Betros & Betros

Case [2021] FamCA 378

FAMILY COURT OF AUSTRALIA

Betros & Betros [2021] FamCA 378

File number(s): PAC 3685 of 2011
Judgment of: HANNAM J
Date of judgment: 9 June 2021
Catchwords: FAMILY LAW – JURISDICTION – Whether there is a significant change in circumstances to warrant a fresh hearing in respect of parenting arrangements – Consideration and application of the rule derived from Rice & Asplund (1979) FLC 90-725 – Best interests of the children – Where the applicant father seeks to revisit existing parenting orders relating to the children’s time with him – Where both the mother and ICL seek orders that the father’s application to reopen proceedings be dismissed – Where the Court is not satisfied that there are changes in circumstances sufficient to justify reopening proceedings – Father’s application to reopen proceedings dismissed – Where it is otherwise appropriate to make an order that the ICL explain to the children the supervision requirement of their time with the father, as recommended by the family consultant.
Cases cited:

Betros & Betros [2016] FamCA 225

Betros & Betros [2017] FamCAFC 90

Marsden & Winch [2009] FamCAFC 152

Miller & Harrington (2008) FLC 93-383

Prewett & Mann [2013] FamCAFC 130

In the marriage ofRice & Asplund (1979) FLC 90-725

Number of paragraphs: 163
Date of hearing: 14 – 15 December 2020
Place: Parramatta
Counsel for the Applicant: Ms Conte-Mills
Counsel for the Respondent: Ms McCarthy
Counsel for the Independent Children's Lawyer: Ms Seric
Solicitor for the Applicant: Phillip A Wilkins & Associates
Solicitor for the Respondent: Womens Legal Services NSW
Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers

ORDERS

PAC 3685 of 2011
BETWEEN:

MR BETROS

Applicant
AND:

MS BETROS

Respondent

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

9 JUNE 2021

THE COURT ORDERS THAT:

1.The Independent Children’s Lawyer is to explain to the children the Orders made in 2016 with respect to their supervised time with their father and in doing so, may be assisted by any person with suitable expertise as the ICL considers appropriate.

2.The father’s Initiating Application filed 1 March 2017 and any Amended Initiating Application is otherwise dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Betros & Betros has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HANNAM J:

INTRODUCTION

  1. The parties (“the mother” and “the father”) have a significant history of litigation in relation to the parenting arrangements for their three children who are now aged between 12 and 15 (“the children”).

  2. The first tranche of litigation resolved by way of final orders made…

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AGLC
Betros & Betros [2021] FamCA 378
Case
[2021] FamCA 378
Decision Date

CaseChat Overview and Summary

The case of *Betros & Betros* concerned an application by a father seeking to reopen parenting arrangements for his three children. The father sought to vary existing orders that provided for the children to live with their mother and have limited supervised time with him. Both the mother and the Independent Children's Lawyer (ICL) opposed the father's application to reopen the proceedings. The court was required to determine whether there had been a significant change in the children's circumstances to warrant a fresh hearing regarding their parenting arrangements, applying the principles derived from *Rice & Asplund*.

The court's primary consideration was the best interests of the children. The father's application to reopen the proceedings was based on his contention that there had been a significant change in circumstances. However, the court found that the evidence presented did not establish a prima facie case of changed circumstances. Even if some changes were accepted, they were not deemed sufficient to justify reopening the proceedings, particularly given the limited prospect of success for the father's application and the potential detriment to the children from further litigation. The court noted that previous proceedings had identified a need to protect the children from psychological harm and that the father had engaged in behaviour designed to undermine the children's relationship with their mother.

Despite dismissing the father's application to reopen the parenting orders, the court acknowledged the children's strong views regarding their time with their father. In line with a recommendation from the family consultant and with the agreement of both parties, the court ordered that the Independent Children's Lawyer, potentially with expert assistance, explain to the children the reasons for the supervised time arrangements. The father's Initiating Application and any amended applications were otherwise dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Independent Children’s Lawyer is to explain to the children the Orders made in 2016 with respect to their supervised time with their father and in doing so, may be assisted by any person with suitable expertise as the ICL considers appropriate.

2. The father’s Initiating Application filed 1 March 2017 and any Amended Initiating Application is otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Betros & Betros has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

The question for me to determine is whether there has been a significant change in the children’s circumstances such that it would be in their best interests for the question of their parenting arrangements to be reconsidered by the Court.BACKGROUND The father who is 47 and the mother who is 41 married in 2004. There are three children of their relationship: a son born in 2005 and now 15 (“the oldest child”), another son born in 2006 and now 14 (“the middle child”), and a 12 year old daughter (“the youngest child”) who was born in 2008. The parties separated in March 2011 and following separation the children remained living with the mother. The parenting arrangement following separation became highly problematic as each parent complained about the parenting capacity of the other. The father for example, raised concerns that the mother was physically abusive towards the children and neglected their medical needs, while the mother alleged that the father was controlling towards her and the children and was emotionally abusive. Parenting proceedings were first initiated by the father in August 2011 and in February 2013 the parties agreed on final orders (“the 2013 orders”) providing that they equally share parental responsibility for the children and that the children live with the mother and spend time with the father four nights each fortnight and half of each school holiday period. Over the next few months, and notwithstanding the making of the 2013 orders with their consent, each parent maintained their various reservations about the other parent. In December 2013 the father filed a fresh Initiating Application seeking to vary the 2013 orders, to an arrangement that would see the children live with him and spend time with the mother as the Court deemed fit. The final hearing of the father’s December 2013 application took place in late 2015 and final judgment was delivered in April 2016 (“the 2016 Judgment”)[1]. Those orders provided for the mother to hold sole parental responsibility for the children and for the children to live with her and spend limited supervised time with the father each alternate month. [1] Betros & Betros [2016] FamCA 225. A more detailed exploration of the Reasons for decision and the evidence contained in the 2016 Judgment is given later in these Reasons. It suffices to say at this stage that in making the 2016 orders I was satisfied that while the father shared a close relationship with each of the children, he had for some time engaged in a process designed to destroy the children’s relationship with their mother and cause them to align with him and question their safety with her. Accordingly, I found that there was a need to protect the children from psychological harm in the father’s care, and considered it in their best interests that a provision also be made for him to address those aspects of his behaviour through therapy, with the possibility of supervision being reconsidered when these matters were addressed.

Evidence

Evidence Before The Court

As the Full Court said in Miller & Harrington[6], the applicant is required to establish a prima facie case of changed circumstances.[6] (2008) FLC 93-383.The past circumstances- Reasons for previous decision and evidence The previous proceedings finalised in 2016, representing the parties’ second tranche of litigation, were determined when the children were aged between seven and 10. The parents’ dispute about the children’s parenting arrangements arose from allegations made by both of them that the other parent failed to meet the children’s needs or were otherwise physically or emotionally abusive. I identified the issues requiring determination as consisting of the following: ·The father’s allegations that the mother neglected the children’s medical needs;·The father’s allegations that the mother physically abused the children;·The mother’s allegations that the father perpetrated family violence towards her and the children; and·The mother’s concerns that the children were at risk of emotional and psychological harm in the father’s care. The bulk of the father’s evidence at trial said to support his contention that the mother was incapable of providing adequately for the children or was otherwise violent towards them, was based on reports made by the children themselves or the father’s own observations. As virtually none of the father’s allegations were corroborated by medical evidence and almost all were found to be exaggerated, I was not satisfied on the evidence that the mother failed to meet the children’s medical needs or physically abused them as alleged. I also concluded that the father’s readiness to accept the truth of the children’s complaints, including about serious assaults, did not reflect well on him. In concluding that the children’s complaints were unreliable, I attached weight to the family consultant’s opinion that some reports made by the children were “unusual” and that a possible explanation for their readiness to complain to their father about the mother was that they may have done so “to obtain a certain response from [him] to meet an emotional need”. Although some of the children’s complaints also grounded various notifications made to the Department of Family and Community Services (as that department was then known) (“the Department”), particular weight was attached to the fact that the Department took no further action and did not investigate the vast majority of the complaints even at a preliminary level. While the mother had also given evidence that she had hit the children in the past and at times restrained the older child in particular, I did not find that there was an unacceptable risk that she would use excessive physical discipline on the children or physically abuse them in the future. In assessing the magnitude of such risk, I had regard to the mother’s recognition of the problems inherent in physical discipline and her unchallenged evidence that it had been a long time since she engaged in such behaviour towards the children. Further consideration was given to the mother’s active engagement with various services including parenting programs, and records produced from one parenting program which indicated that the mother had made progress in her management and discipline of the children.

Decision

Reasons for decision

I accept that each of the children express unshaken views about not only wanting to spend unsupervised time with their father but having that time increase. I do not, however, consider it in their best interests to reopen the proceedings and expose them to litigation given their vulnerability to family violence and the need to protect them from tensions arising from the parental relationship which have been found in the earlier proceedings to put them at serious risk of emotional and psychological harm. CONCLUSION Having regard to the foregoing matters, there is in my view no evidence in the father’s application to establish a prima facie case of changed circumstances. Further, even if I were to accept there had been changes in the children’s circumstances as contended, these changes are not sufficient to justify reopening the proceedings having regard to the very limited prospect of success of the father’s application and the potential detriment to the children caused by the litigation itself. While I do not consider it in the children’s best interests that the 2016 orders relating to their time be revisited for the reasons given, it is not disputed that the children hold strong views about their regime of time with their father. It is in my view appropriate that they be provided with some information relating to the Reasons for my decision as recommended by the family consultant. The family consultant in her April 2020 report opined that if it were not determined that altering the children’s time with the father is in the children’s best interests, it would likely be of assistance to the children, particularly the oldest and middle child, if they understood the requirement for supervised time. In my view, this is particularly important where there are concerns raised by the father that the children, and in particular the middle child, “may vote with their feet and attempt to reach out to [him] and/or abscond”. While the family consultant also expressed the view that providing the children with such information is unlikely to “significantly alter their views”, she insisted that it may at least help the children develop a more “realistic” view of spending time with their father. Ultimately, each of the parties in the course of final submissions indicated that they supported such an order. In these circumstances, I consider it in the children’s best interests that an order be made that the ICL, with the assistance of a properly qualified person if deemed appropriate by the ICL, explain to the children in a child-focused way the supervision requirement of their time with the father. Orders are made accordingly.

Ratio Decidendi

Legal Principle Established

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