ATTWOOD & RIGBY
[2016] FCCA 2219
•21 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATTWOOD & RIGBY | [2016] FCCA 2219 |
| Catchwords: FAMILY LAW – Rice & Asplund threshold hearing. |
| Legislation: Family Law Act 1975, ss.60CC(2), 60CD, 61DA, 62B, 65DA(2), 65DAA |
| Hayman & Hayman (1976) FLC 90-140 Rice v Asplund (1979) FLC 90-725 King & Finneran (2001) FLC 93-079 |
| Applicant: | MR ATTWOOD |
| Respondent: | MS RIGBY |
| File Number: | NCC 131 of 2012 |
| Judgment of: | Judge Myers |
| Hearing date: | 9 June 2016 |
| Date of Last Submission: | 9 June 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 21 July 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondent: | Derham Houston Lawyers |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The father’s application for final parenting orders proceed to the preparation for a final hearing.
The mother’s application that the father’s initiating application be dismissed on the basis of the Court considering the threshold issue of Rice v Asplund is dismissed.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:
(a)to consider the factors in sections 60CC, 61DA and 65DAA of the Family Law Act1975;
(b)to profile of the parties
(c)to assess the parties interactions;
(d)to assess the child’s developmental and emotional state;
(e)to assess the relationship of the child to the parties and other significant persons in the child’s household;
(f)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;
(g)to assess the proposed and actual home environments; and
(h)to assess the proposals of each party as to the child’s future.
Pursuant to Regulation 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirement of Division 15A.2 of the said Rules and the family consultant is granted leave to inspect all documents produced in response to subpoena whether such documents have or have not been released for inspection.
If the family consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the family consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.
The matter is adjourned to 17 March 2017 at 9.30 am for directions and interim hearing.
IT IS NOTED that publication of this judgment under the pseudonym Attwood & Rigby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 131 of 2012
| MR ATTWOOD |
Applicant
And
| MS RIGBY |
Respondent
EX TEMPORE` REASONS FOR JUDGMENT
This is a decision in the matter of Attwood & Rigby in respect of what might be described as a preliminary argument about whether there has been a significant change in circumstances such that the court ought to consider the orders sought by the applicant father, X, seeking to discharge consent orders in respect of the parties’ child, X, born (omitted) 2009, made by Cleary J by consent on 2 October 2013. Those orders provided for as follows:
1. All previous orders relating to the child, X, born (omitted) 2009, are discharged.
2. The mother have sole parental responsibility for the child.
3. The child shall live with the mother.
4.4.1 The parties shall each take all reasonable steps to ensure the child spends time with the father commencing 2 October 2013 on one occasion each third week for a period not exceeding three hours, which is to be supervised in accordance with order 5 hereof,
4.2 such other times as agreed in writing between the parties.
5. For the purposes of implementation of order 4.1 hereof,
a) The supervisor of the time spent by the child with the father shall be the Big Brown House with Mr R or such some other person or entity nominated by the father and accepted by the mother (the supervisor).
b) Each party shall forthwith contact and satisfactorily complete any intake assessment or procedure required by the supervisor.
c) The time that is to be spent by the child with the father on each occasion shall commence and conclude at the time designated by the supervisor.
d) The venue at which the time is to be spent by the child with the father shall be designated by the supervisor.
e) The father shall be solely responsible for the costs of supervision.
f) The mother shall cause the delivery of the child to and the collection of the child from the supervisor at the commencement and conclusion of the time spent by the child with the father, noting the time shall be spent on the (omitted).
g) If on the occasion the child is due to spend time with the father that time together cannot be accompanied by the supervisor, the time that the child would otherwise have spent with the father shall be made up at another time as close to the original time as can be arranged.
h) The parties shall comply with all reasonable requests and directions of the supervisor.
i) The parties are authorised to provide the supervisor with
i) a sealed copy of these orders.
6. Within seven days of the date of these orders, the parties are to provide the other with a mobile telephone and current postal address and provide the other with any changes to those contact details within 24 hours of such changes to those details.
7. That for the purposes of communicating information between the parties about the child, including the father sending presents or cards to the child, the mother and the father shall communicate by way of SMS message to the designated telephone contact number referred to above or to the postal addresses provided.
8. The father is restrained from entering upon or approaching within 100 metres of any preschool or school attended by the child without the mother’s written consent, and the mother is authorised to furnish a sealed copy of these orders to the principal of any such school or preschool.
9. Each party is restrained from denigrating the other party or any partner of the other party to any member of the other party’s family in the presence or hearing of the child or from permitting the child to remain in the presence or hearing of another person denigrating the other party or any partner of the other party.
10. Each party is restrained from causing or permitting the child to remain in the presence of any person discussing the allegations made in or prior to these proceedings of the child’s alleged sexual and/or physical abuse and the proceedings generally.
11. The mother shall authorise in writing the principal of any school attended by the child to provide to the father at the father’s expense copies of all school reports and school photographs or to forms relating to the child.
12. The parties shall contact the other as soon as reasonably practicable in the event of the child being hospitalised and requiring specialist medical attention and the child being involved in an accident requiring specialist medical attention.
13. The father shall provide to any counsellor retained by the father for the purpose of therapy, copies of:
a) these orders,
b) the single expert’s report prepared by Dr C dated 20 April 2013.
14. The mother is authorised to provide the Commissioner of New South Wales Police and the Director-General of the Department of Family and Community Services copies of
a) these orders,
b) the single expert report by Dr C,
c) the affidavit of Ms K filed in these proceedings on 2 August 2013,
d) the affidavit of X filed in these proceedings on 26 September 2013.
15) The father is restrained from making any reports or notifications or causing any third party to do so or have communication with any of the following:
(a) any prescribed welfare authority,
(b) the Department of Family and Community Services,
(c) the New South Wales Police.
In relation to the child X, born (omitted) 2009, without first providing any prescribed welfare authority such as the Department of Family and Community Services or the New South Wales Police with a copy of the following:
i. a copy of these orders and
ii. the single expert’s report prepared by Dr C dated 20 April 2013.
16) That the mother is to keep the father advised at all times of the following:
(a) the school the child attends,
(b) what religious instructions the child is receiving and
(c) what extracurricular activities the child takes part in.
17) The father shall pay the mother’s solicitor the sum of $4400.00 within 28 days, with such sum being half of the costs of Dr C’s report, and otherwise the mother and father pay their own costs.
18) That the mother and father each pay to the Legal Aid Commission within two months the sum of $1543.90, being their respective share of the independent children’s lawyer’s costs, and contribute equally towards the witness’ expenses of Dr C, including any cancellation fees.
19) The mother is restrained from using or attempting to use any surname other than the surname of Attwood in respect of the child either formally or informally or for any purpose whatsoever.
Orders were made pursuant to section 65DA(2) and section 62B of the Family Law Act1975.
There were a number of notations made and the notations are important in these proceedings and I propose to go through those as well;
A. Within 28 days of these orders the parties intend to cooperate with each other to send a written request to request the Commissioner of New South Wales Police to:
a) Delete the COPS events numbers (omitted) in case number (omitted) from the New South Wales COPS or E-COP system and
b) cause the status of the COPS event number (omitted) in case number (omitted) to be listed as rejected and/or
c) cause Mr S, born (omitted) 1979, to be removed as a person of interest in the COPS events numbers (omitted) in case number (omitted) and/or
d) cause X, born (omitted) 2009, to be removed as a victim in the COPS event number (omitted) in case number (omitted) and/or
e) cause the narrative within the COPS events – event number (omitted) in case number (omitted) to state that the father is withdrawing his allegations that the child, X, born (omitted) 2009, was ever indecently assaulted or sexually assaulted by Mr S.
B. Within 28 days of the date of these orders, the parties intend to cooperate with each other and send a written request to the Director-General of the Department of Family and Community Services to
a) delete the KIDS plan number (omitted) from the Department of Family and Community Services ‘KIDS’ system and/or
b) update the KIDS plan number (omitted) to show that:
i. X, born (omitted) 2009, was not any known child at risk and
ii. Mr S, date of birth (omitted) 1979, was not and is not a person of interest or a person causing harm; and/or
iii. he father withdraws any allegations that the child, X, born (omitted) 2009, was either indecently assaulted or sexually assaulted by Mr S. The father concedes – this is.
C. The father concedes this child was not either indecently assaulted or sexually assaulted by the mother’s partner, Mr S.
D. The father concedes the child was not exposed to any inappropriate behaviour by the mother or the mother’s partner, Mr S.
E. The father now accepts that, on reflection, the allegations of abuse against the mother’s partner, Mr S, were incorrect and that the statement made by the child were misinterpreted by him in the contexts of his hyper-sensitivity to the incidents of child abuse by stepfathers in the context of his highly conflictual relationship with the mother and he acknowledges that the evidence would not satisfy the Court that the child was or is being exposed to an unacceptable risk of abuse.
F. That the father is to undertake counselling and therapy with Mr G or such other suitably qualified professional to address his psychological issues, such as his hyper sensitivity to allegations of abuse by stepfathers and other issues as set out in the report of Dr C dated 20 April 2013 and, in particular, any prevalence to behave in a manipulating or controlling manner.
G. That upon the father being advised by his therapist that he has in part or whole addressed the issues as set out above and upon his providing to the mother a report from his therapist setting out his presenting systems, his treatment and his prognosis, the father intends to make application to the Court to extend the time that he spends with X and to remove the supervision of such time.
The applicant father relies upon his amended initiating application filed 4 May 2016 in which he seeks the following orders.
1.All previous orders relating to X, born (omitted) 2009, be discharged.
2.The parties each have joint parental responsibility.
3.The child live with the mother.
4.The parties shall each take reasonable steps to ensure the child spends time with the father as follows:
4.1 The child spend every second weekend from end of school on Friday to commencement of school Monday or Tuesday on a long weekend or the equivalent time if not at school,
4.2 9.00 am to 6.00 pm on father’s birthday and Fathers Day,
4.3 9.00 am until 6.00 pm on each alternate Christmas Day commencing 2016,
4.4 9.00 am to 6.00 pm on each alternate Boxing Day commencing 2017
4.5 half of each gazetted New South Wales school holiday. Failing agreement, the first half ending at 6.00 pm on the Sunday night.
4.6 Each alternative Easter from 3.00 pm Easter Thursday until 6.00 pm on Easter Monday commencing 2017.
4.7 From 2.00 pm until 7.30 pm on the child’s birthday.
4.8 The father to be given the first opportunity to care for the child in the event the mother is not available.
5.For the purposes of communicating information between the parties, the mother and father shall
5.1 communicate by text about matters of an urgent nature,
5.2 communicate by email about day to day matters.
6.The mother is to furnish a sealed copy of these orders – expert report for Dr T and Mr G. Any affidavits in these proceedings to
6.1 the principal of (omitted) School or any such school attended by the children,
6.2 the Commissioner of the New South Wales Police,
6.3 the Director-General of the Department of Family and Community Services.
7.Each party is restrained from denigrating the other party or the partner or other party in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other party or any other party.
8.Each party is restrained from causing or permitting the child to be privy to any discussions containing allegations made in or prior to these proceedings of a sexual and/or physical abuse.
9.The parties agree to contact the other as soon as is practicable in the event of, either following or caring,
9.1 the child being hospitalised,
9.2 the child being involved in an accident,
9.3 the child becoming seriously ill.
10.Each party shall inform the other and keep the other informed in writing of their respective current address, landline telephone number, mobile telephone number and email addresses.
11.The mother is restrained from using or attempting to use any surname other than the surname Attwood in respect of the child, either formally or informally, for any purpose whatsoever.
12.The mother pay half of the following fees in the Court costs and otherwise the mother pay her own legal representation costs.
The respondent mother, Ms Rigby, relies upon her response filed 8 December 2015, in which she seeks the following orders:
1.That the Rice & Asplund issue be dealt with as a discreet matter prior to any other orders.
2.That the applicant father’s application be dismissed.
3.That the applicant father pay the respondent mother’s costs of these proceedings.
The applicant father relies upon his affidavit filed 9 May 2016 in support of the orders sought by him, that the Court has read and considered. The respondent mother relies upon her affidavit filed 26 May 2016 in support of the orders sought by her, that the Court has read and considered.
By way of background, the father was born on (omitted) 1975. He is some 41 years of age and works as a (occupation omitted) with the (employer omitted). The father gives evidence within his affidavit that he is currently on leave completing a (course omitted).
The mother was born on (omitted) 1981. She is some 34 years of age and is a (occupation omitted) with the (employer omitted). The mother gives evidence within her affidavit that she is currently on maternity leave. The parties began living together in August 2002, married on (omitted) 2008 and separated on or about January 2011. In proceedings in the Magellan list of the Family Court of Australia, the father alleged that the parties’ child, X, had been sexually abused by the mother’s partner.
The allegations were subsequently withdrawn and final orders were made by the Court by consent, as referred to earlier in this decision. At the time the allegations were made, a JIRT investigation was carried out. The Court understands no evidence was found by JIRT to support an allegation of sexual abuse by the mother’s partner. By the time the parties entered into final consent orders in the Family Court, it was in the parties’ minds that, ultimately, the father would recommence proceedings.
Counsel for the mother argues that the notations found in the final orders of 2 October 2013, particularly notations F and G, refer to a requirement for the father to undertake counselling and therapy in relation to issues such as hyper sensitivity to allegations of abuse by stepfathers. It is the mother’s case that while the father has seen two counsellors, those counsellors have not provided the appropriate treatment that would address the notations and, thereafter, cause the Court to revisit the orders made on 2 October 2013.
Counsel for the mother submitted that the supervision requirement within the orders was to ensure there were no further what the counsel for the mother describes as “spurious accusations of sexual abuse made by the father”. During the course of the Family Court proceedings, a detailed report was prepared by Dr C. The report was referred to specifically within the notation F of the orders made 2 October 2013. Notation F refers to the father undertaking therapy with Mr G or other suitably qualified professional to “address his psychological issues as to his hypersensitivity to allegations of abuse by stepfathers and other issues as set out in the report of Dr C dated 28 April 2013 and, in particular, any prevalence to behave in a manipulative or controlling manner”.
Annexed to the father’s affidavit and forming exhibits C, D, I and J are psychological reports, two of Mr G and two of what appears to be Dr T. The first report in time is that of Mr G dated 2 June of 2013. The report was prepared prior to the conclusion of the proceedings in the Family Court on 2 October 2013. The report made clear that Mr G had read the report of Dr C. At page 4 of the report, Mr G sets out the following;
Mr Attwood also mentioned that he was concerned about his daughter being with her stepfather and the allegation he had raised with his wife. After we discussed the incidents and the reasons for his concern, he conceded that he may have been over-sensitive to issues about child sexual abuse because of his work as a (occupation omitted) and his familiarity with child sexual offenders. Nevertheless, when pressed on the point, he admitted he still had concerns because he had not been provided with another explanation why X would have said what she did. We then discussed the fact that young children process information differently from adults and what they express is not necessarily what they mean and how adults interpret it is often quite different from what they try to say.
The second report or better described as a letter of psychological perspective dated 12 October 2014 sets out the father’s self-referred on at 22 October 2013 requesting assistance with issues raised in the report of Dr C. On the topic of the report of Dr C, it is noted within the letter:
The report describes Mr Attwood as highly defensive, self-contained and manipulative rather than having genuine insight into his behaviour and its effect on other. Mr Attwood also drew my attention to the comments that bothersome psychological traits exist and asked if we could explore what those might be and how they might be rectified. To date I’ve seen Mr Attwood on eight occasions. Mr Attwood attended all sessions he booked. Mr Attwood provided the following documentation.
In Mr G’s report dated 20 June 2013, under the heading Presentation, it sets out:
At the initial assessment, Mr Attwood presented with what appeared to be genuine concern at the comments made by Dr C 20 April 2013. Mr Attwood stated he wanted to be a good father and if seeing somebody would make him a better dad, he would willingly get help.
The report of Mr G dated 4 February 2016 provides:
I have seen Mr Attwood now over a period well in excess of two years. In this period, he has also seen psychologist Dr T. While he has already demonstrated a number of changes in thinking and attitude while I saw him in 2013, these changes were even more profound when he presented again last year.
In the orders made in the Family Court 2 October 2013 the Court asked specifically to address following:
…that the father is to undertake counselling and therapy with Mr G or some other suitably qualified professional to address his psychological issues, such as his hypersensitivity to allegations of abuse by stepfathers and other issues as set out in the report of Dr C dated 20 April 2013 and, in particular, any prevalence to behaviour in a manipulating or controlling manner.
(2) Recent Presentation:
I am able to confirm that Mr Attwood has attended counselling sessions on a biweekly basis since August 2015. In these sessions, he has demonstrated a high level of insight and demonstrated a remarkable change in his attitude and behaviour. It should be noted that Mr Attwood never presented to me, nor seemed to meet the criteria of personality disorder as has previously been suggested in Dr C’ report.
With regard to Mr Attwood’s “hypersensitivity to allegations of abuse”, this issue was extensively addressed with him already at the time he first presented in May 2013.
To recap the background of the allegations, Mr Attwood reported that his daughter had told him her stepfather had “touched me on the bottom”. In the context that these statements were allegedly made, Mr Attwood concluded that his daughter had been sexually assaulted. In this belief Mr Attwood then reported the incident, which caused concern about his motives and mental state.
When Mr Attwood first presented he was concerned and in disagreement with the conclusions contained in the report of Dr C. At the same time he made it clear he wanted to address the alleged character shortcomings, if they did indeed apply.
In subsequent sessions at the time, as well as more recently we talked about the issue of child development and the limited reliability of children’s verbal expressive and cognitive abilities.
In the latest discussions with him, Mr Attwood contributed his insights and observations of what we had discussed when he first presented. He was attentive, not defensive and applied information he obtained in counselling and also through books he read to inform himself, back to his daughter, X, in a way that demonstrated how he now sees her behaviour quite differently.
He proffered explanations of her behaviour in line with child development principles and in fact, expressed his concern about the lack of constructive communication with his ex-wife because he recognised that X has started trying to exploit any discrepancies between her father’s and mother’s approach “to get her way”.
This was most apparent when he related their last visit. He told me the he recognised how his daughter started to “play” her mother against him. Rather than seeing this as indication of his daughter’s parental preference, he attributed it to her making use of the current situation, and trying to get the most out of it - as any child would. But he could also appreciate that this is not in her best interests, since children need boundaries to develop and flourish, and he did not give in to her demands.
This indicates to me that Mr Attwood did not use this instance to make himself more “likeable” to his daughter, but maintained the boundaries a child needs to experience on a consistent basis.
Mr Attwood concluded that he and his ex-wife, as the parents and adults, have to start talking to each other for the benefit of their daughter.
To provide a consistent environment for their daughter, he feels that they have to agree on what is and what is not allowed to minimise discrepancies which would be confusing to X, and could lead to severe disruption in her relationship with either parent.
We further discussed Mr Attwood’s feelings towards X’s stepfather, against whom he had made the allegations, and there was no animosity that I could detect. He acknowledged that he acted on what he believed to be the case and the way a concerned father would, but now regrets his allegations, which he has come to realise were based on his misinterpretation of his daughter’s statements. He accepts that children express a different reality of how adults understand what they are saying, since their cognitive development, as well as grasp of language is limited.
To answer the Court’s questions as expressed in the order of 2 October 2013 directly, Mr Attwood has addressed the issues Dr C has raised in his report and are mentioned in the orders as points 7(C)-(F), in particular what was identified as “manipulative and controlling behaviour”.
With regards to the latter, Mr Attwood has moved so far away from such behaviour, that it does not even present as an issue any more, based on his recent presentation and the conversations we had. Again, it seems worth pointing out that he has never presented to me with such symptoms, as I read Dr T’s report, this seems to be consistent with her impression. Rather than being “manipulative and controlling”, he allows himself to be challenged, was able to verbalise his views and more importantly, displayed a willingness to accept new information and change his views accordingly.
I hope this has been of assistance, Mr G.
The report of Dr T provides:
I first saw Mr Attwood on 22 October 2014 when he self-referred to address the psychological deficits described in a report of Dr C 20 April 2013. I saw Mr Attwood for eight sessions specifically addressing the issues raised in the Dr C report and provided a report dated 12 August 2014 indicating:
* increased tolerance of differing opinions;
* improved capacity to negotiate respectably;
* a significant change in relation to being able to accurately identify daughter’s needs and work towards meeting those needs independently of whether the child’s needs align with his own;
* a clear shift from dealing emotionally with his ex-partner to dealing more pragmatically with her.
Mr Attwood re-presented on 17 December 2015 requesting that I clarify said report and, specifically, I address section F, page 7 of the orders dated 2 October 2013. The orders read:
…that the father is to undergo counselling and therapy with Mr G or such other suitably qualified professional to address his psychological issues, such as his hypersensitivity to allegations of abuse by stepfathers [sic] and other issues as set out in the report of Dr C dated 20 April 2013 and, in particular, any prevalence to behaviour in a manipulating or controlling manner.
The report goes on:
Mr Attwood does not suffer from any major psychological conditions, but that behaviours such as being manipulative and an inflated sense of self esteem impact on his parenting, such as he is unable to focus on X’s needs in preference to his own. It is important to recognise that had the manipulative behaviours and inflated sense of self been at clinically significant levels, Dr C would have indicated a diagnosis of narcissistic personality disorder. No such diagnosis was indicated. Mr Attwood did not meet the clinical threshold of PAI testing with Dr C and I agree Mr Attwood does not demonstrate clinically significant personality traits to warrant a diagnosis. Mr Attwood is within the normal range of personality traits. Such any requests on previous patterns of behaviour are difficult to measure, given that the starting point was not in the pathological range and measurement is most often either pathological or not. Mr Attwood reported tendencies to manipulate. An inflated sense of self has resulted in some uncomfortable self-reflection in therapy. But he persevered and made significant gains. Having undergone therapy, Mr Attwood’s capacity to recognise manipulative and controlling behaviour, as well as engage in healthier behaviours, is much improved. In particular, Mr Attwood is better able to:
* recognise the part he played in all interactions and especially interactions that are difficult or have become difficult;
* acknowledge other persons’ feelings and not minimise same;
* avoid leading statements and offering respectful opinions instead;
* agreeing to disagree and, in doing so, seek a win/win solution rather than ….. with a rigid agenda;
* avoiding personal attacks, especially in relation to his ex-partner and her partner, understanding that personal attacks are unsettling for his daughter and unbecoming as a father;
* recognise and avoid using non-verbal behaviour that aims to manipulate and control others – eye rolling, sighing, head shaking – and a means of showing disapproval or disappointment.
I can be contacted on a telephone number for clarification or further comment. Dr T.
The orders of 2 October 2013 provide that the father spend time with X on one occasion each third weekend for a period of not exceeding three hours which time was to be supervised or at such other times as agreed in writing. The father gave evidence in his affidavit with respect to requests made to the mother to spend additional time with X. Since the orders were made, the time has been supervised by a private supervisor, Mr R. The father requested additional time, including a request made on 20 December 2014 that the father be able to make arrangements to give X her Christmas present where Mr R cancelled his supervision of the child’s time with the father on 27 December 2014. The father gave evidence that he received no reply to his text request to the mother.
On 16 January 2015, the father wrote to the mother seeking permission to attend X’s first day of school. On 25 January 2015, the father renewed such requests by way of text message to the mother’s mobile phone. In a letter to the father from the mother’s solicitor dated 27 January 2015, the father was advised:
We confirm our instructions as conveyed to your solicitor on 25 September 2014 that our client does not agree to any variation to the current orders. For the avoidance of misunderstanding, we are instructed that our client does not provide consent to your client attending the school that X will be attending.
On 19 December 2014, the father wrote a text message to the mother:
Ms K, I’m in (omitted). Mum has had tests this week and she has cancer. I hope you may be able to let her see X in the future, regards, Des.
The father gives evidence no reply was received to the father’s text from the mother. Between 18 April 2015 until 29 August 2015 X did not see the father. There is a dispute between the parties as to the reason for the failure including difficulties with Mr R providing supervision because of illness and unavailability.
The mother’s position with respect to the father spending such other time as agreed between the parties in writing contemplated at order 4.2 of the orders made by consent is made clear in her solicitor’s letter to the father dated 21 July 2015 that provides:
We are instructed that you have recently contacted our client seeking her consent to make arrangements for X to spend time with you outside the terms of the orders made in October 2013. Our client is not interested in any such arrangement and will continue to comply with the orders as she has done so since they were made.
The threshold principle of significant change was first set down in the 1976 decision in Hayman & Hayman. It was subsequently affirmed in the 1979 decision of Rice & Asplund from which the principle takes its name. Evatt CJ, with whom Pawley and Fogarty JJ agreed, qualified the principle in these terms:
The court 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 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.
The type of change required has been variously described. Relevant formulations include a substantial change, a startling new circumstance, sufficiently weighty new facts and circumstances and a material change in circumstances. However the phrases might be framed, the various incarnations are all directed in substance at the applicant establishing a change in circumstances. It warrants a consideration of whether the existing orders should be altered. In King & Finneran, Collier J explained the principle in these terms:
The change or fresh circumstances must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to re-litigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that fresh or changed circumstances would result in a change of orders. It merely indicates that the change or fresh circumstances must be such that if taken into account there is a real likelihood that the change may follow.
The question of changed circumstances may be dealt with as a preliminary issue. If changed circumstances are found to be lacking the application for variation may be dismissed provided the court complies with the requirement of procedural fairness. In Morton & Berry the Full Court considered the issue of summary dismissal by the trial judge and held that when considering an application in the nature of summary dismissal or determination of threshold issue it is useful to consider what was said in Perrot where the Full Court said:
In Miller & Harrington this court said:
It may be, however, that neither the expressions "summary dismissal" or "striking out" is the best term to describe the procedure when, in a parenting case, the rule in Rice & Asplund is considered as a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice & Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
In Morton v Berry the Full Court went on to consider the issue further referring to the decision in Newling & Newling and stated:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting the child, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeat applications concerning its custody and access before the court. Emphasis added.
Ainslie-Wallace J in Morton & Berry went on to further state:
The rule is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interest.
And in that regard see Langmeil & Grange [2013] FamCAFC 31.
The application of the rule is connected to the nature and degree of change sought to the earlier orders (SPS & PLS [2008] FamCAFC 16). It is to be recalled, however, as was said in Perrot & Perrot [2014] FamCAFC 128, referring to the decision of the High Court in Norbis & Norbis [1986] HCA 17 where Brennan J said:
It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that principles may harden into legal rules which would confine the discretion more narrowly than the parliament intended.
Ainslie-Wallace J went on to further say:
It is not relevant to the determination of this case to consider whether the cases concerned with Rice & Asplund have hardened into binding principles. However, there is no doubt that the concepts to which Rice & Asplund and the cases which follow it refer are entrenched in the Family Law jurisprudence. As to the applications of the principles, the Full Court in Marsden & Winch [2009] FamCAFC said:
Nevertheless, there are significant changes that occur and which do not require a court to reconsider decisions previously made. Where in a particular case the court would be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interest of the child, is a decision to be made in a particular case. How that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way as a result of a new hearing.
(3) Is there such a likelihood that the nature of the likely change must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have significant benefit to compensate for the disruption caused by significant re-litigation.
Although the provisions of Part VII of the Family Law Act, which govern the determination of the application before his Honour, have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority apply to these proceedings.
The Court considers the best interest of the child. On the face of the evidence of the parties, and in considering the orders made in October 2013 there is some benefit in X maintaining a relationship with the father. The Court accepts there are difficulties in maintaining a meaningful relationship where there is infrequency of time and the time is supervised. The orders made on 2 October 2013 contemplated further time taking place between the child and the father where the parties agreed. The mother has refused to any further time.
The orders made on 2 October 2013 provided for supervision for the purposes of preventing the child suffering physical or psychological harm where the father made allegations that X was either indecently assaulted or sexually abused by the mother’s partner Mr S. The father provides evidence of having attended upon two psychologists, he submits, for the purposes of addressing psychological issue such as his hypersensitivity to allegations of the abuse by stepfathers and other issues as set out in the report of Dr C.
Counsel with the mother suggest that the father has not met, in effect, a set of criteria found in notation (f) of the orders made 2 October 2013 that if met would go towards establishing significant change. The Court rejects any proposition that notation (f) is a set of criteria that must be met in order that the Court accept that significant change in circumstances warrant the Court revisiting the earlier orders. The Court accepts that the evidence of the father’s psychologist demonstrated change of mindset, or shift of thinking by the father both in respect of the views about the mother’s partner; what occurred that led to the allegations of abuse, namely, the father’s misinterpretation of his communication with X; and otherwise has sought to address his psychological issues raised by Dr C about the father in his report.
The Court does not have available any views expressed by X that the Court can give weight having regards to section 60CD. The nature of the relationship between the child and the mother, the Court accepts, is one of primary attachment. The nature of the relationship between X and the father is one of infrequency and absence where such time is supervised. It is what the Court describes as the bare threads of a relationship where the mother has been disagreeable to increasing the father’s time beyond three hours every third weekend.
X has a half sibling in the father’s household and a half-sibling in the mother’s household. The nature of the relationship between X and her half-brother in the father’s household is one of absence. There is little other evidence that would allow the court to make findings about the nature of the relationship between X and her half-sibling in the mother’s household, her stepfather or grandparents. The Court makes no findings that the parties have failed to participate in making long term decisions in relation to the child to spend time with the child or communicate with her noting the existing orders that provide for the mother to have sole parental responsibility and otherwise a dispute as to why X did not spend time with the father for a three month period in 2015.
The Court cannot make findings about the likelihood of any change in the child’s circumstances where this is a threshold hearing on the question of Rice & Asplund. There is a difficulty and expense of the child continuing to spend supervised time demonstrated in part by the disagreements between the parties surrounding Mr R. The Court otherwise has considered those matters set out at section 60CC(2)(a) and (b), (3)(a) through to (m). The Court has considered the past circumstances being those as existing at the time the orders were made on 2 October 2013 by consent, in particular the contents of the report of Dr C.
The Court is of the view there is a likelihood of the orders being varied in a significant way whereby the requirement that the child’s time be supervised might be removed and perhaps increased after a consideration of those matters set out at section 60CC(2)(a) and (b), (3)(a) through to (m), section 61DA and section 65DAA at the final hearing. The parties are in conflict. The orders made on a final basis contemplated a change in the time X spent with the father. The child will be exposed to a family report interview and perhaps interviews by an independent children’s lawyer upon the commencement of litigation, beyond this threshold hearing.
It would appear from the father’s affidavit material that X is aware of the parties’ diverging views on the amount of time she should spend with her father. Should the Court find that the child’s time with the father should increase to frequent unsupervised time such change would represent a change of such a type that would benefit the child and compensate for the disruption caused to the child and parties by the re-litigation where the court is able to find an increase in unsupervised time is in the best interests of X and otherwise reasonably practicable.
The Court finds that the father’s engagement with Dr T and Mr G have led to the father addressing his psychological issues such as his hypersensitivity to allegations of abuse by stepfathers and other issues identified in the report of Dr C and that the father’s engagement and thereafter change in attitude represent a significant change in circumstances. The Court finds it is in the best interests of this child to re-litigate the question of the child’s time with the father and the requirement for supervision.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Myers
Date: 26 August 2016
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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