion, constitutes the best interests of the children. Any order I am to make in these proceedings must either be a parenting order, an order in relation to the children or an order in relation to a parenting order. The argument, being somewhat subtle though, that an order for summary dismissal is not an order about parenting but rather an order about procedure, is in my opinion, without any merit. The order is nevertheless an order in relation to a parenting order and is therefore bound by the provisions of the Act.
The first proposition that I must turn to is the question of whether there should be equal shared parental responsibility. This is indeed the application of the father in these proceedings and, in my opinion, a curious application on his part given the very firm expressions of opinion I made in my previous judgment. In my opinion unless there is a substantial change in the attitude of the parents on both sides, there is no prospect of these two parents of these children ever being able to share parental responsibility. They have no ability to communicate even by e-mail without being insulting and in practical terms it is not in the children's interest to expose them on a continuing basis to some half-baked attempt to reach agreement, notwithstanding that it would be in the children's interests to do so, let alone the parents’.
It seems impossible to contemplate that the father would have regarded what has happened since the judgment in this matter as giving rise to the proposition that this would now be in some way a good idea. If anything, if I were to accept his general submissions it is clearly an even worse idea that it was in the first place. In my opinion the circumstances as they existed in the previous proceedings and the circumstances as they exist now confirm the view that I expressed previously, that this is a matter where one parent must have sole parental responsibility. Indeed, an illustration of this is that, if the father's application were to be acceded to, notwithstanding his commitment which in many respects is commendable, notwithstanding the concept that there should be a sharing of responsibility, are the two things he seeks .
One, he seeks specific orders about the schools that the children will attend, thereby in effect saying: "Notwithstanding that for all practical purposes I would have shared responsibility, I require the Court to make this decision, not that we would make it jointly" as the first order he sought about equal shared parental responsibility would suggest.
Moreover, notwithstanding that there is a proposition of equal shared parental responsibility and Court determination of what appears to be an issue between the parties, namely the school that the children will attend, nothing is suggested by the father about what would happen or who would make the determination about what school the children would attend if for any reason the arrangements he proposes should fall through. Let me give you an example. If G Grammar School ultimately was unable to accommodate either G or H, who would make the decision about where the children would go in substitution therefor?
The factors relating to the best interests of the children include the proposition that I should consider on a primary basis the benefit to the children in having a meaningful relationship with each of their parents. Curiously this has never, in dispute between the parents in this matter. Each of them says, not only is it feasible for the children to have a meaningful relationship but also that it is a benefit for the children to have that meaningful relationship. It is not a matter of distinction between the parents; it is not a question that needs to be determined by me; it is something which is a given in this matter unlike in many others. Notwithstanding their distrust, derision of each other and the divisive nature of their relationship, they do at least maintain that particular position.
The second matter that is a primary consideration but of no direct concern to me in this matter is the question of family violence and the need to protect the children from emotional or psychological harm. When I say it is not of relevance in this matter, there is no question of any physical harm to the children either by way of neglect or by physical application of violence, or any of those factors. The assertion of the father is that the mother's conduct in her abusive language, as he recalls it, to G (and as in part she corroborates), is affecting the emotional stability of the children. That would require a hearing to determine in substance.
On the last occasion I concluded on the evidence before me as appears in paragraph 56 of the judgment to which I have previously referred, that the mother was the person who was best able to attend to the emotional and social, psychological needs of the children. What in effect the father is putting to me is that my decision about that matter was wrong, as is now shown he would suggest by the conduct of the mother. That has procedural as well as other issues associated with it to which I will return.
The other matters which I am obliged to give consideration in determining what is in the best interests of the children are set out in s 60CC as additional considerations. I will reflect on a number that are relevant and in doing so I should indicate that, in my opinion, the submissions in the document submitted to me by Mr Kearney are generally in accord with my own views about these particular sections.
The views of the children, I am obliged to take into account, There is no doubt about the strength of G’s views. I have taken those into account previously. I do not regard them as being a basis for change. I accept the fact that G is now 13, or if he is not 13 he is very close to it and in another two years G is going to be able to make up his own mind where he goes, as he is free to leave school as I understand it under the New South Wales system, at 15.
So what the parents decide may well be irrelevant and I hope that the conflict they have about him and his schooling will not mean that he leaves school and stops being what he wants to be, but rather to become a beach bum or something of this sort because he cannot make up his mind and they cannot help him to. That does not in any way, when he turns 15, affect what might be in H’s best interests and at the moment I am not able to find with any degree of particularity what H’s wishes or views might be.
The second matter in this consideration is the relationship between the children and each of the parents and other relevant people. If I accepted the father's evidence without considering the mother's evidence then the mother's relationship, particularly with G, may have become more problematic but at this stage I am unable to ascertain without a hearing that that is indeed the case. That is in effect something of a bootstraps argument, to the extent that if I have a hearing I can decide that the mother's relationship has deteriorated, therefore there will have been a major change, therefore I should give leave for the proceedings to continue or importantly, I should dismiss the application for summary dismissal.
The third matter is the willingness of each of the parents to encourage a relationship of the children with the other parent. It is almost impossible to answer this question in any meaningful way. The parents both express, and I think genuinely believe, that the children should have a proper relationship with the other parent. Are they able to encourage the children to do this? It is very difficult to say. If I look at the father's evidence itself, it is clear that he is seeking to be part of their lives remotely by telephone in a way which the mother finds, in her evidence, to be both intrusive and overbearing.
It is difficult not to feel some sympathy for the father in wanting to be part of the children's lives, yet it is he who determined that he would move away from the children in the first place, so it is really hard to say in these circumstances what is the appropriate determination about the ability of these parents to encourage a relationship with the other parent. All I can say by way of comment, and I do not need to make any determination about the evidence in relation to this matter, is that unless the parents are prepared to change their attitudes and perhaps to seek some assistance as to how they can better accommodate the needs of their children, the children will cease to have a proper relationship with one parent or the other and that is something neither of them suggests is appropriate.
The fourth matter is the effect of a change on the children. It does not really matter much in these proceedings what determination I make, there will be a change. The children will either be going to the Grammar School in W or going to G Grammar School in Canberra and there may be additional changes if in fact I determine that the matter should be heard substantively all over again. Change is going to be part of the life of these children because of the decisions of their parents and not because of anything that is directly related to them or indeed directed necessarily to their best interests.
Curiously the father raises the proposition that the changed circumstances of the children will create new practical difficulties about the time that he spends with them. I do not see this and I do not accept that the difference between W and Canberra is substantively different from the distance between T and Canberra, at least to the effect that it would in any way impinge upon the nature of the relationship that the father currently has with the children. Equally I might add, that would be the case if in fact the mother chose to live in W and the children were with the father in Canberra.
The question of the parents' capacity to provide parenting to the children is really a matter that I have already dealt with. I have dealt with it under the heading “relationship” above. I am not sure about the father's role in supporting G or not supporting G. It has been a bit difficult to work this out as to whether he is, as I am sure he sees himself, being supportive of G or whether in fact by his intrusion he is in fact creating more uncertainty in G.
It is a very difficult question and one I do not have any answers to and the father may need to get some professional help about it at some point. Certainly the capacity of the parents is not helped by the intervention in this matter of Ms Clifford and her discussions with G. I do not want to make any further comment about that but it was to say the least, unfortunate.
The children are not of the same age. Their needs are different. Their requirements are different. Those differences have been identified by those who talked to the children. H’s current requirement to repeat third class may well be a representation of his expression of the conflict between his parents. I am not qualified to make that comment I simply express it as a possibility. It indicates that H should not be the forgotten child in this process.
Another factor I am obliged to take into account is the attitude of each of the parents to their responsibilities as parents. I do not want to make any other comment. We have been down this track before and I just do not see any reason for saying it again.
Family violence and family violence orders are not relevant to my determination of these things.
Finally, the Act says, in one of the most pious and ill-considered hopes that is ever expressed in legislation, the Court should take into account the possibility that there should be no further litigation between the parties. What a quaint hope that might be in this case.
Summary and Conclusion
The summary of those issues is this. The changes as I have identified them, so far as I am able to do so with the assistance of counsel (and that is not a commentary on counsel's inadequacy but rather my own) are that there is a proposed change in the accommodation of the mother and the schooling of the children.
The second substantive change is asserted to be in the relationship with the children with their mother.
The third and fourth asserted changes are in the wishes of G (but I am not proposing to examine that further, I have already made comment on that) and the father's changed circumstances which again I do not propose to make any further comment about.
In regard to the move, in my opinion, the mother's lack of frankness in the last proceedings is deplorable. It would have been open to her to have said as she may well have done in the proceedings, and as indeed was put to her, that this was well within her contemplation and if anyone is interested I find it nigh on impossible to believe that in the short period from the judgment to the change of decision to move, that the mother was suddenly struck by some intellectual bolt of lightning that determined that living in W was going to be better for her and the children than living in T.
Having said that, my determination in the previous proceedings was clearly that the mother would be the one who would determine what school the children would go to and moreover where they would live. I did restrict and qualify that by saying: "Any change in her living arrangements should be the subject of consultation". This was a matter which arose during the previous hearing in terms of proposals by the parties at various times to live in Ireland by the father, Sydney and W and Canberra. There were various proposals where they would live.
I am not in the business of providing explanations for my previous judgment nor do I propose to do so, but it was open to anyone who had heard the evidence in the last proceedings to say that there was no guarantee the parents were going to live where they were presently living into the future and perhaps, ill-advisedly, I expressed in my orders the proposition that it would be in the children's best interests that the parents might actually talk about things that would affect them in the future.
Now unfortunately that proposition has either been disregarded by the mother or alternatively the invitation expressed in her pre-emptory letter to the father’s solicitor has not been taken up by him. Irrespective of whether or not the consultation occurred, clearly my last judgment was because the parents cannot share parental responsibility and as such determination about major matters relating to the children must rest with one of them. In those circumstances as they were in my judgment at the time, that person should be the mother.
Accordingly, the fact that the mother has chosen to move from one place to another was not beyond the scope of the previous judgment and in fact, well within it. The fact that the mother chose to do it in such an inelegant and ungracious way and without proper consultation, is not a matter of commendation but not necessarily a matter which ought to, in fact, invalidate the previous determination.
So far as the incident on 1 May is concerned and the associated apparent or asserted deterioration of matters between the boys and their mother, there has been material filed by the mother which disputes in substance a number of the matters that are asserted, admits part in form and raises at least the spectre that there is no clear determination about the extent to which that relationship has deteriorated. It suffices to say in this regard that the only way in which I could come to the conclusion that this change, if it is indeed a change, is to have a further hearing in which all of those matters could be aired and then a determination made.
That prospect involves necessarily the further evidence from each of the parents, the evidence of the children through an expert, either a Family Consultant or a retained private practitioner and the extension of the conflict for the children in circumstances where what they are asserted by one parent to have said is contradicted by the other, and leaving the children in the middle as to choose between their parents as they have been obliged to do since their parents unhappily decided that they were unable to stay together. It would prolong the conflict for the children and it would remove from the children the opportunity to get on with their lives. In my opinion, that factor and those consequences in line with what I have said previously about the matters raised in Warnick J's view of the application of the rule in Rice v Asplund is determinative, among other things, of the fact that this matter should summarily be dismissed.
In my opinion there is no sufficient change demonstrated by the mother's move. The deterioration of the children's relationship with their mother would require such investigation that, in my opinion, it would operate against the best interests of the children which must be the overriding criterion. The other matters raised do not, in my opinion, justify a finding that there has been sufficient change. Even if I were to accept the father's evidence in its fullest, and I have deliberately framed my judgment by reference primarily to his evidence so that I could proceed on that basis, in my opinion, I should make the orders sought by the respondent, namely that the father's application be dismissed.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks
Associate:
Date: 3 February 2009
End note 1
[i] Orders
Children's Orders
1.The mother will have sole parental responsibility for the children, G, born … October 19995 and H, born … February 2000.
2.The mother will consult with and include the father in all major long-term decisions regarding the children's welfare, including health, education and school activities and extra-curricular activities.
3.The mother will provide to the father copies of all school reports about the children and information relating to their health and extra-curricular activities.
4.The children will live with the mother in T unless and until the mother in consultation with the father decides otherwise.
5.The children will spend time at the father's home in Canberra at the following times:
a.On each alternate weekend during term time from 6.00pm Friday until 6.00pm Sunday (or 6.00pm Monday if Monday is a public holiday);
b.If the children are with the father in the last week of any school holidays as hereafter provided, they will return for the weekend with their father on the second Friday after the commencement of the Term. Otherwise their weekend time will commence on the first Friday of the school term;
c.The whole of the Term 3 school holiday periods commencing at 6.00pm on the last day of school and concluding at 6.00pm on the night before school resumes;
d.One half of the Term 1, Term 2 and Term 4 holidays in each year, being the first half of the holidays in odd numbered years and the second half of each such holiday periods in even numbered years. For the purpose of this Order, the first half of the school holiday period will commence at 6.00pm on the last day of school and conclude at 6.00pm on the middle day of the holidays and the second half shall commence at 6.00pm on the middle day of holidays and conclude at 6.00pm on the night before school resumes;
e.If Easter falls outside of the Term 1 school holiday periods the children shall be in the care of the father (if Easter Saturday and Easter Sunday coincide with the periods that the children would otherwise be in the father's care pursuant to Order 5(a) above) from 6.00pm on Easter Thursday until 6.00pm Easter Monday.
6.For the purpose of the above Orders, changeovers shall occur at the J Park and the mother shall deliver the children to the father for collection at the Park at the commencement of the specified period and the father shall return the children to the mother at the Park at the conclusion of the specified period.
7.These arrangements shall apply unless the parties agree otherwise.
8.The parties will at all times keep each other informed of their current telephone, email and home address.
Property Orders:
9.The husband and wife do all things to bring about an equal division of their assets and superannuation (subject to the adjustment payable by the wife in relation to the debt owed to M Pty Ltd as set out below). To facilitate the division of the assets the following arrangements occur as set out below.
10.The wife pay to the husband by way of Bank Cheque the sum of $211,400 by way of property settlement within 30 days of the date of these Orders.
11.Contemporaneously with the payment referred to in Order 10 above, the husband do all things and sign all documents necessary to cause to be transferred to the wife, at the expense of the wife, the whole of his right title and interest in the property at T in the State of New South Wales.
12.Within 30 days of the date of these Orders, the husband and wife do all things necessary to instruct Mr J of B Pty Ltd to liquidate the parties joint BTQ Asset Link Investment No. … and to cause the net proceeds to be distributed equally to the husband and wife.
13.The husband and wife do all things necessary to close the UK HSBC Bank Account and the Australian Teachers Credit Union Account in the joint names of the parties and cause the funds to be distributed equally to the husband and wife.
14.The husband and wife do all things and sign such authorities and documents necessary to direct Great Southern Pty Ltd to cause their investments held by them in Great Southern Pty Ltd to be distributed as follows, (noting that these investments do not necessarily have a current realisable value):
a.To cause the investment … (Western Australia) in the joint names of the parties to be divided equally between them;
b.To cause the investment … (Victoria 1) in the joint names of the parties to be divided equally between them;
c.To cause the investment … (Victoria 2) in the joint names of the parties to be divided equally between them and the parties shall be equally liable for any outstanding insurance premiums in relation to this investment;.
d.The husband retain sole ownership of the investment … (Western Australia 2) in his sole name and shall be solely liable for the debt in his sole name to Great Southern Pty Ltd …;
e.The wife have the sole beneficial ownership of the investment … (Western Australia 3) in her sole name and be solely liable for the debt in her sole name to Great Southern Pty Ltd.
15.The husband and wife forthwith in their capacity as directors of C Pty Limited shall do all things necessary to cause the long service and annual leave entitlements of the employees of C Centre at T to be calculated as at date of these Orders with the figure to be agreed between the parties or in default of agreement, by the manager, and the parties shall cause the sum of (about) $3,000 to be paid from Account no. …4 (referred to below) into the Westpac Maxi I Direct Account … in the name of C Centre and equally (personally) or from the joint account pay such further amount as is necessary to bring the funds standing to the credit of the account to an amount sufficient to cover the total accrued long service and annual leave entitlements of the staff as at the date of these orders. In the event that the funds standing to the credit of that account exceed the total accrued long service leave and annual leave entitlements of the staff as at the date of these Orders the balance remaining shall be dealt with in accordance with Order 17.
16.Within 7 days the husband will obtain a quotation from tradesmen for repainting the business premises and recarpeting the parts of the flooring necessary to make good the premises following termination of the lease. The parties will then agree either to accept the quotation obtained by the husband or that (previously) obtained by the wife. The parties shall engage the agreed tradesmen to carry the works and pay the invoices for the works within 7 days of completion of the work from account no. …4 (referred to below).
17.Subject to Orders 15 and 16 above, that within 7 days the husband and wife in their capacity as directors of C Pty Ltd shall do all things necessary to cause the proceeds standing to the credit of any account conducted by that company to be equally divided between the parties noting that the accounts include the following:
a.C Pty Ltd Account No. …, credit balance as at 30 March 2008 of $31,223.80;
b.Long Service Leave Account No. …, balance as at 30 March 2008 of $883.28;
c.CMC Maxi I Direct Account. No. …, balance as at 30 March 2008 of $111,744.20;
d.Long Service Leave Maxi I Direct Account, No. …, balance as at 30 March 2008 of $29,540.12.
18.The husband and wife repay to M Pty Ltd the following debts owed by the husband and wife individually to the said company and to facilitate this order:
a.The husband shall pay to M Pty Ltd the sum of $123,364 within 30 days of the date of these Orders;
b.The wife shall pay to M Pty Ltd the sum of $138,000 within 30 days of the date of these Orders.
19.Forthwith upon payment of the sums referred to in 18(a) and 18(b) above, the husband and wife in their capacity as directors and shareholders of M Pty Limited shall cause the following liabilities of M Pty Ltd to be paid forthwith:
a.Payment of the debt owed to Y Pty Ltd in the sum of $228,137;
b.Payment of the amount owed by M Pty Ltd to Westpac Bank in respect of the Overdraft Account including accumulated interest and late payment fees;
c.Payment of accounting fees owing to P Pty Ltd in relation to work undertaken by that firm in respect of M Pty Ltd;
d.Except as otherwise provided for in these Orders the husband and wife will equally pay to M Pty Limited a half share of any liabilities including tax liabilities, howsoever and whenever arising in relation to M Pty Ltd. The husband shall pay half of any tax refunds received by the said company after the date of any payments made by the husband and wife pursuant to this order.
20.The husband and wife in their capacity as directors and shareholders of M Pty Ltd shall:
a.Forthwith cause the accountants of M Pty Limited to adjust (if required) the loan accounts of the husband and wife in that company as may be required to reflect the husband's loan account is agreed between the parties at $123,364 and the wife's loan account is agreed between the parties at $138,000 as at the date of these orders;
b.Cause M Pty Ltd to transfer its shares in C Pty Ltd to the wife contemporaneously with payment by the wife to the husband or his nominee company, the sum of $20,200, noting that Order 19 above shall be implemented prior to the said transfer.
21.Contemporaneously with the transfer referred to in Order 20(b) the husband forthwith transfer to the wife or her nominee his shareholding interest in C Pty Ltd.
22.Upon compliance with Orders above, the wife shall transfer to the husband or his nominee, her shares in M Pty Ltd and resign from all positions in said company.
Superannuation
23.In accordance with section 90MT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of the husband from his interest in the M Superannuation Fund the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $6,597.66 and there is a corresponding reduction in the entitlement the husband would have had but for these Orders.
24.The operative time for Order 23 is 30 June 2006.
25.The wife forthwith shall do all such acts and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 for the transfer of the wife's transferable benefit from the M Superannuation Fund to a regulated fund of the wife's choosing.
26.The husband forthwith shall do all such acts and sign all such documents as may be necessary, including but not limited to, exercising his request pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 for the transfer of the husband's transferable benefit from the M Superannuation Fund to a regulated fund of the husband's choosing.
27.Following the receipt by the Trustees of the elections made by the husband and wife as contemplated by Order 25 & 26 above, the husband and wife in their capacities as Trustees of the M Superannuation Fund shall cause a meeting to be held in accordance with the rules of the Superannuation Fund Trust Deed, with the purpose of that meeting being:
a.To note receipt of the request by the wife to rollover her remaining benefit in the M Superannuation Fund to the wife's new superannuation fund;
b.To authorise the transfer of the transferable benefits to the wife's new superannuation fund;
c.To note receipt of the request by the husband to rollover his benefit in the M Superannuation Fund to the husband's new superannuation fund;
d.To authorise the transfer of the transferable benefits to the husband's new superannuation fund;
e.To resolve that the M Superannuation Fund be wound up as soon as practicable and to engage the superannuation fund accountants to do all things required to wind up the fund and the costs and expenses associated with the winding up will be treated as a liability of the M Superannuation Fund.
28.Contemporaneously with the first handover of the children by the wife to the husband at the J Park following the making of these orders, the wife deliver up to the husband the following items and things:
a.All photographs in the wife’s possession identified by the husband as owned by the husband prior to marriage;
b.All books in the wife’s possession identified by the husband as owned by the husband prior to marriage;
c.All other personal effects the wife’s possession identified by the husband as the husband’s including his badge collection.
29.Except as otherwise provided in these orders, the husband and the wife are each entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively, save that the husband will pay to the wife child support arrears in the sum of $10,000 which sum may be deducted by the wife from the payment referred to in Order 10.
NOTATION:
A.The parties note that Order 23 and payments made as a result will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
B.The parties as trustees of the M Superannuation Fund have no objection to the making of these Orders.
C.The base amount is intended to equalise the parties superannuation entitlements in the M Superannuation Fund which as at 30 June 2006 stood at $250,302.94 for the husband and $237, 107.61 for the wife.
D.
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