BANHAM & BANHAM (No.2)
[2020] FCCA 2450
•3 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANHAM & BANHAM (No.2) | [2020] FCCA 2450 |
| Catchwords: FAMILY LAW – Parenting – application to vary a final parenting order – whether there is a sufficient change in circumstances – Rice & Asplund – whether a family report is needed to determine the issue. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(3), 69ZW. |
| Cases cited: Granville & Blakeslee [2017] FamCAFC 162 Marsden & Winch [2009] FamCAFC 152 Morgan & Miles [2007] FamCA 1230 SPS & PLS [2008] FamCAFC 16 Ralton & Ralton [2017] FamCAFC 182 Reid & Lynch [2010] FamCAFC 184 Rice & Asplund (1979) FLC 90-725 Watson & Watson [2018] FCCA 1791 |
| Applicant: | MS BANHAM |
| Respondent: | MR BANHAM |
| File Number: | MLC 881 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 9 July 2020 |
| Date of Last Submission: | 9 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 3 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Parker |
| Solicitors for the Applicant: | Kennedy Partners |
| Counsel for the Respondent: | Mr G Thompson |
| Solicitors for the Respondent: | Nicholas James Lawyers |
ORDERS
The Mother’s Amended Application filed on 5 June 2020 be dismissed.
All other extant applications be dismissed.
There be no orders as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Banham & Banham (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 881 of 2015
| MS BANHAM |
Applicant
And
| MR BANHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
By initiating application filed 6 April 2020, the applicant mother seeks a change of parenting arrangements for the twin children X and Y both born in 2007.
Final parenting orders were made by consent on 28 April 2015 (“the Final Orders”) that provide for the children to live with the respondent father in Melbourne and spend time with the mother for one half of school holidays in Brisbane and on one weekend each month in Melbourne.
The mother seeks a change of parenting arrangements that ultimately reverse the current arrangements. The mother seeks for the children to live with her in Brisbane and spend time with the father for half of the school holidays and on arranged weekends in Brisbane. The father opposes this and seeks for the current arrangements to remain.
On 9 June 2020 the father filed an application seeking orders that the mother’s application be dismissed.
The issue for determination in this matter before the Court is whether there has been a significant change in circumstances as that expression is used in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) so as to enable the parties to re-open the matter. A further issue before the Court is whether a family report is required to assist in determining the Rice & Asplund issue.
The mother relied on her affidavits sworn 6 April 2020, 5 June 2020, 30 June 2020 and the affidavit of Ms C sworn 3 July 2020. The father relied on his affidavits sworn 2 June 2020 and 23 June 2020.
Background
The parties’ relationship commenced in 1998. They married in 2003 and separated on a final basis in 2013.
Following the parties’ separation in 2013, the mother relocated to Brisbane to live with her father while the children remained living in Melbourne with the father.
Since the Final Orders came into effect, the children have travelled to Brisbane on school holidays to spend time with the mother and the mother has at times visited Melbourne on weekends.
The father had re-partnered and although that relationship has finished, he and that partner remain friendly.
The mother has also re-partnered and they live together with his daughter who lives with them on a week about basis in Brisbane.
Procedural History
On 6 April 2020 the mother filed an initiating application seeking an urgent hearing. The mother relied upon an affidavit sworn on 5 April 2020. The matter came before me on 7 April 2020. The mother sought interim orders on an urgent basis for the father to facilitate the children travelling to Brisbane during the April 2020 school holiday period in accordance with the Final Orders of 2015. The father had expressed concerns regarding the children travelling to Brisbane due to the COVID-19 pandemic. The mother also sought that a qualified psychologist be engaged for the purpose of preparing a family report. In her application to the Court, the mother sought at [9] that the family report encompass the following matters:
“9.1 the parties’ respective applications;
9.2 the appropriate parenting arrangements for the children;
9.3 the matters set out in section 60CC of the Family Law Act 1975, and particularly the children’s views and any risk to the children; and
9.4 any other matters considered relevant by the family report writer.”
In the mother’s application filed on 6 April 2020, the mother additionally sought final orders that in effect would discharge and reverse the Final Orders made in 2015. The final orders sought be the mother were as follows:
“2. The children…live with the mother.
3. The children spend time with the father:
3.1 at the father’s election, from 5:00 pm on Friday until 5:00 pm on Sunday (or 5:00 pm on Monday if a long weekend);
3.2 for one half of the children’s school holiday periods, being the first half of the holidays in 2020 and each alternate year thereafter, and the second half of the holidays in 2021 and each alternate year thereafter.
4. For the purpose of order 3.1:
4.1 the father is to give the mother notice in writing of his intention to next spend time with the children before the conclusion of the preceding visit;
4.2 the children’s time with the father take place in the greater Brisbane area;
5. For the purpose of order 3.2:
5.1 the children’s school holidays are deemed to commence at the conclusion of school on the final day of school term and conclude at 5:00 pm on the day immediately preceding the first day of school term;
5.2 the father may elect to spend time with the children interstate during the children’s school holidays, and for this purpose:
5.2.1 the father book and pay for the children’s flights and give a copy of the children’s itinerary to the mother at least 45 days prior to the commencement of the school holidays;
5.2.2 the mother deliver the children to and collect the children from the Brisbane airport;
5.2.3 the children fly as unaccompanied minors.
6. The children communicate with the father by voice or video call during times they arewith the mother:
6.1 each Wednesday and Sunday between 7:00pm and 7:30 pm;
6.2 on the children’s birthday between 7:00 am and 8:00 am;
6.3 at any other time requested by the children.”
7. The children communicate with the mother by voice or video call during times they are with the father in the school holidays:
7.1 each Wednesday and Sunday between 7:00 pm and 7:30 pm;
7.2 on the children’s birthdays between 7:00 am and 8:00 am;
7.3 at any other time requested by the children.
Upon hearing the parties, interim Orders were made on 8 April 2020 suspending Orders 3.1 and 3.2 of the 2015 Orders which provided for the spend time arrangements that were in place with the mother. The orders made were as follows:
“1. Orders 3.1 and 3.2 of the orders made on 28 April 2015 be suspended during the currency of the Stage 3 “Stay at Home” restrictions or higher imposed by the Victorian Government (“the government restrictions”), and during this period:
1.1 the children …and the mother be at liberty to communicate with each other, whether by voice call, video call or electronic messaging, or to engage in online games and/or social media platforms:
1.1.1 during school holiday periods, as may be arranged between themselves; and
1.1.2 during school term time, as may be arranged between themselves each evening between the hours of 7:00 pm and 8:30 pm; and
1.1.3 such other times as may be agreed between the parties.
1.2 the father do all acts and things required to ensure the children have available to them their own devices and charging equipment in ready and working order (save for charging, which the children are responsible for themselves) to facilitate such communication and/or online games or social media platforms.
2. Pending lifting of the government restrictions, and save for the arrangements between the mother and the children to facilitate their communication as provided by these orders, neither party discuss further with the children these proceedings or the dispute between the parties in relation to the children spending time with the mother.
3. Upon the lifting of the government restrictions, the children spend such make-up time with the mother for time missed during holidays and term time, to be arranged as soon as practicable, as may be agreed between the parties in writing.
4. In the event of failure to agree on any time or communication arrangements, including make-up time, the parties have liberty to apply to the court at short notice.
5. In the event the father is diagnosed with COVID-19 and is hospitalised or is too unwell to care for the children, the father forthwith inform the mother and the mother be at liberty to travel to Melbourne as may be permitted by the government imposed restrictions, to care for the children during the period that the children are required to self-isolate as a result of being in direct contact with the father.
The father then filed an Application in a Case as a self-represented litigant on 3 June 2020 seeking orders dismissing the mother’s initiating application. The father sought the following orders:
“1. Application to Dismiss the Initiating Application dated 06/04/2020 file No.MLC881/2015
2. That the Applicant cease and desist from making vexatious claims about the Respondent
3. That the Applicant be compelled to collaborate, communicate and cooperate in joint parenting the children (Y and X).”
The mother filed an amended application on 5 June 2020. In the application, the mother sought final orders which were the same as those contained in [13] of this judgment. The mother also sought amended interim orders:
a)striking out the previously sought orders seeking the father to facilitate the children travelling to Brisbane during the April 2020 school holidays;
b)dismissing the father’s Application in a Case filed on 3 June 2020;
c)amending the orders sought in relation to matters to be encompassed in the Family Report to include:
“3.1 the parties’ respective applications;
3.2 the appropriate parenting arrangements for the children in the immediate and long term;
3.3 the matters set out in section 60CC of the Family Law Act 1975, and particularly, but not limited to, the children’s views and any risk to the children associated with family violence or exposure to family violence; and
3.4 any other matters considered relevant by the family report writer.” ; and
d)Seeking in an order pursuant to section 69ZW of the Family Law Act 1975 that the DHHS, Victoria Police and Queensland Police service provide to the Court documents in relation to any notifications or reports of child abuse of family violence.
The father filed a response to the mother’s application for final orders on 25 June 2020, and sought:
“1. That the Mother’s Initiating Application filed 6 April 2020 and Amending Initiating Application filed 5 June be dismissed.
2. That the Mother pay the Father’ costs of and incidental to these applications.”
This matter returned before me on 9 June 2020, at which time the mother alleged that the children have been exposed to family violence while in the father’s care. An order pursuant to section 69ZW of the Family Law Act 1975 (Cth) (“the Act”) was made requesting the Department of Health and Human Services (“the DHHS”), Victoria Police and Queensland Police Service provide the Court with information in relation to the children.
The mother made further submissions that, due to the children’s ages, the children’s views and the allegations of family violence against the father, the proceeding should be allowed to continue and that a family report should be obtained in order to assist the court and to ascertain the views of the children.
Application of Rice & Asplund
The applicable law in this matter is the rule as set out in Rice & Asplund. In this case Evatt CJ said at [7]:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, …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…
In applying these principles as set out in Rice & Asplund, the Court in this case must give consideration to the following:
a)the circumstances at the time of the making of the Final Orders in 2015, having regard to that earlier order and the reasons for and material on which that order was based;
b)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing; and
c)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation:
In SPS & PLS [2008] FamCAFC 16 (“SPS & PLS”), Warrick J said at [48] that the rule in Rice & Asplund is “merely a manifestation of the best interest’s principle”.
In, Reid & Lynch [2010] FAMCAFC 184, at [20] – [22], the Full Court said that:
a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment, unless the court can be satisfied that there is some changed circumstance which would justify such a serious step, or some fact which was not previously disclosed which would have been material in the making of the orders.
I would also in this context refer to the observations of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 at 118 (albeit made in the context of the admission of further evidence on appeals in parenting cases) that the “important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.”(See also Watson & Watson [2018] FCCA 1791 at [369] per Judge Kelly, where His Honour set out a detailed analysis of the rule and its application).
The Court must also consider Marsden & Winch [2009] FamCAFC 152 (“Marsden”) and whether a variation to the current orders would benefit the children more than the disruption and emotional harm likely to be caused to them by re-litigation.
In Marsden the Court stated at [48] that:
“… there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.”
Further, as was found in Marsden at [47], in circumstances where the Court has been asked to determine this matter at a preliminary stage the following principals apply:
“...when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”
Reasons for the final consent orders of 2015
As stated above, in Rice & Asplund, Evatt CJ said at [7] that“…the court should have regard to any earlier order and to the reasons for and the material on which that order was based.”
This matter first came before this Court in 2015 when the mother filed her original initiating application on 9 February 2015. The mother sought parenting orders for the children to live with the father and spend time with her for half of all school holidays and for one weekend each month. These orders sought by the mother essentially became part of the Final Orders made by consent on 28 April 2015 by Judge Small. The Final Orders regarding who the children live with and spend time include the following:
“2. That the children live with the father.
3. That the children spend time with the mother at all times as may be agreed between the parties and failing agreement:
3.1 On one occasion each calendar month at the mother’s election, from 5.00pm on Friday until 5.00pm on Sunday (or 5.00pm on Monday if a long weekend); and
3.2 For the first half of the children’s school holidays in 2015 and each alternate year thereafter, and for the second half of the children’s school holidays in 2016 and each alternate year thereafter.”
The mother’s application was supported by an affidavit that was sworn on 13 January 2015. The father did not file any affidavit in opposition to the parenting application. The mother’s affidavit describes various health issues, and a difficult pregnancy which included a period of hospitalisation for 14 weeks. After the children were born prematurely, they were placed in the special care nursery and the mother describes the stresses and difficulties arising from dealing with that and the effects of hospitalisation during pregnancy. She describes in detail the stress and anxiety that she felt and the assistance received from a psychiatrist who diagnosed her with postnatal depression. The mother’s affidavit sets out in detail the challenges that she faced in looking after two children including because of health issues that she faced. She describes the relationship with the father as finishing in about March 2013 but that she remained in the family home until about December 2013. The mother is not critical of the father’s support through this period.
The mother describes each parent as looking after children between March and July 2013. At paragraph [35] of her affidavit she describes various health issues which made it difficult for her to assist the father in the children’s care as much as she wished to. The parties agreed that the mother would travel to the Country D to take a break. She left the children with the father, travelling to the Country D in 2013 for a planned six-week trip and ended up remaining approximately nine weeks. She describes herself as being in very poor health when she left the Country D. At this point the children were six years old.
The father travelled to the Country E with the children in 2013 and at that time the mother travelled to Queensland to live with her father, where she has remained living.
The mother’s affidavit dealt with the s60CC(3) factors and in relation to parental responsibility the mother stated at [64]:
“Mr Banham has always been diligent in keeping me informed in relation to the children’s long-term needs and giving me the opportunity to be involved in those decisions. I am of the view that, notwithstanding the physical distance between us both, we ought to continue to share the decision-making regarding the children’s long-term needs.”
In relation to the benefit of the children having a meaningful relationship with both parents the mother stated at [65]:
“It is appropriate that both children have a meaningful relationship with their parents. Mr Banham is an attentive and good father and both children would benefit from having a meaningful relationship with both of us.”
In relation to the views of the children, she stated at [66]:
“Both X and Y thoroughly enjoyed the time with me over the September/October school holiday period – they told me so. Y was particularly upset about having to return. X is a strong girl who has a particularly close affection for her father and I therefore found that she was able to transition between us both relatively easily.”
At [59] – [60] of her affidavit the mother stated in relation to the children, who were seven years old at the time:
“I travelled with the children back to Melbourne. The days leading up to their return, Y in particular was sad about the return, asking whether he could stay for another week. He was very teary on the day that we had to return to Melbourne and was very clingy. The children left with Mr Banham at the airport, they were both very upset. I did not call the children that evening for fear of upsetting.
Following that trip, Mr Banham advised me that Y had been somewhat unsettled. I suggested that perhaps the children might benefit from speaking to someone. I understand that Mr Banham may have taken the children to speak with a psychologist but I have not been provided with any particulars in that regard.”
In the mother’s affidavit sworn 6 April 2020, the mother states at [4] that she was:
“…forced to issue proceedings on 9 February 2015, because Mr Banham only allowed the children to spend very limited time with me after separation.”
The mother further states at [3] that:
I moved to Brisbane from Melbourne at the time of separation in around December 2013 at which time I was suffering from severe anxiety and various other health issues. I did not have the financial resources or support in Melbourne, and accordingly, moved in with my father in Brisbane who has assisted with my financial support over the years.
The mother also states at [5] of her affidavit sworn 6 April 2020 that she consented to the Final Orders in 2015 as she was not well enough to engage in “contested litigation.”
“At the time I agreed to the 2015 orders, I was not mentally or physically well or strong enough to engage in what would have likely been strongly contested litigation with Mr Banham for the children to live with me. Accordingly, I felt I had no other option but to agree to the arrangements provided by the 2015 orders.”
The Final Orders made on 28 April 2015 gave effect to the orders sought by the mother in her initiating application. It does not appear to be a case where the mother consented because of the pressures of litigation, rather it is a case of the father agreeing to the orders proposed by the mother. The father did not file any material in opposition to the orders sought by the mother. There were no allegations of family violence against the father and there are no allegations that he was an abuser of drugs or alcohol or was otherwise failing to take responsibility for the care of the children. The mother’s affidavit sworn on 13 January 2015 indicates that the father was active in the care of the children: see [13], [15]-[17], [24], [34]-[35] and [64]-[65].
The mother’s submissions
Counsel for the mother submitted three changes of circumstances since the Final Orders were made in 2015, they being:
a)The children’s ages;
b)The children’s views; and
c)The allegations of family violence, in particular violence directed towards the children by the father.
The mother relied upon on her affidavits sworn 6 April 2020, 5 June 2020, 30 June 2020 and the affidavit of Ms C sworn 3 July 2020.
The children’s ages and views
Counsel for the mother submitted that the children’s ages are a significant change in circumstance as the children were only seven years old at the time of the Final Orders in 2015 and they are now 13 years old and have expressed the view that they want to live with the mother.
In the mother’s affidavit sworn 30 June 2020 she states at [23]:
“My application for the children to live with me is borne out of my increasing concerns in relation to Mr Banham’ escalating aggressive behaviour toward the children over the last two years, and as they are becoming older and now entering adolescence, as well as their strong desire to live with me and increased maturity.”
The mother further submits in her affidavit sworn 5 June 2020, at [28]:
“Both children have, on countless occasions, expressed a strong desire to live with me, going back over the last couple of years. At times, they have each – particularly Y – been extremely emotional and upset at the prospect they could not simply stay with me permanently. I felt I had no option but to explain to them there is a court order in place which I must adhere to, and unless Mr Banham agrees or a judge decided they could, they could not come and live with me in Queensland. Y has expressed frustration that what he wants does not appear to matter and has said he wants,” the judge to let us live with you”.”
In a report annexed to her affidavit sworn 25 June 2020, clinical psychologist Ms C, states at page 8 that “the twins reported that they would like to live with their mother in Brisbane”.
In the mother’s affidavit sworn 5 June 2020, she states at [16] that on 20 October 2019, X called the mother when the mother was at the airport returning to Brisbane after spending time with the children in Melbourne and that X stated:
“You’ve only been gone two hours and daddy is screaming at us about nothing. This happens all the time. Please mummy, I want to live with you. I can’t live like this forever. Please can we live with you?”
However, in the same affidavit, the mother states at [42]:
“I recognise the commitment Mr Banham has made to the children and that it has not been easy to have the primary care of the children over the last five years. I know the children love Mr Banham very much, as their father, and have already expressed concern about how it would impact Mr Banham if they came to live with me. The children appear to have a sense of responsibility not to do this to their father and the fact they feel this responsibility causes me further concern. It saddens me immensely, however, that Mr Banham appears increasingly unable to manage his temper and outbursts and it has come to the point where I feel the children are not safe in his care. I can no longer sit back and simply watch and hope it will improve.”
The allegations of family violence
The mother has stated that the children are subjected to family violence by the father. The father denies these allegations.
The mother has provided examples in her affidavits of numerous occasion where she says the children have contacted her from Melbourne at times when the father has become aggressive or alleged to have committed family violence. The mother has then reported these allegations to a variety of authorities. At paragraph [7] of her affidavit sworn 5 June 2020 she states that:
“I reported the more serious of these incidences to the relevant authorities, including DHHS, Victoria Police and the Queensland Police Service.”
Those reports are detailed below.
In the mother’s affidavit sworn 5 June 2020 she states at [10] that both children have stated they are “scared of dad.”. In the same affidavit she further deposes at [6] that:
From my experiences with Mr Banham during our marriage and around separation, he has a short temper and reacts aggressively when displeased or challenged.
In the report prepared by Ms C, she states on page 7 that both children have reported: “feeling unsafe living with the father on account of his aggressive behaviour towards them…”.
Ms C, on page 7 of her report, also states:
“Ms Banham reported that she left her marriage with Mr Banham when the twins were 6 years old on account of escalating emotional abuse, perpetuated by Mr Banham toward Ms Banham”
…
“Their mother fled the relationship when the twins were 6 years old on account of family violence. She is also scared of their father.”
These comments are at odds with the historical background of this matter. The mother did not include in her original application or supporting affidavit in 2015, any allegation of family violence. The mother did not seek the orders (that were subsequently made to the court) because she had been pressured to accept those orders by the father or because of allegations of family violence.
The father’s submissions
The father rejects the grounds of a change in circumstances and seeks orders dismissing the mother’s application and therefore for the children to remain living with him in Melbourne. The father relied upon his affidavits sworn on 2 June 2020 and 23 June 2020.
The children’s ages and views
In response to the submission by the mother that the children express a view that they now wish to live with the mother, the father states at [53] of his affidavit sworn 23 June 2020:
“I do not deny that Y has always said that he wants to live with his Mother. This has been the case since Ms Banham left in 2013 and remains the same today. It is sad for Y that his mother has chosen to live in a different state for the last 7.5 years…”
In a letter from the children’s Melbourne psychologist, Ms F dated 22 May 2020 and annexed to the father’s affidavit sworn 2 June 2020, Ms F states that:
“X oscillates between wanting to live with her mother on a more permanent basis, and desiring to stay in Melbourne with her family. She expresses her desire for stability, and shows active enthusiasm with regard to her schooling, friendships and activities that she is engrossed in within her lifestyle in Melbourne. X does express that she misses her mother dearly, and often states that she wishes mum could live in Melbourne so that her family could geographically be closer together and time between homes could be shared more evenly.”
…
Y repeatedly expresses his desire to spend more time with his mother and his extended maternal family and explicitly states he does not feel it is fair grownups are making decisions without listening to his views. He consistently states he wants to live with ihis mother in Brisbane. Y has stated on two occasions to me, “I know dad would come up and visit all the time and I’m really frightened of losing mum again”.”
Ms F states further in her letter about the children’s struggles the children have with moving between Melbourne and Brisbane. She states that:
“It is evident that both X and Y struggle with the transition between the homes of each parent. Both report that it takes some time to adjust back to their Melbourne setting following an extended visit with their mother in Brisbane.”
The allegations of family violence
Counsel for the father dismissed the family violence allegations made by the mother against the father as “case building” and a “beat up” referring specifically to the instances where the mother has made reports to various authorities.
Counsel for the father submitted at the hearing that it is human nature for children to make complaints to a parent when they have been disciplined by the other parent and that the discipline of children is the “hurly burly” of family life. Counsel went on to say that the father was “being a responsible parent and he has ensured the children behave appropriately and that the parenting of two teenage children is no easy task.”
Counsel for the father relied upon subpoenaed documents from Victoria Police. A specific incident that was referred to was an incident from 4 November 2018. The Victoria Police incident summary report from that day states:
“Today the Resp [the father] has been working in the garden. The Resp has asked the AFM [X] to do her homework. The AFM has not started her homework as asked. The Resp has become angry and pushed the AFM back inside telling her to her homework. No injuries have occurred as a result of the push. The Resp has then texted her mother in Queensland stating that the Resp had upset her and she had a sore wrist. The mother has then called police to conduct a welfare check on all parties. When police arrived the AFM and Resp were surprised that police had been called. The AFM stated that she had hurt her wrist at school and that it was not from the Resp pushing her. The AFM was not fearful or concerned with the Resp’s actions.”
On 7 November 2018 a joint disclosure meeting with X was held at the school with DHHS present. The Victoria Police incident summary report states:
“Subject [X] disclosed incident that occurred either last Saturday or Sunday, Subject wanted to draw a hopscotch outside using hairspray. Asked Dad’s permission. Dad said no. They had an argument in the kitchen about it during which dad grabbed subject’s wrist. Subject’s wrist got hurt due to her Garmin watch being pushed into her wrist. Red mark. NOD. DHHS to engage with family. Matter completed.”
The father acknowledges that he gets frustrated with the children from time to time. At paragraph [60] of the father’s affidavit sworn 23 June 2020, he refers to an email sent by him to the mother which states:
“…I get incredibly frustrated with the kids from time to time, and as I have said, will no doubt continue to do so in the future.”
In a letter from the children’s Melbourne psychologist, Ms F dated 22 May 2020 and annexed to the father’s affidavit sworn 23 June 2020, Ms F states that:
“I have not observed any fear response from either Y or X toward Mr Banham; in fact, based on my observations and stories shared, both children appear to have a warm connection with Mr Banham that is characterised by my observations of their physical affection (hugs), shared laughter and positive regard.”
In the mother’s affidavit sworn 30 July 2020, she states at [15] that:
“…the children are great kids, and acknowledge Mr Banham has played the greater role in their lives to date.”
Evidence from DHHS, Victoria Police and the Queensland Police Service regarding the allegations of family violence
In relation to the allegations of family violence against the children, an order was made by consent on 9 June 2020 pursuant to section 69ZW of the Family Law Act 1975, for information to be provided by DHHS, Victoria Police and the Queensland Police service. In response to that Order, documents from the three agencies were provided, which detail several reported incidents from October 2018 to April 2020. The parties referred to these documents at length in their submissions.
DHHS have provided a “Summary of Child Protection History” dated 22 April 2020 (“the DHHS Summary”) and a copy of Full Response Reports were also provided, which relate to each of the incidents as outlined below.
October and November 2018
In October 2018, DHHS received a report from the mother, with the DHHS Summary of the incident stating:
“It was reported that Mr Banham had used physical discipline on the children, as well as physical restraint. The Sexual Offences and Child Abuse Investigation Team (SOCIT) were notified, however no further action was taken. Contact was made with support services who raised no concerns for the wellbeing of the children in the care of their father.”
DHHS received a report from the mother on or around 31 October 2018. In this instance the DHHS Summary and Full Response Report states:
“It was reported that Mr Banham had put his hands around the neck of Y and called him a “fucking little shit”. Further concerns were reported in relation to the mental health of Y…Given the concerns raised, SOCIT were informed of the concerns….It was assessed that no further action was required by Child Protection and the matter was closed.”
DHHS received a report on or about 5 November 2018, which is described in the mother and father’s submissions above. The DHHS Summary states:
“During the investigation, it was ascertained that the incident did occur, however with no ill intent. It was ascertained that Mr Banham had grabbed X’s wrist to stop her spray-painting the floor and did not act inappropriately. No protective concerns were found, however “there is considerable concern for the long term in relation to the children’s well-being given the refusal for the parents to work together for the best interests of the children.”
Emphasis added.
April and July 2019
On or around 27 April 2019, DHHS received a report with concerns raised “due to allegations of inappropriate physical discipline”. The Full Response Report of the incident states:
“On 27/04/19, subject [Y] disclosed to his mother that the suspect [Mr Banham] had dragged him across a soccer pitch on the 24/4/19…the subject told the suspect that he wanted to go and sit in the car. Suspect told the subject that he didn’t want him to do that because he would not be visible to him if he sat in the car in the car park. The subject has tried to leave and the suspect has yelled at the subject grabbed him by the wrists, ankles and then by his ribs. Subject said that it hurt when he was grabbed on the ribs as his ribs were sore from a prior bike accident…Nil visible injuries sustained.”
The DHHS indicates that in this matter SOCIT did not proceed with an investigation. Further, in the same Full Response Report, it is stated that the incident was reported to “A/HCO – Mr G ” and then states:
“MR G stated that there had been three previous reports of a similar nature – mainly to do with the children not liking the suspect’s [Mr Banham’s] discipline/strict parenting. Subject’s mother has been the RP for 2 of the 3 reports. Relationship between the subject’s parents is acrimonious”
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CP advised that Ms Banham has already been advised to speak to a solicitor if she wants to amend the FLC.”
On or around 12 July 2019, DHHS received a report of an incident with the Full Response Report of the incident stating:
“Information received from childrens psychologist in QLD is that the subject attended a counselling session with his mother in which he disclosed that 3 weeks prior on a Saturday morning the subject and the suspect have had an argument over the state of the subjects bedroom. The suspect has become verbally abusive and has grabbed the subject with one hand by the neck with a firm grip. The subject was not injured.
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Some of the allegations in the past have been unfounded or the actions justified as appropriate action/discipline. The most recent one does not detail any excessive force or violence, but did include some physical discipline of the male child…having been grabbed by the back of his neck to get compliance. Nil injuries or excessive force disclosed.
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No action required by SOCIT. CP may feel the need to engage with the father to discuss current parenting style/discipline methods etc and a general welfare assessment of the children in the context of being back in their regular life patterns of home and school.”
Emphasis added.
The Queensland Police Service have also provided a “Street Check Summary” dated 1 July 2020 about the reported incident on 4 July 2019. The Summary states:
“The informant attended the Suburb H police station counter to report her 12 year old son had been assaulted by his father at the father and sons residential address in Victoria. The alleged assault is said to have taken place somewhere between the hours of 08.00hrs and 11.00hrs on Saturday 15th June 2019. The nature of this alleged assault is that the father has grabbed the son by the throat. There has been no medical attention sought by the informant/son.”
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“The informant however indicates that the son is currently undergoing counselling for psychological injuries.”
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“The counselling was commenced approx. in Sep 2018, in relation to another alleged assault that was reported by the informant.”
The DHHS Summary states that, for this incident, SOCIT did not proceed with an investigation.
February and April 2020
On or about 26 February 2020, DHHS received a report “due to concerns for the safety and well-being of the children in the care of Mr Banham”. This incident is confirmed in a Full Response Report which states:
“on Friday night 21/2/2020 the mother was driving Y to McDonald to get dinner. Y disclosed that there was an incident on Thursday (20/2/2020) afternoon-evening. Y stated that he got into trouble with the father because a grey school sock was found by the father in the general laundry basket instead f the school uniform laundry basket.
Y stated that “dad got angry”. Y told his father that it wasn’t him. The father screamed at Y and grabbed him by the shoulders. The father slammed Y against the wall and held him there. The father screamed and swore in his face. The father was so close that he was spitting all over Y whilst swearing at him. The father was saying things like ‘fuckin’ shit’. There were no injuries sustained. Y started crying but the father didn’t stop. The father kept yelling at him. The mother asked X about it. X was in another room, she said she heard it but didn’t see it. The father stormed off after the incident and didn’t apologise.”
In relation to this particular report, a Disclosure Interview was conducted with X and Y on 4 March 2020. The Full Response Report states that during the Disclosure Interview:
“Inappropriate discipline disclosed; Subject [Y] not happy at home and wanting to live with mother in QLD;…Suspect [Mr Banham] spoken to and acknowledged issues and stresses and agreed to engage with referrals. LEDR submitted for Unlawful Assault.”
The DHHS Summary of the reported incident states:
“Y disclosed that Mr Banham was often angry and that he was verbally abused by his father, as well as historic inappropriate physical discipline. X disclosed Mr Banham being angry, but did not disclose physical violence, however had been verbally abused by Mr Banham. SOCIT spoke with the father in relation to the incident and agreed to further supports and a referral was processed.”
On 14 April 2020, DHHS received the most recent report. The DHHS Summary of the incident states:
“…the Department of Health and Human Services received a report in relation to concerns that the children were at risk in the care of Mr Banham given allegations that Mr Banham has been physically and emotionally abusive towards them on several occasions. It was reported that these incidents have been reported to Child Protection and Police. It is confirmed that the concerns raised in this report have been reported to Child protection in the past. There appears to be no new information to suggest that the children are at significant risk in the care of either parent.
It is imperative that the children are protected from the parental acrimony, and that both parents can come together to ensure that their focus and shares goal is for the emotional health and wellbeing of the children.”
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The matter remained at the Child Protection Intake and Assessment phase and closed on or around 22 April 2020.”
Emphasis added.
Consideration
For the reasons set out below, I am not persuaded that it is in the best interests of the children that an order be made that they attend upon a consultant for the purpose of obtaining a family report in order to further ascertain the views of the children so as to assist the court in determining the question of whether the application to amend the final order should proceed.
In my view the evidence presently filed does not provide a sufficient basis for the court to embark on a hearing of an application to set aside the Final Orders and to substitute an order that the children live with the mother in Queensland and spend time with the father in Melbourne. I accept that there has been a change in circumstances to the extent that the children have grown older, have a greater capacity to express independence and that their own lives have become more complicated as a result of attending high school and being involved in a range of activities.
Whilst the views of 13 year-old children are significant, they are not determinative, particularly where there is a strong suggestion from the DHHS that the major concern for these children is the lack of a cooperative relationship between the parents. For these reasons I think it is unlikely, on the material filed by the mother (taken at its highest), that the Court will make orders that the children live with the mother in Queensland and spend time with the father. The children are apparently settled in school in Melbourne and there is no suggestion that they do not have friends and supports here. A change of the kind sought by the mother would involve these children moving to new schools in a new city and being taken out of the network of friends that they have made through sport and school. The change to the Final Orders sought by the mother is major and given the circumstances in making the final order, it is unlikely that a Court would make that order on the basis of the evidence filed.
The father has been criticised in this proceeding for filing a large number of statements/affidavits from people who know him and his children attesting to his skills as a parent. That he has done so, particularly when he was self-represented, is an understandable response to the criticism that he has been subjected to. It should be borne in mind that the father assumed primary care of the children at a time when the mother was unable to do so because of significant health issues. He has maintained that care and has complied with orders in relation to the mother's time since the Final Orders were made.
There is a body of evidence before the Court that the father is caring for his two children but there are occasionally ructions which lead to the children being unhappy. I do find that the mother has been actively pressing for the children to live with her for a number of years. I also get a sense that there is an aspect of her engagement with the psychologists in Queensland, the DHHS, the Victorian Police and Queensland Police Service as described above, is to provide an evidential basis to make an application, in particular the reports made in February to April 2020. The reports from DHHS and the Police do not recommend any intervention with this family and the strong recommendation from DHHS is for the parents to focus on cooperative parenting. The father has been the subject of a number of reports by the mother and these reports have been followed up by the DHHS and Police. No action has been taken for comprehensible and cogent reasons set out in the DHHS documents produced to the Court.
The evidence does not support a finding that these children are not being cared for by their father. Raising teenagers is not easy. They are at an age where they are individuating and are less amenable to calm direction. The father is plainly not a perfect parent (as if such a thing exists) and plainly he occasionally struggles. There is, however, evidence to support a finding that the children are properly cared for, and are supported, both in their home and school life. This is not a case of a drug or alcohol addicted father who has not actively parented his children or deprived them of opportunities within the community. The evidence filed indicates that the father supports the children in their schooling and in extracurricular activities. The reports from the children’s school are positive and the father is active in addressing some learning difficulties that Y has. The father has admitted losing his temper with the children and he must check himself and develop strategies to address this. Disputes between parents and teenage children over such things as the use and control of technology – particularly in instances including the use of the internet – is a common feature of cases that come before the Court and plainly many parents struggle in dealing with it. The same can be said for disputes about menial tasks that occur in the day-to-day running of a household, such as sorting laundry items or stacking the dishwasher. Losing one’s temper and resorting to physical control of the child is plainly fraught and the father appears to be aware of this.
It was the case when Final Orders were made in 2015 that there would always be issues involved with the transitioning of the children between the parents, particularly as the mother lives interstate as a result of decisions that she made. The mother recognised this and addressed that issue specifically in her affidavit sworn 13 January 2015 in support of the parenting orders. She also recognised that her son might benefit from psychological assistance coping with changes, such as that his mother would no longer be living with him. Y expressed a wish to live with his mother when the Final Orders were made in 2015. He has continued to express that view.
The fact that the father has admittedly lost his temper on occasion and caused the children to be upset, is not a sufficient basis exposing these children to the harm caused by further litigation between these parents, particularly where it seems that neither parent has the financial capacity to afford the litigation. The father has given evidence that the mother has contributed about $4200 to the upkeep of the children over the last seven and a half years. The mother deposes in her affidavit sworn 5 June 2020 at [34] that:
“I travel to Melbourne each month and pay for flights and accommodation for a weekend, which is significant. I also pay for the children’s flights to Queensland each school holidays. I am working with my partner as a tradesperson, and I have had to borrow extensive funds from my father to meet these expenses.”
The mother puts it that she has made contributions other than financial ones in that period. In her affidavit sworn 5 June 2020, the mother deposes at [34] that:
“I pay for the children’s flights to Queensland each school holidays.
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I pay for doctors, optometry and specialist appointments for the children in Brisbane as necessary, and pay for clothing and personal items for them. I also paid a total of over $2,300 for the children’s schooling for 2020. Some of this was an overpayment and Mr Banham received the refund. I did not seek he reimburse me. I also paid for half the cost of the children’s laptops in primary school.”
However the fact remains the monetary contributions outlined by the mother over the period of seven and a half years are not significant given the costs of caring for children on a full-time basis and it suggests that the mother has very limited funds, which is supported by her comments in her affidavit. I assume that if the mother had more funds available, she would have made a greater financial contribution, as she is a caring parent. The father has given evidence that his own employment is not stable, and that he is under financial stress.
The mother has not provided any independent evidence of her current health such as would inform a family report writer or the Court. The mother’s health was, and is clearly, a significant issue and was the principal focus of her affidavit in support of the orders sought in the original parenting application.
Further I am concerned that to embark on a consideration of a change of residence in the current circumstances arising from COVID-19, creates real difficulties for the court and the parties. The children have been living with the father in a lockdown environment, where it is likely that everybody will be completely fed up with one another and the prospect of a change of residence may appear as a blessed relief to the children irrespective of the care given to the children by their father. The children may miss having spent time in person with their mother, which might naturally have effect their responses. The circumstances thrown up by the current health crisis are likely to have a distorting effect.
I accept that a skilled and experienced family consultant may be able to factor these particular circumstances into an assessment, however significant concerns remain for the Court. It is pivotal to my decision that the mother’s application is so significant. Drawing on what was said in Marsden at [47], given the history of the matter and the evidence filed, I think it unlikely that the Court would make the orders sought by the mother even if both children expressed to a family report writer the view that they both wanted to live with the mother. In those circumstances, I consider that the interests of the children are more powerfully served in dismissing the mother’s application at this stage rather than allowing it to proceed. It may of course have been a different matter if the mother had relocated to Melbourne and the proposed change of arrangements were not so dramatic.
In my view it would be more appropriate if any further consideration of the residence of the children is to be undertaken, that it be done in circumstances where the children are not subject to lockdown, not long out of lock down or have recently been subject to travel restrictions where they cannot spend time with their mother in Queensland. I do not encourage a further application, however these applications are interlocutory in nature and unless the application is an abuse of process or an applicant becomes vexatious, an application to revisit a final parenting order may be made: see Granville & Blakeslee [2017] FAMCAFC 162 at [59]; Ralton & Ralton [2017] FAMCAFC 182 at [41]. Whether and how the application proceeds to hearing, depends on the nature of the orders sought and material in support of it being considered against the guidelines established by Rice and Asplund.
In my view, the best interests of the children would be best served by the mother and the father supporting each other in the care of the children and working to develop a more cooperative approach to parenting these children within the framework of the Final Orders that were agreed and made for good reasons. If assistance is required from professional services then, in my opinion, that assistance is best obtained outside of proceedings.
For these reasons I dismiss the application made on 5 June 2020 in accordance with the orders sought by the father.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 3 September 2020
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