Blass & Blass (No 2)

Case [2021] FCCA 1588

FEDERAL CIRCUIT COURT OF AUSTRALIA

Blass & Blass (No 2) [2021] FCCA 1588

File number(s): NCC 2831 of 2015
Judgment of: JUDGE TERRY
Date of judgment: 16 July 2021
Catchwords: FAMILY LAW – Parenting – children aged 11 and almost 8 – second round of proceedings – where there have been ongoing difficulties with the mother complying with orders for the children to spend time with the father since they were made in 2018 – where the mother engaged the children in counselling without the father’s consent and where the counselling has been harmful – where the father has reached the point of applying for a change of residence – where the mother was unable to articulate the outcome she thought was best for the children but asked the court not to change their residence and said that she would use her best endeavours to comply with whatever order the court made about the children spending time with the father in the future – change of residence ordered – where unless this occurs the children will be exposed to ongoing stress and difficulty and may lose their relationship with their father – father to have sole parental responsibility for the children – mother to spend time with the children initially supervised but eventually each alternate weekend and for half of the school holidays.  
Legislation: Family Law Act 1975 (Cth) ss 60CC
Cases cited: Blass & Blass [2018] FCCA 2474
Rice & Asplund (1979) FLC 90-725
Radley & Holder [2017] FCCA 2799
Number of paragraphs: 229
Date of last submission/s: 28 May 2021
Date of hearing: 26 – 28 May 2021
Place: Newcastle
Counsel for the Applicant: Mr Willoughby
Solicitor for the Applicant: Parting Ways Law
Counsel for the Respondent: Mr Rugendyke
Solicitor for the Respondent: AW Simpson & Co
Counsel for the Independent Children’s Lawyer: Mr Bateman
Independent Children’s Lawyer: Emalene Gemmell Family Law

ORDERS

NCC 2831 of 2015
BETWEEN:

MS BLASS

Applicant
AND:

MR BLASS

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS THAT:

1.All previous parenting orders concerning X born in 2010 and Y born in 2013 (“the children”) are discharged.

2.The father shall have sole parental responsibility for the children, provided that he:

(a)Notifies the mother of any proposed decisions relating to the long-term care welfare and development of the children, including but not limited to:

(i)Proposed decisions about which school(s) the children shall attend.

(ii)Proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children.

(b)Ensures that any such notification is given to the mother in writing not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency.

(c)Takes into consideration any view expressed by the mother in respect of such proposed decision before making the decision.

3.The children shall live with the father.

4.The children shall spend time with the mother:

(a)Supervised by the D Contact Centre (“the contact centre”) at…

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Blass and Blass (No 2) [2021] FCCA 1588
Case
[2021] FCCA 1588
Decision Date

CaseChat Overview and Summary

In *Blass & Blass (No 2)*, Terry J of the Federal Circuit and Family Court of Australia considered parenting orders concerning two children, X (born 2010) and Y (born 2013). The dispute arose between the mother, Ms Blass, and the father, Mr Blass, following their separation in 2015. The court was tasked with determining the future living arrangements and parental responsibilities for the children, superseding previous orders made in 2018.

The central legal issues before the court were the children's primary residence, the allocation of parental responsibility, and the specific arrangements for the children to spend time with each parent. This included determining the extent and nature of the father's sole parental responsibility, the conditions attached to it, and the detailed schedule for the children's time with the mother, including supervised contact, progressively increasing periods of unsupervised time, and arrangements for school holidays and special days. The court also had to consider the impact of previous findings of family violence and the mother's allegations regarding the children's behaviour.

Terry J discharged all previous parenting orders. The court found that the father should have sole parental responsibility for the children, subject to specific notification and consultation requirements with the mother regarding long-term decisions about the children's welfare, education, and medical treatment. The children were ordered to live with the father. The mother's time with the children was to commence with supervised contact at a designated centre, with a phased introduction of unsupervised time, gradually increasing over several months. Detailed provisions were made for school holidays, including alternating arrangements in even and odd-numbered years, and specific orders for Mother's Day, Father's Day, and the Christmas period. The court also imposed injunctions on the mother, restraining her from attending school or extra-curricular activities without the father's consent, attempting to contact the children outside the ordered arrangements, removing the children from the father's care, or entering the children's residence without consent. The court expressed significant concerns about the mother's credit, particularly in relation to her affidavit statements about the children's behaviour and her willingness to comply with orders.

The court ordered that all previous parenting orders concerning the children be discharged. The father was granted sole parental responsibility, with the children to live with him. The mother's time with the children was to be supervised initially, with a progressive increase in unsupervised time over a defined period. Specific arrangements for school holidays, special days, and communication between parents were also detailed. Injunctions were placed on the mother restraining certain behaviours concerning the children and the father.

Orders

Orders of the court

NCC 2831 of 2015

BETWEEN:

MS BLASS

Applicant

AND:

MR BLASS

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS THAT:

1. All previous parenting orders concerning X born in 2010 and Y born in 2013 (“the children”) are discharged.

2. The father shall have sole parental responsibility for the children, provided that he:

(a) Notifies the mother of any proposed decisions relating to the long-term care welfare and development of the children, including but not limited to:

(i) Proposed decisions about which school(s) the children shall attend.

(ii) Proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children.

(b) Ensures that any such notification is given to the mother in writing not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency.

(c) Takes into consideration any view expressed by the mother in respect of such proposed decision before making the decision.

3. The children shall live with the father.

4. The children shall spend time with the mother:

(a) Supervised by the D Contact Centre (“the contact centre”) at such times and frequency as directed by the contact centre, but no less frequently than once per fortnight for a period of three (3) months from the date of these orders (and not from the date on which the first visit occurs).

(b) Thereafter and for a period of three months each alternate Saturday from 9:00am until 5:00pm.

(c) Thereafter and for a period of three (3) months each alternate weekend from 9:00am on Saturday until 5:00pm on Sunday.

(d) Thereafter each alternate weekend from the conclusion of school or 3:00pm on Friday until the commencement of school or 9:00am on Monday.

(e) At such additional or alternate times as may be agreed between the parties in writing (by email or otherwise).

5. Until the commencement of the 2022 Term 2 school holiday period the mother’s time in accordance with Order (4) shall continue during the school holiday period.

6. Commencing with the 2022 Term 2 school holiday period as applicable to the school the children attend the children shall spend time with the mother:

(a) in even-numbered years in each of the Term 1, 2 and 3 school holiday periods for the second half of the school holiday period from 9:00am on the day which is the midpoint of the holiday period until 5:00pm on the day prior to the commencement of the new school term; and

(b) in odd-numbered years in each of the Term 1, 2 and 3 school holiday periods for the second half of the school holiday period from 9:00am on the first day of the school holiday period until 5:00pm on the day which is the midpoint of the holiday period.

7. Commencing in the 2022 Term 4 school holiday period as applicable to the school the children attend the children shall spend time with the mother:

(a) in even-numbered years for the second half of each Term 4 school holiday period from 9:00am on the day which is the midpoint of the holiday period until 5:00pm on the day prior to the commencement of the new school term; and

(b) in odd-numbered years for the first half of the Term 4 school holiday period from 9:00am on the first day after the conclusion of school until 5:00pm on the day which is the midpoint of the holiday period.

8. Notwithstanding any other order the children shall spend the Mother’s Day weekend with the mother each year and if Mother’s Day falls on a weekend when the children would otherwise be with the father the children shall spend the Mother’s Day weekend with the mother in accordance with Order 4(d) and the following weekend with the father noting for the avoidance of doubt that this will result in the children spending two consecutive weekends with the mother.

9. Notwithstanding any other order the children shall spend the Father’s Day weekend with the father each year and if Father’s Day falls on a weekend when the children would otherwise be with the mother the children shall spend the Father’s Day weekend with the father and time in accordance with Order 4 on the following weekend noting for the avoidance of doubt that this will result in the children spending time on consecutive weekends with the father.

10. Commencing on Christmas Day 2022 notwithstanding any other order the children shall spend time with each of the parents during the Christmas period as follows:

(a) In even-numbered years:

(i) With the father from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and

(ii) With the mother from 2.00pm on Christmas Day until 2.00pm on Boxing Day.

(b) In odd-numbered years:

(i) With the mother from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and

(ii) With the father from 2.00pm on Christmas Day until 2.00pm on Boxing Day.

11. Changeovers which do not occur at school shall occur by the father or his nominee delivering the children to the mother or her nominee at the commencement of such time and the mother or her nominee delivering the children to the father or his nominee at the conclusion of such time at McDonald’s Restaurant, City D.

12. The parties shall each promptly contact D Children’s Contact Centre and undergo all necessary intake procedures to enable supervised time to commence on the basis that the family are privately paying clients.

13. The mother shall contribute $50.00 per visit to the cost of the supervision and the father shall otherwise pay the cost of the supervision.

14. Each party shall promptly advise the other party of their residential address, telephone number(s) and email address and if any changes occur that the other party is informed within twenty-four (24) hours of such change occurring.

15. The parties shall communicate via email, unless in the need of an emergency, in which case communication shall occur via telephone or text message.

16. Each parent is restrained from denigrating the other parent to or in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other parent.

17. These Orders are sufficient authority to permit any medical practitioner, dental practitioner, hospital, or medical practice, that the children attend from time to time to provide to the mother at her expense any information and reports regarding the children.

18. Each party as soon as practicable telephone the other parent upon the happening of any of the following:

(a) The child/ren becoming seriously ill;

(b) The child/ren being hospitalised; and

(c) The child/ren becoming involved in an accident requiring medical attention.

19. Each parent may obtain from the school copies of school reports, newsletters, order forms for school photographs or other information normally provided to parents. Pursuant to s.68B of the Family Law Act 1975 (Cth), the mother be and is hereby restrained by injunction from:

(a) Attending any school or extra-curricular activity attended by the children during the period of Orders 4(a) – 4(d) inclusive without the prior written consent of the father.

(b) Having or attempting to have contact with the children other than as permitted by these Orders NOTING THAT this Order does not prevent the mother from greeting the children should she see them in a public location.

(c) Removing or attempting to remove (either directly or through a third party) the children from the care of the father or from any person who may be supervising the children at the father’s request.

(d) Attending or entering any home that the children may from time to time reside, without the prior written consent of the father.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I will need to assess carefully the evidence about any issues which are in dispute and I cannot prefer the father’s evidence or anybody else’s simply because of credit issues, but my findings about credit will be relevant to the decisions I make about issues in dispute.Background The mother and father were in a relationship from 2007 to June 2015. They have two children, X, or X, born in 2010 and Y, born in 2013. The parties were 32 and 36 when they commenced cohabitation and the mother had two older children living with her, Ms G, was born in 1996, who was then about 11 and Ms E, who was born in 1997 and who was then about 9. The father filed an application for parenting and property orders in late 2015, not that long after the parties separated, and ultimately both matters went to trial. At the time of trial the children were seven and four. They were spending time with the father pursuant to interim orders but it was time during the day only. The father proposed that the children spend time with him each alternate weekend during school terms from Friday to Monday, each Thursday from 4.00pm to 7.00pm and for half of the school holidays. The mother proposed that the children spend time with the father each alternate weekend from noon on Saturday until noon on Sunday and each alternate Wednesday from the conclusion of school until 7.00 pm. She proposed that he spend three nights with the children in the term 1, 2, and 3 school holidays and seven nights in the Christmas school holidays each year. The Independent Children’s Lawyer supported more time than the mother proposed but less than the father proposed. The orders I made on 12 October 2018 were that the children spend time with the father each alternate weekend from Friday to Sunday and for block periods during the school holidays, beginning with four-night blocks and eventually becoming, by the Christmas school holidays 2020, a one-week block in the Term 1, 2, and 3 school holidays and two separate one-week blocks in the Christmas school holidays. During the first proceedings the mother raised family violence as an issue. I accepted that it had occurred and said as follows in my judgment:The wife loves the idea of being a mother. She was content to stay at home for a long period parenting Ms E and Ms G. After X and Y were born she was more than content and indeed considered it essential that she devote herself exclusively to her parenting role. The husband had no experience as a parent prior to the birth of X and he did not cope well with parenting Ms G and Ms E. He also became increasingly resentful as time went on that he was the only income earner in the household and was paying all the expenses for the wife, his stepdaughters and when they were born X and Y. The husband’s behaviour to the wife, to Ms E and to a lesser extent to Ms G became abusive and violent and there was an occasion when the husband kicked Ms G and the police were called.[3][3] Blass & Blass [2018] FCCA 2474 at [27] – [29]

Evidence

Evidence Before The Court

I must grapple with the dilemma however. There are existing orders in place, and pursuant to the Rule in Rice & Asplund[2] I must be satisfied that there has been a sufficient change of circumstances to justify reconsidering the earlier orders, but that is not in doubt and no party argued that the court was constrained from making orders different to the 2018 orders. [2] Rice & Asplund (1979) FLC 90-725The evidence In the father’s case evidence was given by the father, his friend Mr B and the paternal grandmother Ms C. Mrs C relied on a proof of evidence which was marked exhibit E, as well as on her affidavit. The mother was the only witness in her case. It was somewhat odd that the mother called no other witnesses. She alleged that the maternal grandmother had witnessed X’s problematic harmful sexualised behaviour. She said that the maternal grandmother was ill and that was why she had not asked her to give an affidavit but she also did not call her adult daughter Ms E. Ms E lives with the mother and the children and the mother told authorities who investigated allegations about X engaging in problematic harmful sexualised behaviour that Ms E had witnessed some of this behaviour. Ms E gave evidence on the mother’s behalf during the first trial and the mother offered no explanation for why she was not called this time. A family report was prepared by Ms F, a Regulation 7 family consultant. The father, paternal grandmother, the mother and the family consultant were cross-examined. Mr B was not required. His evidence was brief and it went to an incident on 26 September 2020 when the mother alleged the father became aggressive at a changeover. Mr B said that simply did not happen. A tender bundle was prepared and the parties identified at the end of the trial the documents they wished the court to read. I have considerable concerns about the reliability of the mother’s evidence. There was not a single mention in her affidavit about the children ever enjoying their time with the father. However during cross-examination she said as follows: I think Mr Blass has something to offer the girls. They seem to enjoy spending time with him. He takes them to the dam. She also referred to the fact that he played more “rough and tumble” games with them and when she was asked if he loved them she said yes, and said that she told the children that both of their parents loved them. Another concern I have about the mother’s credit arose out of the evidence given by the paternal grandmother about something the mother said to her recently at a sports game. The mother denied saying it and one of them is not telling the truth. It is not a case which might come down to a difference of interpretation. Due to other issues in the case I prefer the evidence of the paternal grandmother about what happened on that occasion. Another relevant credit issue is that the mother was asked whether her relationship with Ms G and Ms E’s father, with whom she is currently on friendly terms, involved domestic violence. She denied that was the case and when it was put to her that the family report writer who prepared a report in the first proceedings recorded that there had been domestic violence in that relationship she said it was not true and the father had given that information to the family report writer.

Decision

Reasons for decision

I will return to that after I make a finding about the children’s living arrangements.Conclusion Absent any other issues the optimal outcome for the children would be for them to live with their mother and spend time with their father pretty much as the current orders provide. The children are content with that arrangement. They have fun with their father and from the exchanges at the family report interviews have trust in him to look after them and give them advice, but their mother has always been their primary carer. She has done a good job looking after them in many respects. The father might be content with this outcome as well provided that there was no impediment to him spending time with the children. He could continue to do the work he is doing and he could spend regular enjoyable time with the children. The mother’s counsel urged me to do something like that. He submitted that the mother had instructed him to propose that the children remain living with her and that the Court to accept her assurance that she would use her best endeavours to comply with whatever orders the court considered best about them spending time with their father in the future. He submitted that a solution to the changeover problem would be to extend the father’s weekend time to Monday morning before school and order that the children spend the first half of every school holiday with the father. The mother’s only job in those circumstances, he said, would be to get the children to school, and she had recently shown that she could do that. On most occasions this year the children had attended school on the Friday and the father had been able to pick them up. He submitted that the mother had been the children’s primary carer all their lives and their preference was to live with her and spend the alternate weekends with the father and the court should give that a chance to work. The mother’s counsel said that the mother had heard the evidence at trial about the children enjoying time with their father, such as the independent evidence from the teacher. He said that it had also been brought home to her that if the orders were not complied with in the future a change of residence was possible. He said that it was only at the trial that it had finally dawned on her that this could happen and he urged me to give her another chance. I observed after hearing his submissions that the mother could not have asked for more eloquent submissions to be made on her behalf, and I have carefully reflected on the possibility of doing that. Different judges approach their task differently but I always make orders for a change of residence in situations like this with a very heavy heart because they do result in loss as well as gain for the children. However I cannot do what the mother’s counsel asked me to do. The mother made concessions at trial that the children enjoyed their time with their father and that it was beneficial for them to spend time with him, but her affidavit, which was filed only a couple of weeks earlier, she continued to maintain that X was engaging in problematic harmful sexual behaviour although she said that her attempts had shifted to a more calculated/private setting and that she was managing to keep Y safe.[30] Her affidavit also contained extremely strong statements about the children not wanting to go with the father. She said as follows: [30] Mother’s affidavit paragraph 23I was optimistic that psychological intervention would assist the subject children more than it has. Whilst it has proved beneficial, X continues to engage in problematic sexualized behaviours, the ‘meltdowns’ (which include the subject children hitting, kicking, verbally abusing, throwing objects, pushing, and shoving me and one another) are ongoing, and X has also developed a tendency to seek solitude for some time, on returning from Mr Blass’s care.……………………All I can submit to this honourable Court is that the above submissions are what I have observed the subject children to say or do for several years without improvement despite psychological interventions. I fear the subject children will only take more extreme measures than they already have, to avoid spending time with Mr Blass in future. I understand the importance of the subject children having a meaningful relationship with Mr Blass. However, I do not wish to hear or see them suffer because they are being forced to do something they do not wish to do. I feel the subject children are old enough to have their feelings and concerns heard and acted upon accordingly. Or at least considered with some weight.[31][31] Mother’s affidavit paragraphs 22 & 31

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.