Bondai and Bretton
[2012] FamCA 429
•8 June 2012
FAMILY COURT OF AUSTRALIA
| BONDAI & BRETTON | [2012] FamCA 429 |
| FAMILY LAW – CHILDREN – interim application for summary dismissal of substantive proceedings having regard to Rice and Asplund principles – where previous orders are eighteen months old – where previous orders were made by consent on the last day of a five day trial that included a lot of expert evidence – where the father was to be reintroduced to the children with the therapeutic assistance of a psychiatrist – whether the failure of reintroduction as expected by the orders amounts to a change in circumstances – where the trial judge made it clear in reasons that a failure of reintroduction would be a significant and outstanding change of circumstances – where the therapeutic assistance of the psychiatrist failed to effect reunification of the children with the father – whether a fresh application by the father for substantively changed parenting orders should be dismissed – whether there is a likelihood of orders being varied in a significant way as a result of a new hearing – whether when things do not actually occur as envisaged in the Court’s orders that amounts to a change of circumstances sufficient for Rice and Asplund purposes – where the existing orders could be varied in a significant way as a result of new hearing – whether the father’s substantive application should be given an expedited hearing due to not having spent time with the children for a long time – where the application does not bear features that justify it being given priority over all other cases already in list |
| Family Law Act 1975 (Cth) Division 12A |
| Rice & Asplund (1979) FLC 90-725 SPS v PLS (2008) FLC 93-363 Miller & Harrington (2008) FLC 98-283 Marsden & Winch (2009) FamCAFC 152 Reid v Lynch (2010) FLC 93-448 |
| APPLICANT: | Mr Bondai |
| RESPONDENT: | Ms Bretton |
| FILE NUMBER: | BRC | 13855 | of | 2007 |
| DATE DELIVERED: | 8 June 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 29 May 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr A Smith |
| SOLICITOR FOR THE APPLICANT: | Hogan Stanton |
| COUNSEL FOR THE RESPONDENT: | Mr G Page SC |
| SOLICITOR FOR THE RESPONDENT: | Lynn & Rowland |
Orders
That the mother’s application filed 7 February 2012 in which she seeks dismissal of the father’s substantive application for parenting orders filed 16 December 2011 is dismissed.
That the father’s application for interim and procedural orders contained within his Initiating Application filed 16 December 2011 is dismissed.
That pursuant to s 68L(2), the interests of the children B Bondai born … March 2000 and E Bondai born … April 2001 be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the children's interests.
That the matter is adjourned to the Registrar for the making of all such directions as might be necessary for the further progress of the matter, including, if considered appropriate, directions for the final hearing of the matter.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bondai & Bretton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC13855/2007
| Mr Bondai |
Applicant
And
| Ms Bretton |
Respondent
REASONS FOR JUDGMENT
Introduction
On 16 December 2011, Mr Bondai, the father of B aged 12 and E aged 10, filed an Initiating Application in the Court in which he seeks final orders that those two children live with him, that he has sole parental responsibility for them and that they not spend any time at all with their mother for six months and then only supervised time for the next six months before progressing to unsupervised time.
The father has not spent any time with B for three years and with E for two and a half years. It is clear that he asserts that this is attributable to conduct of the mother that has alienated the boys from him and that his position is that now the only way to address this, in the best interests of the boys, is to undertake what is sometimes referred to as a “cold switch” or “flooding”, that is moving them straight to his care and not allowing them to spend any time with or to communicate with their mother for a period of some time thereafter.
The father also applies for the listing of his application for trial to be given priority over other matters in the Court’s list, given the length of time since the two children spent any time with him.
The mother filed a Response to Initiating Application on 7 February 2012. In that, she sought an order that the father’s application filed 16 December 2011 be summarily dismissed. Her case is perhaps most easily described, at this point, as one in which she seeks to invoke the principles first discussed in Rice and Asplund (1979) FLC 90-725. That application and the father’s application for the substantive proceedings to be listed with priority were heard by me on Tuesday 29 May 2012.
SOME RELEVANT HISTORY
The mother and father began cohabitation in February 2000. The two children were born over the next two years and the couple married in December 2002. They separated in or around late 2006/early 2007 and their marriage was dissolved in 2008.
The father’s evidence is that he and the mother shared care of the children initially after separation on a 3 days/4 days basis before changing to a week about arrangement in September 2007. His evidence is that in May 2008, the mother withheld the children from him. Parenting proceedings pursuant to the Family Law Act were commenced by the father immediately thereafter and the parties have effectively been in serious dispute and involved in litigation about what is in the best interests of their two children ever since.
Parenting orders reinstating the children spending time with the father were initially made in the Federal Magistrates Court before the father says the mother withheld the children from him again in March and August 2009 respectively.
The matter was transferred to this Court in 2010 and a five day trial took place before O’Reilly J on 4-8 October. The mother and the father were each represented by experienced counsel and an Independent Children’s Lawyer (“ICL”) was also a party and represented by experienced counsel. There is no dispute that a great deal of expert evidence was adduced in the proceedings before her Honour.
On the final day of the five day trial, O’Reilly J made an extensive set of parenting orders with the consent of all of the parties. She also had to determine one issue that the parties remained in dispute over. The orders her Honour made included the discharge of all previous parenting orders and the conferral of equal shared parental responsibility for the two children on the parents. Relevantly, the orders went on to include the following paragraphs:
7.That the Mother and the Father and children attend upon Dr [W] for counselling at such time and frequency as directed by Dr [W] through the Independent Children’s Lawyer with the objective of assisting both parties in their conflict and to facilitate and monitor the reintroduction of the Father to the children.
….
18.That upon a satisfactory reintroduction of the Father into the children’s lives, under the guidance of Dr [W], the children spend time with the Father at all times as agreed between the parties but failing agreement as follows:-
Then follow what can be appropriately described as standard provisions for alternate weekends, half of school holidays and special days, in addition to regular and frequent telephone communication.
The orders continue:-
19.That upon the children’s time commencing with the Father in accordance with order 18 above:-
Then follow more standard provisions for the sharing of information between the parents about the children.
The orders continue further:-
20.That the Independent Children’s Representative not be discharged until 12 months from the date of this order.
21.That Dr [S] continue to be the boys’ therapeutic practitioner and Dr [S] is authorised to discuss the children’s matters with Dr [W].
22.That in the event the children travel overseas with the Father, the Mother shall make the children’s passports available. Upon the Father’s return the children’s passports shall be returned to the Mother at the next changeover.
23.Subject to order 19 (a), should the children wish to participate in religious activities during the time they are with the Father, the Father will facilitate same including the attendance by the children at school based Easter celebration activities.
NOTATION: The parents acknowledge that the intention of these orders is to put in place a child focused means by which the children might be reintroduced to the Father and spend substantial and significant time with him.
O’Reilly J gave brief reasons for judgment upon the making of those orders. Those reasons included the following relevant paragraphs:-
2.Part of the agreement is that the children live with the mother, and after being reintroduced to the father satisfactorily under the guidance of Dr [W], psychiatrist, they spend time with the father at all times as agreed between the parties, but failing agreement each alternate weekend ….
…
13. …
Now, I will also place or the record an observation I made about my reason for making final orders, which is now by consent, …..and I will now place on the record, in case things go off track in future, that I’m mindful of the rule in Rice & Asplund (1979) FLC 90-725, but since then there have been the decisions of Miller & Harrington (2008) FLC 98-283 at 72, and Marsden & Winch (2009) FamCAFC 152 at 41-47 first sentence.
As the latter two authorities show the rule is now applied taking into account best interest considerations, and the Court also must apply the provisions of Division 12A of the Act. Now, as the trial judge in this matter I can state that the final consent orders which have been made, and the one which I have determined, are all predicated upon the notation to the orders that the parents acknowledge that the intention of the orders is to put in place a child focused means by which the children might be reintroduced to the father and spend substantial and significant time with him.
Order 18 is clear in its terms that upon – not if – but upon – a satisfactory reintroduction of the father into the children’s lives under the guidance of Dr [W] the children spend time with the father at all times as agreed between the parties, but failing agreement as set out. There is nothing in the orders that is predicated upon a presumption that if the proposed reintroduction fails then that’s the end of the matter and the boys and the father will continue to have no relationship. That’s not the way it works.
In my mind there is no doubt whatsoever that if a satisfactory reintroduction through Dr [W] is not achieved that in itself will be a significant and outstanding change of circumstances, not in the present relationship between the parties, but the predication of the success of these orders. If, therefore, they don’t work, and I sincerely hope that they do in the best interests of the children, if they don’t work then there will not be a barrier to the father instituting fresh proceedings for the children to be removed from the mother and to live with him.
The father thereafter attended two appointments with Dr W in November 2010. According to the report of Dr W dated 29 November 2011 provided to the ICL by the doctor and put into evidence before me by the father, the mother attended two appointments with him as well. Dr W also reported that the child, B, attended upon him twice and the child, E, attended upon him once.
The father deposes that Dr W told him on 16 June 2011 that he was unable to effect reunification of the children with the father.
Relevantly, under the heading “Conclusions”, in his report, Dr W says:-
Both parents describe the older child, [B], appearing to have more difficulty separating from his mother to spend time with his father. He would attempt to ring his mother frequently as a form of self medication for his anxiety and she would allegedly take him from his anxiety by removing him from his father’s care. Unfortunately, these actions would have only served to reinforce his anxiety about being with his father. This anxiety has been blamed on his father’s treatment of him however there is little evidence to support this contention. The only significant physical conflict either boy could remember was when [B] attacked his father with supporting (sic – probably “sporting”) equipment when he was trying to prevent him from ringing his mother. I would assume that [B] was having a Panic attack at the time.
It is more acceptable for [B] to “blame” his anxiety on his father and it is certainly congruent with his mother’s beliefs about the father. Avoiding his father means that he does not have to confront his anxiety but it does not fix the problem. The longer the period of separation the more entrenched and sever the anxiety becomes until [B] is having anxiety at the mere mention of his father. This anxiety is severe, clinically significant, out of keeping with the threat his father poses and has lead to avoidance behaviour. If [B] reacted in this fashion to any separation from his mother than he would be diagnosed with a Separation Anxiety Disorder but he and his mother report that he is able to separate from her without problems to go to friends’ houses or school camps. As such, [B] would meet the DSM 4 diagnostic criteria for a Specific Phobia Disorder centred on his father in the midst of an acrimonious custody battle. It would appear that [B’s] mother has either consciously or inadvertently reinforced his anxiety by assisting him in avoiding his father.
In the current circumstances, it is too potentially dangerous to attempt to treat [B’s] anxiety by graduated exposure to the feared object in the controlled environment of my rooms. As outlined above [B] had a Panic Attack and ran away from my rooms with no thought of his own safety. Any treatment would require the full support of both parents and either graduated exposure in a safe environment such as a psychiatric ward or the Family Court offices or a “flooding” exposure whereby [B] is removed from his mother’s care and placed with his father for an extended period of time without contact with his mother. This would only work if [B] was unable to run away and reconnect with his mother. [E] does not have a significant anxiety disorder about his father and has just mirrored his older brother’s behaviour. If [B] was able to deal with his anxiety and reconcile with his father [E] would most likely follow.
Soon after receiving a copy of that report, the father filed his Application Initiating Proceedings along with a rather long supporting affidavit that had Dr W’s report attached. The father’s position is clear. He contends that the opinions expressed by Dr W support a finding that the mother is alienating the boys from him, contrary to their best interests and that they now need to live with him to give them the chance of having a relationship with both parents.
He also includes some other evidence in his affidavit to support his contention that the mother’s actions are alienating the children from him. He contends that the mother, whilst expressing commitment to re-establishment of the children’s relationship with their father, does not act consistently with actually having such a commitment. He includes in his affidavit the assertion that the mother only provided him with copies of the children’s December 2010 school reports in mid-January 2011 after he requested them from her, although the existing orders actually oblige her to provide them to him immediately upon receipt of same. Although the mother filed a second affidavit on 28 May 2012 in which she responded to some of the father’s evidence, she did not respond to these assertions.
THE MOTHER’S SUBMISSIONS
In his submissions, Senior Counsel for the mother referred to the discussion of “the “Rice v Asplund” grounds” set out in the Full Court’s decision in Marsden v Winch that O’Reilly J had referred to in her reasons. He particularly referred to Warnick J’s remarks in the decision of SPS v PLS (2008) FLC 93-363 that were referred to by the judges of the Full Court in Marsden in their joint judgment. Clearly, he was submitting that those are the applicable principles in the determination of the mother’s application.
Senior Counsel submitted that O’Reilly J was “in error” when her Honour said what she did in paragraph 13 of her reasons quoted above. He contended that notwithstanding that which her Honour said, the authorities demonstrate a requirement for a change of circumstances sufficient to justify the alteration of a previous order and that there is no such change of circumstances here in this case. Senior Counsel stressed that the authorities confirm that to involve children in ongoing litigation is detrimental to their welfare and that is what must be considered in this case.
THE PRINCIPLES
There appears to be no doubt that the Court has the discretion, on a preliminary inquiry, to dismiss parenting proceedings, subsequent to others having previously been finally determined, if it determines that proceeding to another hearing would itself “be demonstrably contrary to the best interests” of the subject child or children. (see Rice v Asplund (1979)FLC 90-725; SPS v PLS (2008) FLC 93-363; Miller v Harrington (2008) FLC 93-383; Marsden v Winch (2009) 42 Fam LR and Reid v Lynch (2010) FLC 93-448)
In their joint reasons for judgment in Marsden v Winch, Bryant CJ, Finn and Cronin at [50], said this decision whether to dismiss parenting proceedings or [1]to embark on another hearing is “a decision to be made in each particular case” and is to be made by looking at:
(i)The past circumstances, including the reasons for the decision and the evidence upon which it was based;
(ii)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing; and
(iii)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[1] Per O’Ryan J at [238], with whom Finn and Strickland JJ agreed.
Although their Honours did not expressly refer to any need to find changed circumstances, I accept that the requirement to consider the past circumstances as well as the question of whether there is a likelihood of orders being varied in a significant way as a result of a new hearing clearly includes the need, authoritatively established before the Marsden v Winch decision and reaffirmed in Reid v Lynch1, to be satisfied that there is some changed circumstance or some new factor arising or some factor which was not disclosed at the previous hearing that would, likely, support a variation of those orders in a way that would benefit the children more than any disruption caused by re-litigation.
THE APPLICATION OF THE PRINCIPLES IN THIS CASE
Although it was not expressly discussed at the hearing, I am satisfied that there was a clear understanding by the parties and their legal representatives that the Court was being asked to determine the matter as a preliminary question on the evidence that was put before the Court on the application.
There was some discussion about whether or not affidavit evidence of a number of experts that was considered by O’Reilly J at the five day trial of the competing applications in October 2010 should be read and considered by me, and Senior Counsel for the mother actually made some reference to some of that evidence in his written submissions. After hearing submissions from both counsel on the point, I determined not to read all of that evidence in the circumstances of the hearing of the application before me. That course, I understood, was accepted by the parties, through their legal representatives, at the time.
I acknowledge that I cannot be determinatively bound by O’Reilly J’s pronouncement, in her reasons, that if the orders her Honour made did not work that they “will not be a barrier to the father instituting fresh proceedings for the children to be removed from the mother and to live with him”. However, having regard to the matters that the Full Court stated are to be considered when determining an application such as this, given that her Honour’s orders were made predominantly by consent after a five day hearing, the things her Honour said in her reasons must, respectfully, be given appropriate weight in the exercise of the discretion.
Her Honour’s orders, it is clear, were predicated on an expectation that the process of therapeutic reintroduction of the father into the lives of the boys would be successful. They did not contemplate failure and having been made with the consent of the parties after consideration of all of the evidence in the matter, it is, in my view, reasonable to accept that all the parties, as well as O’Reilly J, expected such a reintroduction to work. In any event, on their face, the orders are clear in their meaning. Counselling was to take place with the psychiatrist and when the children were satisfactorily reintroduced to the father they were to begin spending substantial and significant time with him.
Having said all that, it appears to me that a significant question for determination now is whether when things do not actually occur as envisaged in the Court’s orders that can be a change of circumstances within the bounds of the applicable principles. I consider that the answer to the question just posed is yes. Whether the change of circumstances, having regard to the evidence in each particular case, is enough to allow the substantive application to proceed is another question.
In the case currently under consideration, I am satisfied that the failure of the expected reintroduction of the children to their father is a change in circumstances occurring since the previous orders were made. I am also satisfied, on the evidence currently before me, that there is a likelihood of the existing orders being varied in a significant way as a result of a new hearing. The father seeks orders that would result in a dramatic change to the parenting arrangements applicable to the children. That, of course, will only happen if it is found to be in the best interests of the children. That is unlikely to be found to be the case if the father does not make out his case of alleged alienation by the mother.
The evidence, albeit untested, that persuades me, ultimately, to dismiss the mother’s application is the opinion evidence of the psychiatrist, Dr W, which I have extracted from the conclusions in his report and quoted earlier in these reasons, as well as the evidence of the father that I have referred to in paragraph 17 of these reasons. In particular, Dr W’s opinion that it appears the mother has either consciously or inadvertently reinforced the eldest child’s anxiety by assisting him in avoiding his father coupled with the evidence of the father is evidence satisfying me, at this point in time, that the existing orders could be varied in a significant way as a result of a new hearing. The treatment options set out by Dr W clearly reflect ways in which the orders could, ultimately, be significantly varied.
I am mindful that the ongoing litigation itself and any continued conflict between the parents are potentially detrimental to these two children, but the nature of the significant change that might be the end result of further proceedings, namely orders that facilitate the children being able to have meaningful relationships with both parents rather than just one, in my view, on balance, justifies permitting the father’s substantive application to proceed.
SHOULD THE FATHER’S APPLICATION BE GIVEN AN EXPEDITED HEARING?
The father, anguished as he no doubt is about not having seen his children for a long time, asks the Court to expedite the hearing of his substantive application. Of course, it is open to the Court to do so if it is persuaded that the circumstances justify such an order.
Ordering expedition is an exercise of discretion that involves the careful balancing of many factors. I am not persuaded, in this particular case, that expedition is justified.
The parties have been in dispute and litigating about parenting these two children for several years now. The matter was in this Court’s list awaiting trial for several months in 2010. It took up five days of the Court’s trial time in October that year, culminating in resolution of the dispute reflected in final orders, made, principally, with the consent of the parties, albeit with some reservations expressed by the ICL as noted by O’Reilly J in her reasons for judgment. Fourteen months later the father filed an application seeking significant changes to those consent orders, not having seen the children at all as envisaged by those orders.
Of course, the father has a legitimate interest in having his application heard as quickly as possible. The children’s best interests will be served by finality of litigation involving them as soon as possible. However, there are many litigants with matters in this Court’s list awaiting trial. Many, if not all, of them have just as legitimate an interest in having their matters heard as quickly as possible as the parties in this case. Many such cases involve parenting matters where children have not seen or spent time with their one of their parents for a long time.
On balance, I cannot say that I am satisfied that this matter bears features that justify it being given priority over all the others that are awaiting hearing in the list. I will not make such an order. However, that said, the matter will now be case managed by a registrar of the Court and as soon as the registrar is satisfied that it is ready for trial, its listing for trial will be considered as soon as it can be fitted in with the Court’s listing arrangements thereafter. Making it ready for trial as quickly as possible, and thus getting the matter listed as soon thereafter as it can be, is within the purview of the parties and their legal representatives.
AN INDEPENDENT CHILDREN’S LAWYER
At the hearing, I raised the question of whether an ICL should be appointed. The parties, as I understood their responses, both supported such an order. Senior Counsel for the mother submitted that it should not be the same ICL as was previously in the matter. That ICL had been the subject of an unsuccessful application by the mother to have her removed from continuing to be the ICL in the matter after the previous final orders had been made.
I am satisfied that the appointment of an ICL is justified in this case having regard to the apparent conflict between the parents, the allegations of alienation and the expert diagnosis of the eldest child’s anxiety disorder. I will make an order in the usual form. I do not consider it appropriate, at this point in time, to restrict the Legal Aid Queensland in its selection of the ICL. I am not persuaded that the previous ICL should necessarily not be considered just because it is apparent the mother lost confidence in that ICL’s capacity to discharge her responsibilities independently and objectively.
My orders are as set out at the outset of these reasons.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 June 2012.
Associate:
Date: 8 June 2012
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