Bashir & Ghani (No 2)
[2021] FCCA 253
•17 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Bashir & Ghani (No 2) [2021] FCCA 253
File number(s): PAC 4940 of 2016 Judgment of: JUDGE OBRADOVIC Date of judgment: 17 February 2021 Catchwords: FAMILY LAW – parenting – where final orders were made on an undefended basis against the mother – where mother seeks to commence fresh parenting proceedings – consideration as to whether there were changed circumstances to justify a new hearing – principles in Rice & Asplund [1978] FamCA 84 discussed – best interests of children – application dismissed. Legislation: Family Law Act 1975 (Cth), Pt VII Cases cited: Judd & Pryor (No.2) [2020] FamCA 934
King & Finneran [2001] FamCA 344
Rice & Asplund [1978] FamCA 84
Poisat & Poisat [2014] FamCAFC
SPS & PLS [2008] FamCAFC 16Marsden & Winch [2009] FamCAFC 152
Number of paragraphs: 43 Date of last submission/s: 5 February 2021 Date of hearing: 5 February 2021 Place: Parramatta Appearing for the Applicant Ms Lam Solicitors for the Applicant Fay Rose Legal Counsel for the Respondent Mr Leidermann Solicitors for the Respondent Falzon Legal Pty Ltd ORDERS
PAC 4940 of 2016 BETWEEN: MR BASHIR
Applicant
AND: MR GHANI
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
17 FEBRUARY 2021
THE COURT ORDERS THAT:
The Initiating Application filed on 25 June 2020 is dismissed. Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Bashir & Ghani (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC
On 22 November 2017, the Court made final parenting orders concerning the two children of the parties, X born in 2012, and Y born in 2015. The final orders were made on an undefended basis as the children’s mother disengaged from the proceedings.
On 25 June 2020, the mother commenced parenting proceedings. She moves the Court for orders that the children live with the father but spend time with her, initially on a supervised basis and then 4 nights per fortnight, during school holidays and on special occasions. The mother also asks the Court to make orders placing the children’s names on the Airport Watch List.
On 7 December 2020, the father filed a response, moving the Court to dismiss the mother’s application and for costs.
FINAL HEARING AND ORDERS MADE IN NOVEMBER 2017
In its short ex-tempore judgement delivered on 22 November 2017, the Court found as follows:
(a)That the children have been living with the father since late 2015/early 2016;
(b)That the mother has had very little involvement with the children since they commenced living with the father;
(c)That the mother has not shown appropriate capacity to parent or care for the children or to meet any of their needs;
(d)That the mother seems to have a drug dependency problem;
(e)That the mother was observed to have been using illicit substances;
(f)That there are reasonable grounds to believe that the mother has engaged in family violence;
(g)That all of the children’s physical and emotional needs have been met by the father, who is a caring and loving parent;
(h)That the contact centre, where the parties had undertaken the intake process, had deemed that supervised contact was not appropriate out of concerns arising from the mother’s behaviour;
(i)That X was anxious and frustrated about spending time with the mother;
(j)That it was in the children’s best interest that there be no orders as to time between the children and the mother;
(k)That the father and the children had travelled to Country B previously and had returned to the jurisdiction; and
(l)That it was appropriate for the children’s names to be removed from the Airport Watch List and for the father to be permitted to travel internationally with the children without the need for the mother’s consent for the travel or the issue of passports for the children.
Whilst these findings in 2017 were made on an undefended basis, they are nevertheless findings of the Court. The mother never sought to have them set aside.
RELEVANT LEGAL PRINCIPLES
As these are parenting proceedings they are to be determined by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Given that there are already final orders in place in respect of the children, the Court is firstly concerned with whether it should entertain the application at all.
In Rice & Asplund [1978] FamCA 84 (“Rice & Asplund”); (1979) FLC 90-725 at 78,905 the Full Court held:
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 the material on which the 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 that…there is some changed circumstance which will justify such a serious step, some new factor which was not disclosed at the previous hearing which would have been material…It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing…
The rule in Rice and Asplund is of long-standing, has been consistently recognised and applied both by the Full Court of the Family Court, the Family Court and this Court, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently (Poisat & Poisat [2014] FamCAFC 128 (“Poisat”) at [8] and [13]). It is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course (SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 at [73]).
The purpose of the rule is to protect children from exposure and involvement in further unnecessary litigation (King & Finneran [2001] FamCA 344; (2001) FLC 93-079 at [44] and [64]).
The Court noted in its reasons for judgement delivered on 22 November 2017 that the father had through his Counsel, indicated to the Court that if the mother brought a fresh application for parenting proceedings it was not his intention to raise the Rice & Asplund threshold in any future proceeding. The father is of course not bound by any earlier intention and there can be no estoppel argument in this instance.
It is a matter for the Court to determine, having regard to the children’s best interest, whether to grant the relief sought in the Response as a preliminary issue. As held by the Full Court the question of whether there has been a change in circumstances of sufficient magnitude to warrant the revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat at [39]-[41], cited in Judd & Pryor (No.2) [2020] FamCA 934 (“Judd & Pryor”) at [17]). In any event, the mother has consented to the matter proceeding in respect of the Rice & Asplund issue as a threshold issue.
As recently held, in order to determine the materiality of the asserted change in circumstances, consideration should be given to:
(a)the past circumstances, including the reasons for the original decision and the evidence upon which it was based;
(b)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; and
(c)if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause.
(Marsden & Winch [2009] FamCAFC 152 at [50], cited in Judd & Pryor at [18])
WHAT HAS BEEN HAPPENING SINCE FINAL ORDERS WERE MADE
In support of her application for final orders, and therefore on the threshold issue, the mother relied on two relatively short affidavits and a number of exhibits. The mother’s evidence is very scant in respect of addressing her current circumstances and it does not address many of the findings of this Court made in November 2017. It does little to address any changed circumstances.
As noted earlier, the reasons for judgment were given orally on 22 November 2017. There has never been a request by either party for settled reasons. There is no evidence that the mother ordered the transcript of the final hearing or enquired as to the reasons for judgment. It was shortly before the publication of these reasons for judgement that the Court, of its own motion, settled and published its 2017 reasons. Had a request for the reasons for judgement been made by either of the parties, those reasons would have been published earlier. It was incumbent upon the mother to ascertain what had occurred at final hearing in November 2017 so that she could properly bring this application and address all of the relevant matters.
The father relied on two affidavits and a number of exhibits.
Neither party was cross-examined, although they were each given the opportunity of doing so at the hearing.
The mother’s evidence speaks of:
(a)allegations of family violence during the parties’ relationship;
(b)marijuana use in or around 2015 and 2016 of “2-3 joints per day”;
(c)a denial of use of any other drug;
(d)apprehended domestic violence proceedings in 2016;
(a)having two more children, C born in 2018 and D born in 2019 and C being the subject of care proceedings and the subject of a care order;
(b)participating in random urinalysis testing through the Department of Communities & Justice and returning negative results;
(c)participating in hair follicle testing through the Department of Communities & Justice and returning negative results; and
(d)currently residing with her parents and younger siblings in a 6 bedroom home.
The father’s evidence is that:
(a)He has been in a new relationship for the past four and half years. The father’s partner has an 8 year old daughter, who the children have a positive relationship with;
(b)He has now moved to Western Australia with his partner, her daughter and the children;
(c)The children are doing well, they are healthy and happy;
(d)Prior to the orders in 2017, he had gone through 3 years of litigation which he had to personally fund and is still paying off;
(e)In about mid-2020, the mother attended E School and pulled X out of his classroom. This was achieved by misrepresenting to the school that there were new and different parenting orders in place allowing her to see X; and
(f)The mother has made threats towards the father which have been reported to the Police and in respect of which the Police are taking action against the mother.
The mother’s evidence is entirely silent on any criminal matters, including proceedings which are next listed before the Suburb F Local Court on 22 March 2021. The proceedings before the Local Court relate to charges of stalk/intimidate as a result of the father’s complaint made to the Police where she allegedly, on 22 July 2020 called the father, demanded $10,000 to discontinue the parenting proceedings and said to the father she would “fuck [him] up” and to “watch [his] back.” The mother also did not advise the Court of the Provisional Apprehended Domestic Violence Order (“ADVO”) issued on 8 August 2020 for the protection of the father, which has also been adjourned to 22 March 2021 before Suburb G Local Court.
Next, the mother says in her affidavit:
The last time that I spent time with the children was in or around October 2017. I have tried to keep in contact with them but this has been blocked by the father. I even attended the children’s school, E School, in the hope of finding out how they were doing but was not able to find out any information. When the father found out that I had attended the school he told the Principal not to let me have any information about or contact the children.
The mother does not tell the Court that her attempt at seeing the children at E School was fairly recent, and at or around the time she commenced these proceedings.
The father tells the Court of the impact on X of the mother recently attending his school, and in particular that X was upset and crying and that he was extremely anxious and worried. According to the father, the mother had told X that she would be taking him and Y away with her. When the father told X that the mother wanted to spend time with them, X replied with “It’s now time for revenge. I want to break her house like she did to mine”. The father believes that this is a reference by X to an incident where the mother was smashing plates in front of the children, and the father had called the police. It was submitted on behalf of the mother that the changed circumstances warranting the Court entertaining the mother’s application for parenting orders are that the mother now has two more young children, and that Y and X should have the benefit of a relationship with them.
The father further tells the Court of the impact the previous parenting proceedings had on him, not only financially but emotionally. The father says that “The whole time I spent going through court with Mr Bashir left me psychologically scarred.”
Discussion was had between the mother’s representative and the Court as to any other changed circumstance, when it was initially suggested that the mother is no longer using any illicit substance and that this was a changed circumstance. On her sworn evidence in support of her current application, the mother says that she only smoked marijuana in or around 2015 and 2016 (not 2017 when orders were made), being 2-3 joints per day, and that she did not use any other illicit substance, which is different to the Court’s 2017 findings.
The report in support of application initiating care proceedings (exhibit 4 herein) indicates that the Department had received 4 risk of harm reports between March 2018 and May 2018 in relation to the mother’s lack of antenatal care, substance abuse which was primarily alleged to have been methamphetamine (ice) and homelessness. Caseworkers had observed the mother at the time to be moving slowly and to be slurring her words, reports had been made about her and her partner regularly smoking drugs from a glass pipe which had led to her eviction. Even then, the mother denied drug use. The child C, (referred to as C in exhibit 4) was born at 35 weeks gestation. After Departmental involvement with the mother, C was assumed into care, and ultimately restored to the mother’s care in 2019.
It is clear that at the time that C was taken into care, the Department had significant concerns for the mother’s capacity to parent, there were concerns for parental drug use and risk of homelessness. Consequent to C being assumed into care and as part of the restoration process, the mother has undergone drug testing, both by way of urinalysis and hair follicle testing.
Tendered in the father’s case was an extract from an affidavit (from the care proceedings concerning C) raising concerns as to the validity of the hair follicle testing results as the mother’s hair was dyed on the occasion the test was undertaken. That exhibit ultimately reads “Community Services do not have concerns that Ms H intentionally bleached her hair in anticipation of hair follicle testing”. It appears this conclusion was reached on the basis of the case worker observing that the mother’s hair colour “appeared to remain the same dark colour” since the case worker first met the mother in April 2018. The case worker’s opinion as to the mother’s intention is not relevant and of no weight.
The hair follicle testing was conducted on 31 January 2019 and it is noted on the report that the hair appears to be dyed. It appears from exhibit 5 that if hair is coloured “on a regular basis this can impact on hair follicle testing, particularly if the bleaching is used…” There is no expert evidence to interpret the hair follicle test results or to offer any opinion one way or the other.
The hair follicle testing, at its highest, shows that for the period April 2018 to January 2019, no illicit substances were detected in the mother’s hair sample. Likewise, the urinalysis reports show at their highest, that on the days the samples were collected between 29 June 2018 and 20 July 2018 no illicit substances were detected in the samples provided.
A further hair follicle test conducted by the mother in November 2020 returned a positive test for opiates (codeine), which is said to be the result of a prescription for Panadeine Forte. The level of the codeine found in the sample is significantly higher than the cut-off. The mother says she was taking the medication only as prescribed.
COURT’S DETERMINATION
The last time that the children spent time with the mother was in or around mid-2017. At the time of writing this judgement, it has been almost 4 years since the children last spent time with the mother. X was a little over 4 years old then, and Y was a little over 2 years old. It is highly unlikely that Y would have any memories of his mother, and it appears from the father’s evidence that X’s memories of the mother are not positive.
At the time of the November 2017 orders, the mother had totally disengaged from the parenting proceedings and from the children. She had in November 2016 consented to orders for the children to live with the father and for them to spend supervised time with the mother. That time did not go ahead as the mother was not deemed suitable by the contact centre. The mother had been observed by members of her extended family to be using illicit substances. Her volatile behaviour and lifestyle had placed the children at risk.
The mother has not explained in the evidence presently before the Court, with any depth or insight, what the reasons were for her actions in respect of the children in 2017 and how her situation is now different, if not improved. The mother only deposes as follows:
The conflict with the father and the AVO had a huge effect on me. I found it very difficult to deal with. It troubled me that the children were caught in the middle of the conflict. I felt that I needed to walk away to stop the conflict. I disengaged from the family law proceedings and final orders were made on an undefended basis.
There are currently proceedings against the mother in the Local Court as a result of her reported behaviour in July 2020. There is presently an ADVO for the protection of the father.
The mother now has two more infant children. The fathers of those children do not appear to have any involvement with those children. Very little is known about the mother presently. She is living with her parents, who are not witnesses in her case. Her current living circumstances appear not to be dissimilar to her circumstances in 2017, when her step-mother gave evidence in the father’s case.
The mother asserts that she does not use any illicit substances. There is presently evidence which would go against any finding that the mother uses illicit substances. It appears that she does not.
The father and the children are presently residing in Western Australia. There is little likelihood of the orders as sought by the mother of being made. Indeed such orders are clearly impractical. Submissions were made that given the father and the children now reside in Western Australia, the mother would be seeking orders different to those in her application, however, there is no amended application before the Court.
The mother may well argue that she is aggrieved by not knowing prior to the hearing that the father had moved to Western Australia. His evidence as filed early in these proceedings, indicated a clear intention to relocate in 2020. Even after the filing of such evidence, the mother did not seek to amend her application or to turn her mind to putting on evidence as to how the children living so far away would impact her case.
The mother’s argument that the significant change in circumstances are her two youngest children which the subject children will not have the benefit of having a relationship with is problematic. The children do not have the benefit of any relationship with those half-siblings at present. There is a significant unknown as to whether they would ever develop any relationship with those half-siblings, and what the ultimate benefit might be to them of knowing their little brothers. It is inferred that there would be some benefit.
Given the length of time which has passed since the children last spent any time with the mother, their current circumstances, the difficulties the father has faced as a result of the proceedings and the likely impact on him as the children’s primary care giver (indeed sole care giver as far as the parents are concerned), the practical difficulties in respect of any time occurring, and at its highest the need for significant supervised time if any time was ultimately ordered (and how this might be catered for given that the parents live some 5000km apart), there is not a real likelihood of the orders being varied in a significant way as a result of any new hearing.
For reasons noted earlier, there is further a significant potential detriment to the children which fresh litigation would cause.
On balance, the mother’s application should be dismissed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 17 February 2021
2
6
0