BELLER & AHERN

[2014] FCCA 522

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELLER & AHERN [2014] FCCA 522

Catchwords:
FAMILY LAW – Children aged 11 & 5 – parties and children share a (country omitted) background – proceedings commenced by mother in period immediately following parties’ separation and in circumstances in which father and children had travelled to (country omitted) – (country omitted) not a signatory to Hague Convention – mother alleged that she had not consented to children’s overseas travel – children returned to Australia without significant assistance from father – thereafter father spent professionally supervised time with children – family report ordered – final orders made in respect of parenting arrangements on 4 June 2013 – orders made ostensibly with the consent of each parent – orders not consented to by independent children’s lawyer – orders envisaged continued professional supervision of time and periods involving older child to be subject to her wishes – independent children’s lawyer not in favour of children spending any time with their father – orders consistent with recommendations of family report – father sought to re-open proceedings approximately six weeks after final orders made – father alleges he did not understand implications of the order due to limited English language skills – father also seeks parenting test in respect of older child – sufficiency of reason justifying re-opening of case – rule in Rice & Asplund – best interest of children – matters to be considered in respect of parentage testing.

Legislation:

Family Law Act 1975, ss.4AB; 60CA; 60CC; 64B(2); 68LA; 69W

Rice & Asplund (1979) FLC 90-725
Beller & Beller [2012] FMCAfam 1493
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Brianna v Brianna (2010) 43 Fam LR 309
TNL & CYT [2005] FamCA 77
Tyron v Clutterbuck  (2007) FLC 93-332
CDJ v VAJ (1998) FLC 92-828
In the Marriage of McEnearney (1980) FLC 90-866
Bennett & Bennett (1991) FLC 92-191
SPS & PLS [2008] FamCAFC 16
King & Finneran (2001) FLC 93-079
Amador & Amador (2009) 43 FamLR 268
Baranski & Baranski & Anor [2010] FMCAfam 918

Applicant: MR BELLER

Respondent: MS AHERN

File Number: ADC 1876 of 2012

Judgment of: Judge Brown

Hearing date: 5 February 2014

Date of Last Submission: 5 February 2014

Delivered at: Adelaide

Delivered on: 24 March 2014

REPRESENTATION

Counsel for the Applicant: Mr Greer

Solicitors for the Applicant: Adelaide Lawyers

Counsel for the Respondent: Ms Lewis

Solicitors for the Respondent: SE Lawyers

ORDERS

1. The application filed on 18 July 2013 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Beller & Ahern is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1876 of 2012

MR BELLER

Applicant

And

MS AHERN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings are mainly concerned with what lawyers invariably call “the rule in Rice & Asplund”.[1]  There is no absolute rule, but the case of Rice & Asplund recognises that it is neither helpful to parents nor beneficial to their children that there should be continual litigation about the care of children.  There comes a point when “enough is enough”. 

   [1]  See Rice & Asplund (1979) FLC 90-725

2. For that reason, a court will not readily re-open a case concerning parenting orders recently made.  There needs to have been a substantial change in circumstances before a court will do so.  This is the basis of the rule in Rice & Asplund.

3. The parties to these proceedings are Ms Ahern (formerly Beller) “the mother” and Mr Beller “the father”.  They are the parents of X, a girl born (omitted) 2002 and Y, a boy born (omitted) 2008.  The parties married in (country omitted) on (omitted) 2000.  They finally separated on 17 May 2012.

4. Proceedings began between the parties in highly unusual circumstances on 18 May 2012.  At that stage, the mother sought to restrain the father from removing the children from Australia and taking them to (country omitted).  It later transpired that the children and their father had left Australia on the mother’s case without her knowledge on that very day. 

5. (country omitted) is not a signatory to the Hague Convention on International Child Abduction.  In these circumstances, the mother feared that she might never see the children again.  Needless to say, the proceedings have been infused with a significant level of tension ever since and there is little trust or goodwill between the parties. 

6. Unexpectedly, the father returned to Australia later in 2012, but came without the children who remained in (country omitted) in the care of paternal relatives.  When this information came to the attention of the mother, with the assistance of court orders, steps were taken to engineer the return of X and Y to Adelaide and the care of their mother. 

7. Since that time the proceedings have broadened to include arrangements for the division of matrimonial property and to inquire as to what time, if any, the children should spend with their father.  In this latter context, it was ordered that the children be independently represented and a family report prepared. 

8. In an earlier judgment delivered ex tempore on 18 December 2012, which explained my decision to have the children to be independently represented and to order the preparation of a family report, I summarised the history of the matter up to that stage as follows:

   “The mother commenced proceedings in this court on 18 May 2012.  On that day she prepared her own application, seeking that there be a recovery order made in respect of the two children concerned.  As I recall, she made her application in the afternoon of 18 May, which was a Friday.

   Given what she had said to the staff at the counter of the court, when she had filed her application regarding its urgency, the matter was listed before me straightaway at 4.30 pm on that day.  

   In her submissions to the court, it was the mother’s position that she had reason to believe that the husband had the two children in his possession; had been behaving secretively; and was apparently intent on leaving this country for (country omitted) with the children.  (country omitted) is not a signatory to the Hague Convention on International Child Abduction.  In these circumstances the mother had not been able to personally serve the application on the husband.

   On that basis, I made an ex parte order restraining the removal of the children from this country and directed that their names be placed on the watch list maintained by the Australian Federal Police at each point of departure from Australia.  I was also persuaded to make an interim order that the two children live with the mother at the parties’ former home in Property R.

   The proceedings were adjourned until the next court date, 21 May.  On that occasion it became apparent that the children had, indeed, left the country.  Given that (country omitted) is not a signatory to the Hague Convention, the mother had no recourse to assistance from the Australian Government to secure the return of the children to this country via a process of engagement with the civil authorities in the (country omitted).

   At that stage, from my perspective, it was uncertain what would happen next and I had grave concerns that the children may not interact with their mother for a considerable period of time.  At that stage it was the mother’s position that she had been deceived by the husband about his intention to travel with the children to the (country omitted).

   The next significant thing which occurred was in June of 2012.  On that occasion, in particular on 21 June 2012, the mother had reason to believe that the husband had returned to the country alone, without the children. 

   On that basis, through her counsel at the time, Ms Pyke QC, the mother made an application that the court injunct the husband from leaving Australia, as a means of seeing if such an order would result in the attendance of the husband before the court so that he could provide information about the whereabouts of the children and ultimately secure their return to Australia.

   Earlier, the mother had applied to have the Australian passports on which the children had travelled and which were in the husband’s possession cancelled and fresh ones issue and which she controlled.  She was concerned at information she had received from the (omitted) Consulate in Adelaide that the husband had previously applied for (country omitted) identity papers for the children.

   The husband was served with that order.  In fact, my understanding is that he became aware of it when he was in the process of leaving this country to return again to (country omitted).  I am, however, not completely certain about that. 

   Anyway, on 28 June 2012, with the apparent acquiescence of the husband, an order was made that the husband do all things necessary to return the two children to their mother, who in the circumstances elected to go to the (country omitted) to  retrieve them.  The husband prepared a letter, written in (language omitted), addressed to his mother, which was directed to securing this purpose.  In the meantime the order restraining the husband’s departure from Australia was maintained.

   On 1 July 2012, the mother and her mother travelled to the town of (omitted) in the (country omitted), where she was able to collect the children, who were in the care of the husband’s mother and sister.  She returned to Australia, with the children shortly afterwards.  She has paid the necessary travel expenses, which from her perspective represent a very significant sum.  Ultimately, she seeks reimbursement from the husband for the travel costs so incurred.

   Thereafter the parties have both been in Australia.   Against this background, the court has been called upon to make arrangements for the on-going parenting of the two children.  The husband filed a formal response to the mother’s urgent application on 29 June 2012.  He seeks orders that the parties have equal shared parental responsibility for the two children.  He also seeks an order which would authorise him to take them outside of Australia for the purpose of holidaying in (country omitted) on condition he provides security in the sum of $5,000.00.

   Subsequently each of the parties has amended their respective applications to seek the settlement of matrimonial property.  The most significant asset appears to be the former family home situated at Property R.

   Given the history of the matter to date, it is the mother’s position that she remains traumatised by what has occurred and she has no trust, whatsoever, in the husband.  It is her case that she remains fearful that the husband may again attempt to secret the children outside of Australia.”[2]

   [2]  See Beller & Beller [2012] FMCAfam 1493 at 3-17

9. The father has been legally represented since his return to Australia by three separate firms of solicitors.  The mother has been represented by the same solicitors throughout.  During the course of the litigation, it became apparent to all concerned that the pool of property available to be divided between the parties was modest, consisting of limited equity in the parties’ former family home and some superannuation. 

10. On the mother’s case, the property was worth approximately $220,000.00 and was subject to a mortgage of around $210,000.00.  She had superannuation to the value of $27,000.00.[3]  The father deposed that he had superannuation following a period of employment with (omitted), but did not know its extent.[4]  Otherwise, he deposed that the value of his other assets were unknown, as was the extent of his liabilities.  He ascribed his income as nil.[5]

    [3]  See mother’s statement of financial circumstances filed 29 August 2012

    [4]  See father’s affidavit filed 3 August 2012 at paragraph 69

    [5]  See father’s statement of financial circumstances filed 3 August 2012

11. No formal valuation of the former family home has been provided to the court.  The father’s view however is that it is greater in value than the mother then asserted.  However, it appeared to be common ground that the vast majority of the property’s purchase price had been borrowed and the mother had received a significant redundancy package when she left her employ at the (omitted) in 2009, which had been used to improve the property. 

12. It was also apparent that the mother would be the children’s main provider of care going into the future and would likely have little, if any, financial support from the father in this regard.  It was also common ground that Ms Ahern had a pressing need for the accommodation provided by the former family home for herself and the children.

13. At an earlier stage of the proceedings, it had been ordered that Mr Beller reimburse Ms Ahern the cost incurred by her in travelling to (country omitted) to retrieve the children.  She had been assisted by her own mother in this regard.  From the mother’s perspective, the sum involved was significant. 

14. This was the background to the parties, ostensibly at least, agreeing on a resolution of the property matters between them.  It was agreed that Mr Beller would transfer his interest in the Property R property to Ms Ahern, who in turn would indemnify him in respect of the jointly held mortgage on the property and all other outgoings related to it. 

15. In addition, Ms Ahern agreed to forgive the father the moneys due to her arising from the children’s return to Australia.  In addition, a split was made out of the mother’s superannuation in an amount of $11,680.00 in the father’s favour. 

16. Orders to this effect were made by the court on 10 April 2013.  At that time each party was represented by counsel.  A minute of the orders made had been prepared by the mother’s solicitors and earlier signed by the father in the presence of his solicitor.  No indication appears on that minute that it had been translated for the father.  Indeed none of the documents prepared on his behalf up to this stage indicate this to be the case.

17. I was satisfied on the evidence presented to me that the orders of 10 April 2013 represented both a just and equitable as well as a pragmatic outcome for the parties.  I was satisfied that the parties’ assets were limited and it was likely to be helpful to Ms Ahern that she and the children have a secure source of accommodation and this aspect of the proceedings was finalised. 

18. In July and August of 2012, the parties agreed that the next step forward in respect of the children’s issues was for the father to spend limited time with the children concerned in the professionally supervised setting of a children’s contact centre.  As a consequence of this agreement, the court has been provided with a series of reports from the (omitted) Children's Contact Centre regarding the father’s interaction with X and Y at this centre. 

19. It was following this series of supervised visits that the judgment earlier referred to was delivered.  The father wished to progress to a stage where his time with X and Y could be supervised by lay persons. In this regard he proposed a married couple of his acquaintance.  The mother resolutely opposed this step, not only because of the circumstances surrounding the children’s travel to (country omitted), but also because she asserted that the father had been frequently violent towards her in the past. 

20. For reasons provided to the parties at that time I elected to take a cautious approach.  In this context, I determined that the next step forward was to commission a family report to examine the nature of the children’s relationship with each of their parents particularly whether either of them had been psychologically traumatised in some way, by being taken to (country omitted) and removed from their mother’s care for a period of some weeks. 

21. I also deemed it appropriate that the children be independently represented, given the complex circumstances of the case which included not only significant cultural issues but also serious allegations of family violence made by the mother.

The family report

1. The family report was prepared by Ms L, a psychologist and family consultant attached to the court’s Adelaide registry.  She interviewed the parties and observed each of them interacting with the children concerned on 28 February 2013.  Ms L has just under twenty years’ experience as a clinical psychologist.  She has worked in the past in the child protection field. 

2. Mr Beller attended the conference with Ms L without an interpreter.  In her report, Ms L records verbatim comments made to her by Mr Beller.  She did not report any necessity for an interpreter to assist her either in interviewing Mr Beller or directing him in respect of the family report process. 

3. In her interview with Ms L, the mother gave an extensive history of having been the victim of serious domestic violence at the hand of Mr Beller.  For his part, Mr Beller indicated to Ms L that he “had never touched her, never ever” and that there was “no violence” in the parties’ relationship with one another.  Ms L described Mr Beller’s denials as being “vehement”. 

4. Ms L was also aware that one of the central issues in the case concerned the nature of Mr Beller’s travel to (country omitted) with the two children concerned and whether the circumstances of this travel had had any traumatic emotional consequences for the children. 

5. In this context, Ms L reported her discussion with Mr Beller as follows:

   “Mr Beller was also invited to discuss the allegation that he had abducted the children and that as a result of this behaviour they were traumatised. Mr Beller’s immediate response was to claim that, “it was a holiday…I tell my mum I go on holiday – she said take the kids – you can come – she said no you take the kids – I took the kids for two weeks”. Mr Beller said he told X to tell Ms Ahern to come on the holiday.

   Mr Beller indicated that he had returned to Adelaide because he learned that Ms Ahern was sick in hospital. He responded, when asked, that he had not brought the children with him to see their “sick” mother, because he had no one to look after them and he did not want the children to worry. Mr Beller said he did not tell the children he was returning to Adelaide and instead told them, “I’m going somewhere to see someone”, to which he claimed that X had responded “OK”.

   Mr Beller insisted that Ms Ahern knew that he was going on holidays with the children, and that she told him to take the children to (country omitted) with him. Mr Beller claimed that he said to Ms Ahern, “I’m going to (country omitted) – I want to go and tell Mum we’re not together anymore – if you want to come – she said no – take the kids”.  Mr Beller asked aloud “why buy return tickets?” and “I never said I wouldn’t bring the kids back”. When asked, Mr Beller said that he registered the children’s names with the (country omitted) Embassy, “to tell them that’s my kids in Australia – they send it to (country omitted) to let them know…anyone can do it”. Mr Beller then said, “If I go to (country omitted) you could get passports straight away….they give you a fine if you don’t do it”. Mr Beller explained that if he registered the children’s names with the (country omitted) embassy there would be no cost for a Visa at the airport and thus he registered their names at (country omitted) Embassy in Australia “just in case”.

   Mr Beller acknowledged that the marriage had broken down one or two weeks prior to him leaving for (country omitted), and said that one of the reasons he wanted to visit (country omitted) was to tell his mother that he and Ms Ahern had separated and also because he promised X she could see the snow.”

6. Ms L found Mr Beller’s account of the circumstances surrounding the children’s travel to (country omitted) to be “somewhat evasive”, particularly when compared with the mother’s more detailed history of the matter and her obvious distress at the circumstances surrounding the children’s departure from Australia.  Ms L found Mr Beller’s explanation for registering the children in (country omitted) to be “elaborate and confusing”. 

1. Ms L formed the view that given his age and level of language skills, it was inappropriate for her to interview Y.  However, she elected to interview X at length.  In this setting, Ms L assessed X to be an open young person who was able to provide a detailed narrative of her life. 

2. In the context of these proceedings in my view, it is useful to set out in complete detail, what X reported to Ms L.  It was as follows:

   “When asked about her thoughts regarding (country omitted), X indicated that she liked (country omitted) and had visited “lots of times” since she was four years old.

   When it was commented that she had been to (country omitted) recently, X agreed and proceeded to give a detailed narrative about this trip. X began by saying that she had not known she was going to (country omitted) because her father, “didn’t tell me he just said I’ve got a surprise”. X explained that on the morning of her departure to (country omitted) her father had told her that she had to “lie to Mum” and told her that if she did not lie to her mother “he said I'd do something to you if you don’t lie”.  X said that she had lied to her mother about being sick on that morning although she had tried to covertly get her mother’s attention to indicate to her mother that something was wrong.  However, she had been unable to raise the alarm with her mother. X said that once her mother left for work her father, "got out of bed, grabbed clothes, put (them) in a suitcase – fed us- and got in the car”. She indicated that they had then travelled to some friends’ house called (omitted) (sic) and (omitted) (sic). X expressed the belief that (omitted) and (omitted) were planning to “take me” if her father had been unable to and that her father, (omitted) and (omitted) were “laughing in the car they were saying stuff about the airport”.

   X went on to say that in the car, her father instructed her to telephone her mother and tell her that they were buying toys at the shopping centre. Once at the airport X said that her father had told her to “be happy”.  X said that she believed that they would then wait for their mother to join them at the airport.  At this stage X described feeling curious about the “surprise” but also “scared”.  X said that at the airport one of her father’s friends, “(omitted)” accompanied her father. She said her father gave her toys “to get distracted when we go past people that can tell if you need help – he ((omitted)) said ‘smile while you’re playing’ – then Dad took me to the place where they check your bags”. X said that when her father told her that they were flying to (country omitted) she felt “shocked”. X expressed the view that Y had not understood anything about what was going on.

   Once on the aeroplane X said that Y began to ask “where’s Mum?” and that she began crying. X recalled that her father told her to stop crying “so they think its OK”. X said that on the aeroplane “I was asking him (Dad) all the time ‘is mum home?’, then when Mum comes home she won’t find me home”. X indicated that she felt sad and scared on the aeroplane and that, “I knew Mum didn’t know (where we were), I never thought that would happen..".

   When discussing her experiences in (country omitted), X said that Y was “screaming in (country omitted) – screaming and wanted Mum all the time”. She also said that the paternal family hit Y when he soiled his pants.  X later informed that her father had been planning on taking them to a different country “that we don’t even know”, and expressed doubt that her father was trying to get them back to Australia. X expressed the view that her father did not feel sorry for her during her time in (country omitted), nor sorry for her mother without the children. X indicated that she could not understand why her father had no empathy for her or her mother.

   X went on to say that when her mother arrived in (country omitted) she felt happy and relieved and said that she had cried tears of relief. X expressed the view that her grandfather "(omitted) saved my life, he solved everything- he's smart - he planned to get me back".  

   When asked, X indicated that she felt ‘a bit happier"’ since she had arrived home to Adelaide, but also nervous and scared. X also said that since her return from (country omitted) she had experienced "bad dreams – (about)…him taking me again". However, she also expressed the view that she felt safe with her mother and her grandfather because "he's strong".

   When asked, X went on to talk about family life when her parents lived together. She indicated that her mother and father had many fights. She recalled an incident wherein her father “got scissors one time I heard lots of banging on (the) wall and Mum was screaming and crying”. X said that her bedroom door was open and she had seen her father, "trying to scare Mum, she had her hands up”. She recalled that she had been "really scared" and that, “when the fight was over my room was a mess - glass smashed….why my room?". X said that following this incident the Police attended and she heard her mother crying after which her mother left with the Police.

   X spontaneously offered the information that, "nearly everyday I used to feel sick. When I think about them arguing….. I used to sleep with a bucket I felt so sick".  X also said that her father could be “very grumpy” and that "sometimes when I do something wrong he gets his slipper and smacks it on me and threw it at me". She also indicated that her father would pinch and smack her face and "it didn't hurt for him because he's big".

   When asked how she felt about the visits with her father X indicated that she felt “very scared from him”.  X went on to say that on the previous visit to the Children's Contact Service she had learnt that her father could not attend the visit. X said that she felt scared “that he was hiding behind something trying to get me”. X was asked what she thought should happen next in terms of visiting with her father, to which she admitted that she was scared to upset her father. She indicated that in order to appease her father and to avoid consequences, "I’d like the visits to continue” but that she wanted "professional people" supervising as otherwise she would feel “unsafe”. When asked whether there was a friend of the family with whom she would feel comfortable in the role of supervisor, X declined this suggestion saying, “Mum might choose someone she didn’t know was on my Dad’s side”.

   When X was asked about spending time with her father as part of the current assessment, she said that she felt “shaky” and “upset because when someone that’s done something bad – doesn’t matter if someone supervises – I’m scared of the actual person”. X indicated that she would probably “have lots of nightmares – some people think I should get over it – but it’s really hard”. X admitted that she was too nervous to see her father but then expressed the view that “it will be better if I do – he’ll just ask me...better than suffering because he’ll ask me questions about why not”. X expressed the view that Y would be “OK” with seeing their father, and then decided to ask Y about seeing their father. Y indicated that he was “OK” to spend time with his father and accordingly X then indicated that she would also spend time with her father.”

3. Ms L found X’s account of her journey to (country omitted) to be credible and reliable.  In addition, Ms L assessed X as having been significantly emotionally impacted by the circumstances surrounding the travel, particularly that it occurred without her mother’s apparent knowledge. 

4. In addition and significantly, Ms L found X’s account of her parents fighting to be reliable and “congruent with her affect”.  X’s account was corroborative of her mother’s description of an incident of domestic violence allegedly involving a pair of scissors.  In this context, Ms L suggested that X had probably witnessed domestic violence involving her mother. 

5. Ms L observed the father interact with the children.  She was concerned about a number of features of this interaction.  Firstly, she did not consider that Mr Beller engaged or conversed with the children in a way which could be considered meaningful for the children.  Secondly, she noted that X did not engage comfortably with her father. 

6. In contrast, Ms L observed the children to be calm and comfortable when in the presence of their mother and maternal grandfather, each of whom demonstrated a good capacity to engage with the children at a level appropriate to their development.  In contrast to the father, the mother was found to be able to respond sensitively to the children’s needs. 

7. In all these circumstances, Ms L provided the following evaluation of the family:

   “… Mr Beller’s seeming lack of parental sensitivity and struggle to appreciate rules and personal boundaries when under observation, raised considerable concerns about his potential behaviour when not under observation. Further, X’s expressed distrust about her father’s behaviour and motives, along with her statement that she would feel unsafe if the visits with her father were not supervised by a professional, combine to indicate that unsupervised visits would not be recommended at this point in time, regardless of Mr Beller’s position that he did not require supervision.”

8. As a consequence of this evaluation, Ms L’s recommendation to the court was that Mr Beller’s time with the children should continue to be professionally supervised.  Essentially, Ms L did not reject the mother’s view that X, in particular, had been traumatised by the circumstances surrounding her travel to (country omitted) as this coincided with her own assessment of the child. 

9. In these circumstances, Ms L did not reject Ms Ahern’s apprehension about the children engaging with their father in an unsupervised setting as being irrational or objectively unreasonable.  Rather, given her understanding of how the children came to travel to (country omitted), she considered it a reasonable and child focussed response to the situation which she supported.

Other psychological evidence regarding X

1. The mother arranged for X to receive psychological counselling following her return to Australia from Dr G, a clinical psychologist.  Dr G was asked to provide a psychological report in respect of X, which was subsequently filed with the court.  In this report, Dr G noted as follows:

   “… it has become obvious that the experience of being taken away from the familiar places and individuals in their lives has had a significant effect on these children.  Both children have shown strong reactions (i.e. crying, fear of separation from their mother, bad dreams, and anger over the situation).  The most obvious reactions have been from X (being the older and more aware sibling) and some of these reactions have persisted to the present time (i.e. anger, fear of separation from mother).  In addition, X expresses a fear of father and is uncertain of his motives.”

2. In these circumstances, Dr G opined that the children had been placed under stress by the court proceedings and were likely to experience heightened and further stress if they understood they were to spend more time with their father, particularly in an unsupervised setting.  Dr G was not in favour of such an outcome, particularly because of the possibility that the children could be re-traumatised by such an experience. 

The final orders ostensibly made by consent on 4 June 2013

1. Ms L’s family report was released to the parties on 27 March 2013.  This was in accordance with orders made by the court on 18 December 2012, on which occasion all outstanding applications relating to the parties were listed for final hearing on 10-12 July 2013. 

2. In conjunction with this order, directions were made for the filing of affidavit material for the trial.  The case was listed for directions on 10 April 2013, when it was anticipated that the family report would be to hand.

3. As previously indicated, it was on 10 April 2013 that the parties submitted proposed final orders in respect of the settlement of property issues between them.  On this occasion, the husband was represented by his then solicitor, Ms Rieniets. 

4. No concerns were raised regarding Mr Beller’s understanding of these orders or his capacity to follow the proceedings leading up to them.  For reasons already provided, I was satisfied that the proposed orders were appropriate and they were made in the father’s presence. 

5. Prior to 10 April 2013, Mr Beller had filed five affidavits, including a statement of his financial circumstances, none of which indicated that it was completed with the assistance of an interpreter.  Each of these affidavits had been professionally prepared.  In addition, there had been several mentions of the matter including at least one interim hearing. 

6. On each of these occasions, Mr Beller had been represented by counsel, none of whom had raised any issue concerning Mr Beller’s language skills or capacity to follow the proceedings in question.  On 10 April 2013, the children’s aspect of the case was adjourned until 4 June 2013. 

7. It was further ordered that the independent children’s lawyer be at liberty to provide a copy of Ms L’s report to Dr G.  In terms of Mr Beller’s ongoing interaction with the children, further orders were made for him to have supervised time with the children at the (omitted) Children's Contact Service.  However, X was only to attend such sessions if she wished to do so. 

8. On 4 June 2013, I was told by the mother’s counsel, Ms Lewis and the father’s then solicitor, Ms Rieniets that their respective clients had reached agreement in respect of the children’s matters.  However, their agreement did not have the approval of the independent children’s lawyer.

9. The independent children’s lawyer is Rebecca Reed. Ms Reed is an experienced family law solicitor in the permanent employ of the Legal Services Commission. She has a number of statutory responsibilities arising by virtue of section 68LA of the Family Law Act. These include assessing all available evidence and formulating a position for the court based on that evidence which the independent children’s lawyer believes will advance the best interests of any child concerned.

10. It was Ms Reed’s position that, given the contents of Ms L’s report and because it was likely that a professional supervisor could not be permanently retained to service the needs of the family, it was not likely to be in the children’s best interests for there to be any order made for X and Y to spend time with their father. 

11. Essentially, it was Ms Reed’s view that given the extraordinary circumstances surrounding the case and the evident trauma suffered by X in particular, it was not likely to be in the children’s best interests to have any ongoing interaction with their father.  Ms Reed considered ongoing professional supervision of the father’s time with the children to be an impracticable solution to the complex difficulties arising within the family and to be an impediment to the children moving on in their lives.

12. At the time, I appreciated the integrity of Ms Reed’s position but it was not one shared by either of the parties.  If I had rejected the orders, it would have been necessary for the trial of the matter to proceed.  The mother wished to avoid the potential trauma for her of such a trial.  Given the circumstances of the case, her perspective was not one which was easy to ignore. 

13. In addition, the proposed orders were in line with the essential recommendations of Ms L.  Y’s time with his father was to continue to be professionally supervised.  X did not have to attend supervised time with her father if she did not wish to do so.  Both children in my estimation, would continue to be safe and protected from harm in the care of their mother who would be conferred with parental responsibility for them. 

14. The mother’s case was one based on serious allegations of family violence. Her evidence was consistent with the definition of violence provided by section 4AB(1) of the Family Law Act 1975 namely behaviour which coerces or controls a family member or causes that person to be fearful.

15. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.  In this case, as a consequence of what X had disclosed to Ms L, I had ample evidence available to me to enable me to conclude that she had been seriously exposed to family violence.

16. I appreciate that Mr Beller disputes this evidence.  However Ms Ahern’s allegations had been squarely and cogently raised.  In these circumstances, I could appreciate why both parties would have wished to avoid having the court scrutinise this aspect of the case.  Their apparently mutual desire to settle the case, although perhaps unexpected given the intensity of the controversy between, did not appear to me to be forced or illogical.

17. Finally, I was not disposed to interfere with the agreement which the parties had ostensibly arrived upon in respect of ongoing care arrangements for their children in what were obviously very difficult circumstances and which did not appear to me to be clearly contrary to the best wishes of the children concerned. 

18. One of the underpinning objectives of the Family Law Act is that parents should agree wherever possible, about the future parenting of their children.  In this particular case, I was told that the parties had arrived at the agreed position after each had received independent advice from their respective lawyers. 

19. In these circumstances, I elected to make the orders proposed by the parties’ respective solicitors, notwithstanding Ms Reed’s unwillingness to approve them.  The orders contained a particular notation, prefaced on the basis of the father’s ostensible understanding of one of the basic shortcomings of the orders, namely that professional supervised time might not be indefinitely available to the family.  The orders and the relevant notations were as follows:

    “UPON NOTING that the father understands that a Children's Contact Service may not be able to provide a regular time slot to enable him to spend supervised time with the children

    FURTHER NOTING the independent children’s lawyer does not consent to the minutes

    THE COURT ORDERS WITH THE CONSENT OF THE PARENTS:

    That the children X born (omitted) 2002 and Y born (omitted) 2008 live with the mother.

    That the mother have sole parental responsibility for each of those children.

    That the father spend supervised time with the children at the Children's Contact Service at (omitted) or such other Children's Contact Service and in accordance with the availability of the Children's Contact Service.

    That the father shall follow the requirements of the Children's Contact Service and all directions by the staff in relation to his supervised time.

    That X’s supervised time with the father shall be subject to her wishes.

    That the father shall complete a Parenting Course and provide to the mother’s solicitor a certificate of completion. 

    That paragraphs 1, 2 and 3 of the orders made on the 18 May 2012 do continue.

    That the appointment of the Independent Children's Lawyer be discharged.

    That all matters be removed from the pending list.”

The current applications

1. Mr Beller commenced the current proceedings on 18 July 2013, some six weeks after the final orders were made.  On a final basis, he sought to spend time with the children on alternate weekends from 5:00pm Friday to 5:00pm Sunday.  In addition, he proposed being able to telephone the children daily. 

2. In the interim, he proposed that there be two supervised visits at the (omitted) Children's Contact Centre between him and the children prior to the inauguration of alternate weekend time from 5:00pm Friday to 5:00pm Sunday.

3. At both the interim and final stage, Mr Beller proposed orders that would ensure that the children remained living in Australia, particularly by the retention of their names on the airport watch list. 

1. In addition and in my view of some significance, Mr Beller also sought that X and the parties undergo a paternity test.  In the earlier proceedings, Mr Beller had not sought such orders.  

2. It is however the case that Mr Beller indicated to Ms L as follows:  “I found out my wife slept with someone” as one of the reasons the police had been called to the parties’ former family home in response to an incident of alleged family violence. 

3. In addition, in his affidavit in support of his application, Mr Beller asserts that he did not request an (language omitted) interpreter because he was anxious that any question regarding X’s paternity might become known in the (country omitted) Community, to which he and Ms Ahern belong, to X’s long term detriment. 

4. In this regard, Mr Beller asserts that he did not know that he could request an (country omitted) interpreter to maintain confidentiality.  The paragraph of his affidavit relating to the issue of a parenting test for X reads as follows:

   “I did not request an (country omitted) interpreter because the (country omitted) community in Adelaide is so small.  My religion is (omitted).  Our religion is strict regarding marital infidelity, extending to the ability of the daughter of an unfaithful mother to find a husband.  I did not want discussion of the background of these proceedings to be common knowledge in my community and affect my daughter’s ability to find a husband.”[6]

   [6] See husband’s affidavit filed 18 July 2013 at paragraph 10

5. Accordingly, Mr Beller implies that Ms Ahern was unfaithful to him during the parties’ marriage.  He does not provide any specific detail of his allegation in this regard.  It is I think, axiomatic given the parties’ jointly held cultural orientation, that an allegation of this kind is both deeply insulting and potentially very damaging, particularly to Ms Ahern.  In these circumstances, an application of the type brought by Mr Beller is not one to be lightly entertained by the court.  It must rest on solid foundations.

6. The mother responded to the father’s application on 17 December 2013.  She seeks its dismissal, on both an interim and final basis and that the father pay her costs fixed in the sum of $3,260.00.  It is her case that the orders of 4 June should not be subject to any form of revision so soon after they have been made.

7. It is further the mother’s position that there is no basis whatsoever for there to be a parentage testing procedure to be undertaken in respect of X.  It is her position that the father is questioning X’s paternity in order to humiliate and distress her (the mother).[7] 

   [7] See mother’s affidavit filed 17 December 2013 at paragraph 11

8. In the affidavit filed in support of his application, Mr Beller deposed that he did not understand the minute of the consent order which he signed prior to it being made on 4 June 2013.  He further deposed that he did not have the assistance of an (country omitted) interpreter prior to the making of the order and did not request one because of the sensitivity of the issue surrounding X’s paternity which he asserts he became intent on raising after having been told that any interpreter engaged to assist him would be required to maintain confidentiality. 

9. In addition, Mr Beller asserted that he erroneously believed that when he signed the minute, it was an interim arrangement which envisaged a further six supervised visits with the children prior to the case returning back to court for further argument. 

10. Underpinning Mr Beller’s position is his assertion that, although he understands conversational English and is able to engage in every day transactions such as shopping and colloquial conversation, he is unable to understand technical or complex concepts expressed in English, such as those pertaining to legal matters. 

11. In her responding affidavit, Ms Ahern refuted the father’s assertion that he did not understand the import of the matters made on 4 June 2013 or that he required an (country omitted) interpreter.  It was her evidence that Mr Beller had lived in Australia for thirteen years and spoke English fluently. 

The hearing of 5 February 2014

1. Ms Ahern applied to the court to have Mr Beller’s application dismissed at a preliminary stage, without the need for a final hearing on the basis of the rule in Rice & Asplund. 

2. It was her position that there had been no change of circumstances pertaining to the children other than that Mr Beller now asserted that he did not understand the import of the orders made on 4 June 2013. 

3. In the submission of her counsel, Ms Lewis, this factor was largely irrelevant to the best interest of X and Y, which interests were in any event, advanced by the orders of 4 June 2013, which were in accordance with the recommendations of Ms L. 

4. Mr Greer, counsel for Mr Beller acknowledged that there had been no change of circumstances since June of 2013, other than that Mr Beller now asserted that he lacked the necessary English language skills to instruct counsel competently in the earlier proceedings without the assistance of an (country omitted) speaking interpreter. 

5. Mr Greer also acknowledged that Mr Beller had not previously raised the issue of his level of competence in English and none of his previous legal advisors had ostensibly at least, felt constrained by any lack of competent instruction from him. 

6. Mr Greer approaches the case from the perspective of his client’s entitlements.  Essentially, it is his submission that it was unfair to Mr Beller that the orders were made without his client’s informed consent and this represents a miscarriage of justice.

7. Ms Lewis approaches the case from the perspective of the children’s best interests.  Underpinning her position is the assertion that it would not be in either X or Y’s best interests for the earlier proceedings to be reinstated and argued afresh, given the unusual circumstances of the case and the fact that evidence is available to indicate that X, in particular has suffered psychological consequences as a result of being taken to (country omitted).

8. It is a factual issue as to whether Mr Beller did or did not understand the legal implications of the orders of 4 June.  It is an easy assertion to make but a difficult one to ascertain one way or the other in the absence of a forensic examination of Mr Beller's English language skills or some other objective assessment of the issue.

9. Ms Ahern’s view is that Mr Beller's English language skills are adequate.  She deposes that he has lived in Australia for thirteen years during which period he attended English classes for around four years as a condition of receiving unemployment benefits.

10. In addition, she points to the fact that Mr Beller was employed in the (omitted) for approximately four years and more recently at (omitted).  She asserts that “it is simply not possible that the father could have held these employment positions if his English speaking skills were poor.”[8]

    [8] See mother’s affidavit filed 17 December 2013 at paragraph 5

11. Ms Ahern also refutes any suggestion that Mr Beller was likely to have been uncomfortable at the prospect of requesting an interpreter from the (country omitted) community, pointing to the fact that (language omitted) is the lingua franca of the (country omitted), not just (country omitted).  Accordingly, it is her submission that there is likely to have been a store of (country omitted) interpreters, unrelated to the parties’ community group potentially available to assist Mr Beller.

12. Given the factual nature of the dispute between the parties, I elected to hold a brief hearing into the nature of the Mr Beller's English language skills.  He had the assistance of an interpreter for this hearing.

13. For obvious reasons, given the basis of his application, Mr Beller is unlikely to either concede or demonstrate in his oral evidence any great competence in English.  In that sense, I concede that the hearing was largely fatuous. 

14. However, I accept that Mr Beller does not speak English well or with any great degree of fluency.  He does however understand some English but with what degree of proficiency it is difficult for me to ascertain.

15. I do however note that a number of professional people, including the father’s previous solicitors and barristers and Ms L felt able to interact with Mr Beller without an interpreter and ostensibly, at least Mr Beller was comfortable with this situation. 

16. However, I also accept that the only person who is able to categorically know whether Mr Beller does or does not understand something expressed to him in English is Mr Beller himself.  It is essentially a subjective issue.

17. But it remains the case that Mr Beller has not called any evidence from his previous legal advisors regarding whether they were comfortable or otherwise with acting for Mr Beller without an interpreter.  I can understand why this evidence is not likely to be easily obtained certainly consensually.  However, in my view its absence is telling.

18. In addition, no evidence has been provided regarding any objective professional assessment of Mr Beller's English language proficiency.  Again, I can appreciate why this may be difficult to obtain but the fact remains that the only evidence in support of the father’s position is his assertion that he did not understand what was going on and felt embarrassed to request an interpreter for himself because of the issue which he wished to raise regarding X’s paternity.

19. These proceedings are not primarily concerned with the rights of the parties themselves or their entitlement to seek redress as a result of any perceived unfairness in the adjudication process.  Rather, the fundamental focus of the case remains on the best interest of the children concerned.

20. For all sorts of reasons, Mr Beller may now feel that the orders of 4 June 2013 were unfair to him and arose in a context in which he was linguistically disadvantaged.  However, in my view, this is not of itself sufficient to justify a re-opening of the earlier proceedings.  Rather, Mr Beller must establish what utility the re-opening of the case will serve from the perspective of X and Y’s best interests not his own.

The legal principles applicable

1. Part VII of the Family Law Act 1975 deals with orders relating to children.  Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].

2. The matters which the court must take into account in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC. 

3. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations.  There are two primary considerations which are set out in section 60CC(2)(a)(b) namely:

   (a)    the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

4. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another.  They have been referred to in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned. 

5. However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. As previously indicated, at the earlier stage when the consent orders of 4 June were made, it was apparent to me on at least a prima facie basis, that X had been exposed to family violence as the mother alleged. 

7. I was also aware, as was the independent children’s lawyer, of the implications of these orders in terms of the level of meaning that the children would have in their relationship with their father.  Counsel for each of the parties, including the father, were well aware that the children’s relationship with their father would continue to be significantly curtailed for the foreseeable future.

8. Other specific criteria relating to how the court is directed to consider how the best interests of any children concerned may be served by any order which is made, are set out in section 60CC(3).  There are fourteen such criteria which are categorised as being additional considerations. 

9. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

10. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice for the child affected in every case.[9] 

    [9]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

11. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[10]  As such the various factors in section 60CC are inclusive but not exclusive of one another.[11]  

    [10]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [11]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

12. The fundamental task for the court is to determine bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned both now and in the future.

Parentage Testing

1. The legal provisions relating to parentage testing are contained in subdivision E of Division 12 of Part VII of the Act.  In particular, pursuant to section 69W, if the parentage of a child is a question in issue in proceedings before it, the court may make an order for parentage testing on its own initiative or on the application of a party to the proceedings before it.

2. Accordingly the authority to make a parentage testing order rests on a discretion.  The legislation itself provides no explicit guidance as to how such a discretion is to be exercised.  In Brianna v Brianna Bryant CJ held that the discretion arising under section 69W was unfettered but was to be exercised judicially and in accordance with the facts arising in each individual case.[12]

   [12] Brianna v Brianna (2010) 43 Fam LR 309 at 317

3. Section 69W requires the parentage of a child to be a question in issue in the proceedings arising under the Family Law Act. Underpinning this provision is the rationale that parentage testing orders are not to be lightly or routinely made.  Certainly, it is not the case that a party to proceedings under the Act has an entitlement to request such an order.

4. In TNL & CYT [13] the Full Court considered that this stipulation rested on the satisfaction of two considerations.  Firstly, parentage had to be relevant to the nature of the proceedings.  Secondly, there must be some evidence which places the parentage of the child in doubt.

   [13] TNL & CYT [2005] FamCA 77

5. In this case, the husband has provided no such evidence.  X was born during the period of the parties’ marriage.  Accordingly there is a presumption that Mr Beller is X’s father.[14]

   [14] See Family Law Act at section 69P

6. To Ms L, Mr Beller indicated he had found out his wife had slept with someone.  No specifics of this incident are provided, particularly when it is supposed to have occurred.  Mr Beller does not provide any provenance for the information.

7. I do not consider that this evidence is sufficient to place the parentage of X in doubt.  Certainly it does not evince “an honest, bona fide and reasonable doubt”[15] on the part of Mr Beller as to the circumstances of X’s parentage.  His statement of doubt is a mere assertion without provenance which arises in difficult and vitriolic proceedings between spouses commenced many years after the child was born.

   [15] See TNL & CYT (supra) at 7

8. From Ms Ahern’s perspective, the tangential manner in which the issue has been raised raise serious questions regarding the father’s bona fides.  She believes that the issue has been raised solely to discredit and embarrass her within the (country omitted) community, which as the father’s evidence indicates, has strict views regarding marital infidelity.

9. If the court makes the order requested by the father, even if the testing ultimately establishes Mr Beller to be X’s father, the fact that the court has entertained the suggestion that Ms Ahern engaged in adulterous behaviour during the parties’ marriage and this fact becomes known in the parties’ wider community, it is likely to subject her to censure and humiliation, which in turn may have serious ramifications for X herself.

10. There is some jurisprudential controversy, as yet it seems definitively resolved as to whether a parenting testing order is a parenting order as envisaged by the provisions of section 64B and therefore subject to the paramountcy provision encapsulated in section 60CA of the Act.

11. Pursuant to section 64B(2)(i) a parenting order may deal with any aspect of the care, welfare or development of a child.  In this context, in Tyron v Clutterbuck[16] Coleman J indicated his view that it was tolerably clear that the paternity of a child could be germane to an aspect of the welfare of a child.  This seems to me to be the case, but it must depend on applying common sense to the individual circumstances of each case arising.

    [16] Tyron v Clutterbuck  (2007) FLC 93-332

12. In Brianna Bryant CJ said as follows:

    “There may ultimately come a time when the legislation permits parentage testing as a matter of right.  But the social ramifications remain complex and there are divergent views in the community about the ease with which parentage testing should be available.”[17]

    [17] Brianna (supra) at [29]

13. Some of these divergent views include the following:

    ·     The interests of justice are best served by the ascertainment of the truth, which is now scientifically possible given the technical advances in DNA testing;

    ·     Scientifically based findings are superior to findings based on the application of presumption or inference;

    ·     Children have an inherent right to know the true circumstances of their paternity.  Such knowledge may be beneficial to them in later years, particularly if issues arise regarding the treatment of a genetically transmitted illness or disorder;

    ·     It may be deeply emotionally destabilising to a child if a person whom he or she believes and accepts is his or her father, is subsequently shown not to hold this role in a biological sense;

    ·     In some circumstances, a child may be disinterested or even vehemently opposed to having the circumstances of his or her paternity revealed because from that child’s perspective, the issue is settled in a psychological sense;

    ·     Accordingly, it may be contrary to a child’s views to compel him of her to take part in a parentage testing procedure even if one of the parties to the proceedings in which the issue is raised fervently agitates for it, as this agitation may relate to some ulterior aim related to the ends and means of that party.

14. In this particular case, the mother asserts that the issue has been raised to damage her.  Mr Beller does not disagree that the issue is a potent social one within the (country omitted) community in Adelaide.  He also acknowledges that it has the potential to stigmatise X herself.

15. As the evidence currently stands, it does not appear to me that Mr Beller has established that the parentage of X is a question in issue between the parties in the case within the parameters established by section 69W.

1. Further there is no evidence to establish that the resolution of the issue, which arises only on Mr Beller’s assertion, is likely to be in X’s best interests.  To the contrary, there is evidence emanating in part from the father himself, that the very nature of the issue, including the circumstances in which it is raised, has the potential to be inimical to her best interests.

2. These considerations must be considered in the context of the court having made final orders in respect of not only X but also Y in proceedings in which the issue of paternity was not raised by Mr Beller.  In particular the court must consider whether the manner in which Mr Beller raises this issue constitutes a change of circumstances.

The application of the rule in Rice and Asplund

1. In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration.  As the circumstances of both parents change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.

2. However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited.  Otherwise to allow further applications on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation. 

3. For that reason, a court will not readily re-open a case concerning parenting orders recently made.  There needs to have been a substantial change in circumstances before a court will do so.  This is the basis of the rule in Rice & Asplund.  It is an expression of the paramountcy rule arising from section 60CA.

4. The primary purpose of the rule is to prevent “endless litigation”[18] and is based on three main pillars.  Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”[19].

   [18] See Rice & Asplund (supra) per Evatt CJ at 78,905

   [19] See SPS & PLS [2008] FamCAFC 16 at paragraph 56

5. Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer on the basis of the same factual circumstances.[20] 

   [20] Ibid at paragraph 58

6. Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led.  The rule negates this potential outcome.

7. Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements.  Litigation is not helpful to children. 

8. It is desirable that arrangements for their care be stable and so final.  For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[21]

   [21] See CDJ v VAJ (1998) FLC 92-828 at 85,449

9. In addition, if the court allows parents to have frequent recourse to litigation to settle disputes between them regarding parental arrangements, it is likely to have significantly harmful psychological consequences not only for the parents themselves, but especially their children.  It has been said that the court should not condone a “perennial football match between parents, who … seek to canvass again and again the question of custody of a child …”.[22]

   [22] See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS (supra) per Warnick J at paragraph 57

10. It is clear from authority that a court such as this one has a discretion to determine whether there has been a sufficient change of circumstances to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either as a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[23]

    [23] See Bennett & Bennett (1991) FLC 92-191 at 78,262

11. However, as Warnick J pointed out in SPS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage.  If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.[24] 

    [24] See SPS & PLS (supra) at paragraph 59-60

12. Given that the court will often be called upon to apply the principal expressed in Rice & Asplund at a preliminary stage, without any full exploration of the parties’ concerned evidence, care must be taken with its application at such a stage.  It is not a rule which is to be applied formulaically. 

13. Rather, the court must examine the evidence available and determine whether at its highest and without determining is veracity, such evidence demonstrates a sufficient change of circumstance to justify the court embarking upon a full and exhaustive hearing. 

14. Warnick J put it as follows:

    “…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.”[25]

    [25] Ibid at paragraph 81

15. It will frequently be the case that there is much controversy between the parents concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings.  This issue must be determined within the matrix of Part VII of the Family Law Act 1975. 

16. The question essentially being whether it is likely to be in the children’s best interests to allow further litigation.  In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation between their parents. 

17. In arriving at its decision, the court must look to the following matters:

    ·     The importance or seriousness of the issues raised, both individually and where necessary collectively;

    ·     The impact that the issues are likely to have on the best interests of the children concerned;

    ·     Whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.

18. The test is a strong one.  The change or fresh circumstances must be of such significance that once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties. 

19. That is not to say upon becoming aware of the change of circumstances the court reaches the conclusion that there must inevitably be a change in orders previously made.  That would be putting the test too strongly.  Rather, the change of circumstances must be such that there is a “real likelihood” of a change. [26] 

    [26] See King & Finneran (2001) FLC 93-079 at 88,367

20. In SPS it was said that the “essential question” for the court to pose itself concerned the “sufficiency” of the new events, which were said to precipitate the need for a new inquiry.  In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps which might follow from them.[27]

    [27] Ibid at paragraph 84

Conclusions

1. The central question for the court at this stage of proceedings, is what benefits are likely to accrue to the children if the trial process is resumed.  Essentially what is a trial likely to achieve from the children’s perspective and what are the possible risks arising from such a trial. 

2. In making this assessment, the court should not deal with hypothetically possible outcomes, but rather what is more likely than not to be found.  It is an exercise to be undertaken from the perspective of the children, rather than from that of their parents or any rights which each parent may perceives he or she has.

3. If the matter had not been resolved on 4 June 2013, the court would have been called upon to adjudicate a number of evidentiary issues in dispute between the parties as delineated in their respective affidavit filed in the court.  These issues include the following:

   ·     The circumstances surrounding the children’s travel to (country omitted), particularly whether the trip was a holiday and occurred with the mother’s essential acquiescence;

   ·     The circumstances surrounding the father’s return to Australia without the children;

   ·     Is X currently psychologically comprised as a consequence of what occurred to her or is she being manipulated by her mother in some way;

   ·     What was the nature of the parties’ relationship together in particular was it characterised by serious family violence as the mother contends.

4. It is clearly the case that Mr Beller did not raise any issue regarding controversy regarding X’s paternity in the earlier proceedings.  It is a totally new issue.  It is also an issue of significant delicacy particularly for Ms Ahern and if Mr Beller’s evidence is accepted, also for X herself when she reaches her majority if not before.

5. Mr Beller has consistently maintained that the trip to (country omitted) was not malignly motivated.  His position is not supported by any other source of evidence and is not consistent with what X reported to Ms L. 

6. In addition, in my view his position flies in the face of common sense, particularly given how the children were eventually retrieved from (country omitted) without his physical involvement after he had left the children behind in the country.

7. It is hypothetically possible that the court could find that Mr Beller either genuinely believed that he had the mother’s consent to take the children to (country omitted) or he travelled there with either the mother’s tacit or actual approval. 

8. It is also hypothetically possible that it might be found that the mother has over-stated X’s apparent distress at the trip or has otherwise manipulated the child.  However, in my assessment on the basis of the evidence available to me (and to the father’s previous legal advisors) both such outcomes appear highly improbable.

9. The central piece of evidence which justified the final orders made on 4 June, was the family report of Ms L.  She recommended that the father’s time with the children should continue to be professionally supervised and in X’s case, subject to her wish to attend.

10. I appreciate that Ms L’s methodology has not been subject to any rigorous scrutiny in the form of cross examination at a final hearing stage.  However, on its face, the family report cannot be described as lacking in detail or professional rigour.  Certainly, in the context of his current application, Mr Beller has not raised any explicit criticisms of it other than by necessary implication, he now does not agree with its conclusion.

11. It is also conceivably possible that a court may ultimately find that Ms Ahern’s claims of being the victim of family violence instigated by Mr Beller are either over-stated or even concocted by her out of malice.   But at this stage, on the basis of the evidence available to me, both such outcomes appear improbable.

12. Family violence by its very nature, often occurs behind closed doors in a domestic setting.  As such, its independent verification may prove to be problematic.  Yet family violence remains an endemic problem in Australian Society and represents a multi-facet threat to the well-being of children.  Protecting children from family violence is one of the central tenets of the Family Law Act.

13. Accordingly, it is rarely the case that one party can conclusively prove all relevant allegations of having suffered family violence or the other irrefutably rebut allegations that it occurred.  This does not absolve the court of its responsibility to deal with allegations of family violence stringently.[28]

    [28]  See Amador & Amador (2009) 43 FamLR 268

14. Mr Beller denies that he was ever violent towards Ms Ahern.  His denials are not supported by any extrinsic form of evidence.  Ms Ahern’s claims are corroborated to some degree by what X told to Ms L.  But given X’s infancy and the fact that she will not be a direct witness in the proceedings, a court may elect to treat her evidence with caution. 

15. It thus may be that a court will be unable to determine conclusively the truth or otherwise of both Ms Ahern’s allegations and Mr Beller’s denial.  However, at a prima facie level, Ms Ahern’s evidence cannot be regarded as being inherently improbable.  In this context, the court must examine the benefits likely to be derived by the children of the issue being litigated in detail. 

16. In my assessment, particularly given the assessment of Dr G that X is a psychologically compromised child, a view supported by Ms L, it is difficult to see that the examination of this issue will prove beneficial to her or indeed to Y.

17. Underpinning Mr Beller’s position is the implied assertion that it is a very significant thing indeed for a court to curtail a child’s potential to have a meaningful level of relationship with a parent to a marked degree, which is what has occurred in the present case. 

18. Further, given his now self-professed lack of understanding of the earlier orders, this should not be allowed to occur without a full and exhaustive hearing of all relevant issues by the court.  It is his case, I think, that the current orders will effectively mean that his relationship with the children is severed.

19. I acknowledge that it is indeed a very significant thing for a court to limit a parent’s involvement with his or her child given the structure of Part VII of the Family Law Act, which is the section of the act dealing with arrangements for children.  One of the primary considerations to which the court must have regard is the likely benefit a child will derive from having a meaningful level of relationship with a parent.

20. In this case, I accept that Mr Beller is likely to have an extremely circumscribed level of relationship with Y, if the only time he has with him is on a monthly basis for a matter of a couple of hours at a children’s contact centre.  If X declines to attend such sessions, there will be no relationship whatsoever between father and child.

21. In the case of Baranski & Baranski & Anor[29] I wrote as follows:

    “The principles underlying Part VII of the Family Law Act place parents in a position of primacy towards their children.  Children have a right to know and be cared for by both their parents and to spend regular periods of time with them [section 60B(2)(a) & (b)].

    Children gain a sense of personal identity by interacting with their parents – their biological instigators with whom they share a genetic inheritance – in a variety of settings and circumstances.  As such it is a significant thing to deprive a child, of any age, of the opportunity to know a parent at first-hand.

    A child’s parents are also likely to be a source of unconditional love and approval for the child concerned.  Parents provide children with knowledge and information about their wider family and forebears.  Parents endow their children with warmth and approval and, as such, children feel a sense that they are unique and special to their parents.  For these central and self apparent reasons, children benefit from having a “meaningful” relationship with both their parents. 

    The parental bond, involving nurture and support, is central to a child’s ongoing development.  Children need both paternal and maternal role models to assist them to move appropriately towards maturity and become competent and insightful parents in their own turn.  For these reasons, it is a very significant thing indeed, for a court to order that a child spend no time whatsoever with a parent and, in effect, sever a parental relationship for a child.”

    [29] Baranski & Baranski & Anor [2010] FMCAfam 918 at [322] – [325]

22. Issues of this type were alive when the orders of 4 June were made, certainly from the perspective of both the mother and the independent children’s lawyer.  In particular, it was Ms Reed’s submission that the orders ultimately made went too far and no order whatsoever should have been made for the children to spend time with their father.

23. The circumstances surrounding the making of the 4 June orders were exceptional.  The case arose as a consequence of the father having behaved in a manner which, on any reasonable and objective assessment, was intended to sever the children’s relationship with their primary carer permanently. 

24. Other independent, albeit untested evidence in the form of the reports of Ms L and Dr G respectively, demonstrated that the father’s actions had had detrimental psychological consequences for X, in particular.  In addition, the evidence available on 4 June unequivocally demonstrated that Ms Ahern had been the children’s primary carer up until they had been taken to (country omitted). 

25. In these circumstances, the court was required to give earnest consideration to Ms Ahern’s on-going level of psychological functioning, particularly in regards to her capacity to parent the two children concerned to an optimal level.  For pragmatic reasons, she wanted to bring an end to the litigation provided that the on-going security of the children could be guaranteed.

26. Accordingly, in my view, although the orders of 4 June must be considered extreme, particularly given the importance the applicable legislation places on the benefits of children maintaining a meaningful level of parental relationship, they cannot be regarded as being axiomatically inappropriate or, on a prima facie basis, contrary to the best interest of X and Y, given the extraordinary background to the case.

27. The issue raised by Mr Beller, for wanting to re-open the proceedings is a significant one.  It does not assist the community to have confidence in the administration of justice if one party later, with some degree of justification, asserts that he did not understand the significance or import of an order ostensibly made with his or her consent.

28. In my assessment, whether Mr Beller can or cannot provide justification for his assertion that he did not fully apprehend the order of 4 June is an issue which cannot be resolved at this stage of proceedings and may be incapable of ever being resolved definitively. 

29. I accept that Mr Beller does not speak English to a sophisticated level.  He does, nonetheless, have some English proficiency and those advising him up to the stage of the making of the orders had no qualm in letting him participate in the litigation without the assistance of an interpreter. 

30. There is no independent and objective evidence available regarding Mr Beller’s level of English comprehension arising from any formal testing of Mr Beller.  For obvious reasons, his evidence about his level of English proficiency is likely to be self-serving at this stage of proceedings.  Certainly, this was my assessment following his evidence to the court.

31. But the fact remains that the main issue which Mr Beller has raised to justify the re-opening the proceedings, is his ostensible lack of understanding of the 4 June orders.  This is fundamentally a question which relates to issues of fairness and equity to him and outside perception relating to the administration of justice.  It is not an issue which has direct implications for the best interests of the children concerned.

1. In my assessment, given the irrelevance of the issue to considerations of the children’s best interests, it is not an issue of such moment to justify re-opening the case on this basis alone.  This is particularly so given the emotional and psychological vulnerability of X in particular.  I am satisfied that the re-opening of the case has the potential to be extremely upsetting to Ms Ahern and so have ramifications for her capacity to parent the children.

2. I am fortified in this view by Mr Beller’s lately raised application to have X and Ms Ahern undergo a parentage testing procedure.  In my assessment, apart from his inchoate assertion that such a test is necessary, he has provided no cogent evidence to justify such a test as being in X’s best interests. 

3. To the contrary, the issue has the potential to be actually detrimental to X no matter how it is resolved.  In addition, given the assumption on which the application is based – Ms Ahern’s alleged infidelity – I am concerned that there is some basis for her concern that the issue has been raised lately as a mechanism to cause her distress, given the attitudes of many members of the (country omitted) community, to which both parties belong, to marital infidelity generally.

4. In my assessment at the time of their making, the 4 June orders were calculated to be in the best interests of the children.  The sole judicial controversy arising at that stage, given the lack of acquiescence from the independent children’s lawyer, was whether the orders, ostensibly agreed upon by the parties, went too far in allowing Mr Beller to interact with the children.

5. Given the finality of the orders of 4 June, the change of circumstances propounded by the party wishing to re-engage litigation concerning a child must be of such significance that the court is left in no doubt that it is necessary to re-litigate parenting issues in dispute between the parties concerned.

6. I am extremely doubtful that the re-opening of the proceedings in this case would lead to a significantly different outcome to that which was apparently agreed between the parties on 4 June 2013, given the contents of Ms L’s report and the highly unusual circumstances which led to X and Y being taken out of Australia.

7. In addition, I have grave concerns that re-opening of the litigation, including the recently raised issue of X’s paternity, would not serve the best interests of the two children concerned, given their current level of emotional vulnerability. 

8. For these reasons I propose to dismiss the father’s application filed on 18 July 2013.  I do not propose to make any order as to costs.

9. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     24 March 2014