FEDERAL CIRCUIT COURT OF AUSTRALIA
| BROWN & HAYDEN | [2021] FCCA 134 |
| Catchwords: FAMILY LAW – Parenting – Rice & Asplund – significant change in circumstances to ground a reopening of final parenting orders – best interest considerations. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 68L, 117 |
| Cases cited: Rice & Asplund [1978] FamCA 84 Carriel & Lendrum [2015] FamCAFC 43 Phillips & Hansford (No 2) [2019] FamCAFC 165 King & Finneran (2001) FLC 93–079 Newling & Mole [1987] FamCA 21 McEnearney & McEnearney (1980) FLC 90–866 Freeman & Freeman [1986] FamCA 23 Houston & Sedorkin (1979) FLC 90–699 Bennett & Bennet [1990] FamCA 148 SPS & PLS [2008] FamCAFC 16 Goode & Goode [2006] FamCA 1346 Banks & Banks [2015] FamCAFC 36 R & R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MR BROWN |
| Respondent: | MS HAYDEN |
| File Number: | SYC 2773 of 2010 |
| Judgment of: | Judge Kemp |
| Hearing date: | 10 December 2020 |
| Date of Last Submission: | 10 December 2020 |
| Delivered at: | Sydney |
| Delivered on: | 2 February 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gardiner |
| Solicitors for the Applicant: | James & Jaramillo Legal Pty Ltd |
| Counsel for the Respondent: | Ms Kennedy |
| Solicitors for the Respondent: | Marks Griffiths & Bova |
THE COURT ORDERS THAT:
The father’s Initiating Application filed on 21 April 2020 be dismissed.
The question of the mother’s costs be stood over for further determination in accordance with the following directions.
If the mother seeks costs, an appropriate written application quantifying the same may be made within 28 days of today’s date, (supported by any documentary material, including a verified financial statement) to be filed and served within that time period and a copy forwarded to Chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.
Save as to the above, the matter is removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Brown & Hayden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2773 of 2010
| MR BROWN |
Applicant
And
| MS HAYDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter final parenting orders were made on 2 July 2014 in the Family Court of Australia by Justice Loughnan (“the final orders”).
The final orders related to the child of the parties’ relationship, X, born in 2009 (“the child”), currently aged 11 years and were made following an undefended hearing with an ex-tempore judgment, although no copy of that judgment has been produced and relied upon in these proceedings. On the occasion that the final orders were made, the Family Court of Australia’s record indicated that the father had appeared self-represented by telephone for a period of, approximately, 30 minutes. Ms Mordant appeared for the mother and Mr Braine of Counsel appeared for the Independent Children’s Lawyer.
The final orders were to the following effect:
(1)That all previous parenting orders in relation to the child be discharged.
(2)That the mother have sole parental responsibility for the child.
(3)That the child live with the mother.
(4)That the child spend no time with the father.
(5)That, other than as specified in order 7, the father is restrained from communicating directly with the child.
(6)That the father should be at liberty to provide the mother with his current contact details including residential address, phone numbers, and email address.
(7)That the father shall be at liberty to send the child cards, photos, letters, and gifts, and the mother shall ensure the child receive(s) anything sent to her from the father.
(8)That the mother shall continue to provide the father with contact details of where the child resides and to which he may post the items referred to in the above order.
(9) That the mother be restrained from denigrating the father or making derogatory remarks about the father to the child in her presence or hearing.
The final orders were made following the receipt by the Family Court of Australia of a single expert report produced by Dr B (“the family report”), as referred to in paragraph 18(ee), below.
The current proceedings relate to the father’s filing of an Initiating Application in this Court on 21 April 2020, which sought orders for the child to live with the mother and to spend defined time with him on a final basis, being each alternate weekend from the conclusion of school on Friday (or 3.00pm) until Sunday at 5.00pm, every Wednesday from the conclusion of school (or 3.00pm) until 7.00pm and at any other time as agreed to between the parties. The father’s said application also provided for other times with the child on special occasions, for changeovers, together with various other specific issue parenting orders.
The father, by way of his interim relief, sought that orders 3 to 8 of the final orders be discharged (notwithstanding that order 3 provided for the child to live with the mother and the father did not seek to disturb that order being made on a final basis); that the parties individually contact a family relationship centre and obtain a referral from the convener of that centre to enrol in and attend an appropriate post-separation course and with both parties to provide to the other on completion of any coursework a certificate of completion; the appointment of an Independent Children’s Lawyer for the child pursuant to s.68L of the Family Law Act1975 (Cth) (“the Act”); for the parties and the child to attend family therapy with Ms C (“Ms C”) of D Counselling and that upon the recommendation of the family therapist, the father then spend time with the child on the first Saturday of each month from 10.00am until 12.00pm, on Father’s Day from 10.00am until 12.00pm, on the Sunday closest to the Father’s birthday from 10.00am until 12.00pm and at any other times as agreed to between the parties.
The mother filed her Response to the father’s Initiating Application on 1 July 2020, which sought both on a final and interim basis that his said application be dismissed with the father to pay her costs on an indemnity basis.
When the matter first came before this Court on the return of the father’s said application, being 8 July 2020, the Court made directions with respect to the hearing of the matter and adjourned the proceedings to 10 December 2020 for hearing the Rice & Asplund [1978] FamCA 84 (“Rice & Asplund”) issue raised by the mother in terms of her orders for the dismissal of the father’s said application.
The father was represented by Mr Gardiner of Counsel. The mother was represented by Ms Kennedy of Counsel. The hearing was conducted via Microsoft Teams.
The father relied on the following:
a)His affidavit, affirmed on 19 November 2020 and filed on 20 November 2020, which was adopted by him in Court on 10 December 2020, noting that COVID-19 issues had prevented him from having his affidavit affirmed in the presence of a relevant witness;
b)The affidavit of Mr E (“Mr E”), affirmed on 18 November 2020 and filed on 19 November 2020;
c)The affidavit of Mr F (“Mr F”), affirmed on 18 November 2020 and filed on 19 November 2020;
d)The affidavit of Mr G (“Mr G”), affirmed on 18 November 2020 and filed on 19 November 2020;
e)The affidavit of Ms H (“Ms H”), affirmed on 18 November 2020 and filed on 19 November 2020;
f)The affidavit of Ms J (“Ms J”), sworn on 18 November 2020 and filed on 19 November 2020; and
g)The affidavit of Mr K, affirmed on 20 November 2020 and filed on 24 November 2020.
The affidavits identified in 10(b) to (g) above were not, on their face, sworn in the presence of a relevant witness. While those persons were not available when the matter was before the Court for hearing, Ms Kennedy indicated that no technical point would be taken with respect to those affidavits and their reception by the Court in the form filed.
The mother relied on the following:
a)Her affidavit sworn on 29 June 2020 and filed on 1 July 2020; and
b)The affidavit of her husband, Mr L (“Mr L”), sworn on 29 June 2020 and filed on 1 July 2020.
The following documents were placed into evidence as follows:
Exhibit No
Document
Tendered by
A
Letter from M Law Firm (“M Law Firm”) to the mother dated 8 July 2015 together with paragraph 31 of the father’s affidavit affirmed on 20 April 2020 and Annexure “F” to that affidavit being a letter from M Law Firm bearing the date of 1 July 2015 addressed to the mother
Father
1
Letter from M Law Firm dated 23 November 2020 enclosing a copy of the subpoena issued to that firm dated 10 November 2020 and a copy of correspondence sent by the mother to M Law Firm in satisfaction of paragraph 2(e) of the said subpoena. The letter confirmed that in relation to paragraphs 2(a) to (d) of the said subpoena, searches had been unable to locate the items referred to in those paragraphs
Mother
Jurisdiction
The Court has the power in relation to the variation of the final orders as set out in s.65D of the Act. Mr Gardiner on behalf of the father conceded that litigation should be avoided “unless it is first demonstrated that sufficient change in circumstances has occurred” since the final orders were made; see Carriel & Lendrum [2015] FamCAFC 43.
Ms Kennedy on behalf of the mother submitted the following:
a)The proceedings before the Court raise the question of whether there has been a sufficient change in circumstances that would justify the Court re-visiting the issue of the final orders upon a fresh application being filed by the father. Ms Kennedy referred to a long list of authorities, commencing with Rice & Asplund that set a high bar as to when the change of circumstances are of sufficient import as to require a Court to embark upon a fresh hearing. In that regard, it is worthwhile repeating what Chief Justice Evatt said in Rice & Asplund, where it was noted:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for… change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.”
b)Because of and since the case of Rice & Asplund, there has been developed a rule that before there would be a review of final parenting orders, there would need to be a significant change in circumstances so as to protect children from being exposed to ongoing litigation.
c)Essentially, the rule in Rice & Asplund has become a threshold issue so as to protect the interests of children, for whom repeated applications to vary final parenting orders, when there are insubstantial or no new circumstances to be brought before the Court, are damaging. Such children need stability above all, given that their lives have already been fundamentally affected by the activities of their parents. This is not to say that a fresh examination of circumstances is never necessary; merely to point out that unless there have been fundamental changes since final parenting orders, such an application for a rehearing will probably not succeed.
d)In the recent matter of Phillips & Hansford (No 2) [2019] FamCAFC 165, the Full Court of the Family Court of Australia (Strickland, Ainslie-Wallace and Aldridge JJ) when considering the extent to which the rule in Rice & Asplund should be applied said:
34. The rule in Rice and Asplund is not an immutable rule. As a “manifestation of the ‘best interest principle’” (SPS & PLS at 82,451), it does not trump other considerations that are also in the children’s best interests. Thus, unremarkably, the primary judge found that a short term variation of the orders, pending a full consideration of whether the orders should more generally be reconsidered, was in the children’s best interests. It follows, therefore, that the primary judge did not err and did not deny the parties procedural fairness by not conducting a Rice and Asplund hearing on 28 February 2019.
e)While a change in circumstances is the threshold test for the Court, even if a change in circumstances was established, the Court will then look at how this measures up in terms of the best interests of the child. When contemplating an appeal using Rice & Asplund grounds – a significant or fundamental change of circumstances – the father should be aware that as change itself is an inherent part of life, such an appeal will require more than just the argument that change has occurred.
f)The facts giving rise to Rice & Asplund dealt with the living arrangements for the parties’ 3-year-old daughter. The Court had, previously, made orders for the child to live with the father. Around 9 months after the original orders were made, the mother brought an application to vary the orders. The mother’s application sought orders that the parties’ child live with her and spend time with the father. The mother’s application was, ultimately, successful. The mother brought her application as there had been significant changes in her circumstances following the making of the final parenting orders. These changes meant that the final orders made the previous year no longer reflected the best interests of the child. Therefore, the Court agreed to vary the final orders in accordance with the mother’s application.
g)The rule in Rice & Asplund, places an onus on an applicant who seeks a variation of earlier final parenting orders to satisfy the Court that there has been a change in circumstances, since the original orders were made, sufficient to require the matter to be re-visited by the Court.
h)There are 2 broad categories of change that may be relied upon to satisfy the said rule. First, the applicant may show some material factor that was not disclosed when the previous final parenting orders were made. An example of this might involve the non-disclosure by one parent of the other parent's abusive behaviour; family violence being a matter of importance when considering a child's best interests. Relevant non-disclosure is more likely to be made out in cases where parenting orders were made by consent because there is a greater possibility of the Court being put in a position of not being made aware of all relevant matters. Secondly, and far more commonplace in the reported case law, the applicant may put forward evidence of new circumstances that have arisen since the making of the original orders. In this regard, the change in question could be made up of component parts or could rely, instead, on one single but major change. However, it seems that a cumulative basis for change “cannot be made simply by weight of numbers of the changes alleged to have occurred”. See King & Finneran (2001) FLC 93–079. In that case, the Court rejected the husband's argument that if the individual changes he alleged were not sufficient in isolation, collectively, they sufficed.
i)The type of change required has been variously described and has include formulations including: “substantial change” Newling & Mole [1987] FamCA 21; “startling new circumstances” McEnearney & McEnearney (1980) FLC 90–866; “sufficiently weighty new facts and circumstances” Freeman & Freeman [1986] FamCA 23; and “material changes in circumstances” Houston & Sedorkin (1979) FLC 90–699. Despite the differing terminology (noting that none elucidated on its face the type and extent of change required), the various formulations were all directed, in substance, to the applicant establishing a change of circumstances that warranted a consideration of whether the existing orders should be altered.
j)In Freeman & Freeman [1986] FamCA 23, the Full Court of the Family Court of Australia (Fogarty, Bell and Strauss JJ) referred to the need for new facts which throw sufficient doubt on the desirability of continuing the custodial arrangements.
k)In King & Finneran (2001) FLC 93-079, Collier J explained the rule in these terms:
The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
l)For the father to successfully reopen the case by way of a fresh application, he would need to demonstrate a significant and/or fundamental change in circumstances since the final orders were made. The starting point in such an exercise is what were the circumstances found to exist by the Court for the purpose of the final orders made by Loughnan J. In that regard,
(i)At the time of the final orders, there was a tenuous and problematic relationship between the child and the father and he was unable to prioritise the child’s needs above his own;
(ii)Currently, the father has filed a significant quantity of material that says much about his needs;
(iii)There is little to nothing in the material filed by the father that demonstrated any insight as to how such a significant change, namely his reintroduction into the child’s life, would be managed and how it could benefit the child as the emphasis in the father’s material was on the benefits to him of now having a relationship with the child; and
(iv)Given the above, the Court would have significant concern about the tone and focus of the father’s material. Parenthood is not something than one can opt into and out of depending on the circumstances of the parent from time to time. The father’s continuation of his view as himself as the centre of the case highlights in him a total lack of understanding of the child and her best interests.
m)As the onus of demonstrating a change in circumstances falls on the father, as the applicant, he will need to identify those circumstances which have occurred post the final orders that are not only significant but fundamental to the child’s care.
n)The need to determine the merits of the case before addressing the threshold question seems most likely to arise in cases where the alleged change is based on disputed actions and attitudes of the parties and/or the children, rather than on some easily provable objective factor such as a proposed relocation or alienation. Conversely, an application for variation is most likely to be summarily dismissed for failing to satisfy the rule in Rice & Asplund where the applicant's case is clearly without merit. For example, in C v F [2005] FamCA 110 the father raised the fact that he had cared for the child on additional nights (approximating 2 weeks in total) outside the scope of the contact orders in seeking to re-open the issue of residence. Justice Finn dismissed his application, noting that the evidence fell “far short of a sufficient change in circumstance” and that embarking on a hearing would be “pointless”. In cases such as this, the same factors that make the case unmeritorious result in a failure to satisfy the rule. In short, on the current facts in this case there is no convincing reason presented to justify disturbing the existing status quo because there has been no material change in circumstances since the final orders were made.
o)However, the most striking example of the potential influence of merits on the application of the threshold test concerns the situation where the applicant's case for variation is successful in the absence of any change of circumstances. In Bennett & Bennet [1990] FamCA 148, the Full Court of the Family Court of Australia (Nicholson CJ, Simpson and Finn JJ) noted:
[I]f … the trial Judge comes to the conclusion … that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion upon the basis that no change in circumstances had been shown.
p)While logic dictates that this is by far the correct approach in that it requires an examination of the whole of the evidence, both past and present, it is problematical that it appears to result in the Rice & Asplund rule being bypassed. This, in turn, generates internal inconsistency in the application of the rule along these lines: a change of circumstances is required before the Court can vary existing parenting arrangements in the best interests of the child, but if the best interests of the child mandate a variation, it can be made without the need for changed circumstances. Notably, there are no reported cases, other than Bennett & Bennett, where the Court has varied orders in the absence of a proven change. Moreover, the Full Court, in that case, doubted whether it would have arrived at the same decision as the trial judge (Maxwell J) on the facts before her at the first instance hearing. It seems that where the merits of a case mandate a variation, it will always be possible for the Court to find a change of circumstances, even if merely by the passage of time. In this way, the problem of internal inconsistency is, and apparently has been, generally avoided. The problem, however, continues to exist and serves to highlight an apparent conflict between the rule and the paramountcy principle in applications for variation.
q)Finally, on whether the rule in Rice & Asplund would prove an insurmountable hurdle for the father at this stage, in SPS & PLS [2008] FamCAFC 16, Warnick J enunciated the dilemma 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.”
r)Finally, given the evidence of the father, it is unlikely that he would succeed in a rehearing because the subsequent events identified by him differ little from his past behaviour, thereby not satisfying the requirement for substantial or fundamental change in circumstances following the making of the final orders.
Mr Gardiner confirmed that the matters of law, as set out in paragraph 15 above, were accurate but submitted that the father had satisfied a sufficient change in circumstances to ground a re-opening of the final orders.
The parties agreed that the matter should proceed on the documents only. Accordingly, the Court’s determination is based only on a study of those documents, the affidavits read, documents tendered and the submissions of the parties’ legal representatives. There is no provision for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.
Background facts
The following are the, substantially, agreed background facts:
a)In 1975, the father was born and he is, currently, 45 years of age.
b)In 1978, the mother was born and she is, currently, 42 years of age.
c)In 1998, Mr N (“Mr N”) was born of the mother’s relationship with her previous partner, Mr E. Mr N is, currently, 22 years of age and lives with the mother.
d)Between 2008 and 2009, the parties commenced a casual relationship following the death of the wife’s then partner, Mr O (“Mr O”). The mother said that she was still getting over his sudden death. The mother said that she and the father had, however, known each other, previously, when they were teenagers. The mother said that, after the death of Mr O, she had moved back to her mother’s home in Suburb P, NSW, with Mr N, who was then 9 years of age.
e)In 2008, the mother said that she had then found out that she was pregnant with the child but, at the time, she was unsure who the child’s father was as she had not been seeing the father, exclusively, at or around that time.
f)In 2009, the child was born and she is, currently, 11 years of age.
g)In 2009, the father first met the child.
h)Between mid 2009 and late 2009, the father would usually spend a 2 hour visit with the child each week under the supervision of the mother.
i)On 24 December 2009, the mother said that she visited the father at his parents’ home and observed him to be intoxicated and abusive towards her and that the father had informed her that he no longer wished to see the child.
j)On 14 February 2010, the mother said that the father had arrived unexpectedly at her home at about 10.30pm and the Police were called and the father was removed.
k)On 15 February 2010, the Police applied for an Apprehended Domestic Violence Order (“ADVO”) on the mother’s behalf against the father.
l)On 23 February 2010, an interim ADVO was made against the father in the Local Court of New South Wales at Suburb Q.
m)On 6 May 2010, the father commenced parenting proceedings in relation to the child in the Family Court of Australia. Interim orders were made for the father to have supervised time with the child. However, his first contact occasion was suspended due to his behaviour.
n)On 8 May 2010, a paternity test confirmed that the father was the father of the child.
o)On 12 May 2010, the ADVO referred to in paragraph (l) above was further listed in the Local Court of New South Wales at Suburb Q and was then stood over part heard to the Downing Centre, Sydney.
p)On 19 May 2010, the ADVO referred to in (o) above was made final in the Local Court of NSW at the Downing Centre. The father appealed this decision to the District Court of NSW.
q)On 8 September 2010, the father’s appeal in the District Court of NSW was dismissed and the ADVO made on 19 May 2010 was confirmed.
r)On 26 May 2010, the mother filed her Response to the parenting proceedings commenced in the Family Court of Australia.
s)On 4 June 2010, the father signed a statutory declaration acknowledging that he was the father of the child as was required by the Child Support Agency.
t)On 21 July 2010, interim orders provided for the father to spend supervised time with the child at the Sydney Children’s Contact Centre (“SCCC”).
u)On 23 October 2010, the father had his first visit with the child at the SCCC for one (1) hour.
v)On 6 November 2010, the father was 15 minutes late to his visit with the child at the SCCC which reduced his visit to 45 minutes.
w)Between 4 December 2010 and 12 February 2011, the father had 5 visits with the child at the SCCC.
x)On 21 February 2011, the father provided an undertaking that he would not attend R Family Centre whilst the mother was in attendance there.
y)Between 26 February 2011 and 26 March 2011, the father spent time with the child at the SCCC.
z)On 4 April 2011, the father’s time with the child was suspended due to asserted behavioural issues. The mother said that she was notified by staff members at the contact centre that the father’s scheduled times had been suspended by them due to the father’s behaviour. The letter from S Family Services dated 6 April 2011 (at page 60 of the mother’s affidavit, being Exhibit “-1”) stated that the father had continued to challenge the decisions made by the service and that his behaviour at the centre had been inappropriate and disrespectful towards staff on several occasions and that he was in breach of the service agreement signed prior to using the service. Further, the letter confirmed that the service had had many lengthy conversations with the father over the past few months informing him that due to the above issues, the case management for his matter had exceeded the capacity for the service and that he had been given adequate warnings regarding this.
aa)On 21 April 2011, the mother attended the Police at Suburb T and made a statement seeking an extension of the ADVO which was then listed in the Local Court of New South Wales at Suburb Q on 17 May 2011. The matter was adjourned and on 31 May 2011, the father consented to the extension of the ADVO and the matter was then further adjourned until 16 January 2012.
bb)On 16 January 2012, the mother was unable to attend the Local Court of New South Wales at Suburb Q due to ill health and sought an adjournment. The matter was, however, dealt with and dismissed in her absence.
cc)On 9 March 2012, the mother attended another contact centre, being the U Contact Centre (“U Contact Centre”) for an intake session and on 27 March 2012, contact between the father and the child commenced at that centre.
dd)On 27 March 2012, the father commenced spending time with the child at U Contact Centre for one (1) hour per fortnight.
ee)On 6 May 2012, the family report was produced as referred to in paragraph 23, below.
ff)On 30 May 2012, following the release of the family report, in the Family Court of Australia, Justice Johnston made orders for the supervised contact with U Contact Centre to be reduced from fortnightly to monthly.
gg)On 24 June 2012, 5 August 2012, 19 August 2012, 16 September 2012 and 14 October 2012 the father had contact with the child at U Contact Centre.
hh)Following 14 October 2012, the father did not spent any time with the child.
ii)In 2014, the father opened a business in Country V.
jj)In early 2014, the mother formed a relationship with Mr L.
kk)On 2 July 2014, the final orders were made. The parties have attended mediation on 3 occasions following the making of the final orders.
ll)In August 2014, the mother commenced cohabitation with Mr L at W Street, Suburb Q, NSW.
mm)In January 2015, the child commenced primary school at Suburb Q School. The child was, in 2020, in year 5 and doing well at school.
nn)Mr L is, currently, 42 years of age and is a self-employed tradesman by way of occupation.
oo)In 2015, Y (“Y”) was born of the mother’s relationship with Mr L. Y is, currently, 5 years of age.
pp)Mr L has 2 sons from a previous relationship, being Mr L (“Mr L”) born in 1994, currently, 26 years of age and Mr Z (“Mr Z”) born in 1996, currently, 24 years of age.
qq)In 2017, the mother married Mr L.
rr)The mother lives with the child, Y and Mr L and the mother says that she and Mr L have a stable home life.
ss)The father has not paid any child support for the child.
Principles to be applied and procedure to be followed
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for the parents to have such equal shared parental responsibility (s.61DA(4)).
The Court will not apply the presumption in this case as the final orders provided for the mother to have sole parental responsibility for the child and the Court is dealing with this matter, at this time, in terms of a threshold issue considering the rule in Rice v Asplund.
Expert Evidence
The family report appears at pages 13 to 35 of Exhibit “LJ1” to the mother’s affidavit. The Court incorporates the contents of that report, as if fully set out herein.
The family report raised specific concerns about the father’s relationship with his family and, particularly, his relationship with his own father.
The family report also opined that the father had involved himself in experimentation with drugs and alcohol and seemed to have had a very erratic and impulsive personality style.
The family report was of the view that the father should have recognition-style contact only and no direct contact with the child.
Relevantly, at recommendation 8, the family report states:
If [the father] is able to demonstrate over the next 3 years that [he] had undergone substantial rehabilitation and change as demonstrated by stability in his life, and that he doesn’t use any drugs or alcohol to excess or have ongoing interpersonal conflict, perhaps then some more contact may be a possibility.
The family report, at recommendation 10, noted that the interviews conducted by Dr B were in March 2011 and so his own report would probably need to be updated if there had been any substantial change in terms of the father’s rehabilitation and demonstration of stability and evidence of him not using drugs or alcohol to excess, or having any ongoing interpersonal conflict issues.
Ms Kennedy submitted that there was no evidence to establish that the father had demonstrated substantial rehabilitation and change within the time period (being the next 3 years; that is by 6 May 2015) as referred to by Dr B. The Court accepts that submission and gives it substantial weight.
Father’s evidence and submission
The father says, in paragraph 15 of his affidavit, that his circumstances have significantly changed since 2014, that he has attempted on numerous occasions to resolve matters with the mother amicably to no avail, and that, accordingly, he has had no option but to litigate the matter.
The father said that he had, nevertheless, attempted to send the child gifts and cards through a mutual friend, Mr G. However, the mother had refused to pass those gifts and cards on to the child. He then said he arranged for Mr L to facilitate the order and that there were 2 specific occasions where he and Mr L had arranged to meet to facilitate the exchange of gifts.
No contravention proceedings have been brought by the father in respect of any alleged failure by the mother to comply with the final orders and, indeed, on the face of the father’s own evidence, he himself did not provide the items in accordance with the specific terms of orders 7 and 8, as set out in paragraph 3 above (that is, by post) for the mother to then pass them on to the child.
Relevantly, in paragraph 23 of the father’s affidavit, he concedes that the way he conducted himself throughout the proceedings was often not entirely helpful. He stated that he was extremely emotional at various times during the process of litigation, which did not assist him in making appropriate decisions. The Court does not doubt that he wants to spend time with the child. However, the issue as to his desire must be examined against the best interests of the child and there is a critical need to focus on those best interests.
The father, under the heading “paternity issues”, sets out a number of matters at paragraphs 24 through to 34 of his affidavit. At paragraph 24, the father says that, in 2015, he received a message via Facebook Messenger from an individual named Mr AA (“Mr AA”), whom he had never previously heard of. That message was to the following effect:
Hi Mr Brown. I’m Mr AA, Ms Hayden’s ex. She told me I was X’s father for six years and I have just discovered you are or you might be the father...I have exactly the same photos of her since day 1...This story cost me my marriage. I’m about to divorce. Can we talk? I just need to understand how Ms Hayden could do this to us? Best regards, Mr AA. PS. I’m going to court with Ms Hayden.
The father said that he had become aware that Mr AA had been in a relationship with the mother for a period of time but had never heard of his name in the context of the child’s paternity. The father said that after Mr AA had reached out to him he had had a lengthy conversation with him and that Mr AA had advised him that from the day the child was born the mother had always purported that Mr AA was the father, and that he had paid $600.00 to $700.00 per week in child support, totalling in excess of some $50,000.00.
The father refers to his conversations with Mr AA as being part of a Facebook group chat established with himself but also including the mother’s former partner, Mr E.
The father asserted that the mother had misrepresented to Mr AA that he was, in fact, the father of the child and that she had doctored a paternity test by changing a date so that it appeared that the test result was produced in 2014 rather than 2010, so as to evidence that the mother was unaware that the father was indeed the father of the child until 2014, when he said she would have been aware of that fact in 2010 (see paragraph 18(n) above).
While the father’s affidavit referred to a letter from M Law Firm, being the solicitors for Mr AA, that letter, which appears to be dated 8 July 2015 (part of Exhibit “A”), was not attached to his affidavit. It was, subsequently, tendered, noting that a draft of that letter had been, in fact, attached to an earlier form of the father’s affidavit affirmed in April 2020 (also part of Exhibit “A”).
Whilst Ms Kennedy objected to the admission of this letter, the Court was of the view that it should be received (giving short reasons on the day) with such weight to be afforded to it as the Court determines. The Court is of the view that little weight can be given to the contents of the letter, or the asserted behaviour of the mother in relation to the matters contained therein, as Mr AA had not provided any affidavit evidence, nor was his absence explained. In those circumstances, the Court is of the view that a Jones v Dunkel inference means that it is unlikely his evidence, if obtained, would assist the father.
The Court has also had regard to Exhibit “1”, being documents produced by M Law Firm which indicated (as, appropriately, conceded by Mr Gardiner) that the original or, indeed, copy of the said letter did not appear to have been produced as part of the file of M Law Firm in response to the subpoena issued.
It appears also that M Law Firm appears to have received instructions to act for the father in these proceedings. There is sufficient uncertainty in terms of the communications exhibited between the mother and M Law Firm that the Court places, as said, little weight on the documents contained in Exhibit “A”.
Certainly, so far as these proceedings are concerned, the Court accepts that each of the parties was aware, following the father undergoing DNA testing in 2010, that he was the father of the child. See paragraphs 18(n) and (s), above.
The father says, at paragraph 39 of his affidavit, that in 2020 he sent the child a letter for her birthday, and he attaches as Annexure “H” a copy of that letter. He said that towards the end of the year he also sent a gift to the child for Christmas. It is unclear from the father’s evidence how he arranged for that gift to be delivered, although he stated that he had made various attempts to confirm with the mother whether the gift had been received and passed on.
The father’s affidavit is, substantially, silent as to his life in Country V. He says, in paragraph 52, that he is a hard worker and has been fortunate enough to own and operate a business there. He says that he now resides in Australia but is able to manage the business remotely and that, as a result of COVID-19 issues, he has made the difficult decision to close the business and return to Australia where he has been working in the construction industry on a full-time basis since.
In paragraph 55, he states:
I live a very stable life, I do not use any illicit drugs, I eat healthily and no longer really drink alcohol.
The father deposed to being in a long-term relationship with his current partner, Ms H, having been together for some 4 years. Whilst engaged, they are not yet married as they have decided to delay the wedding indefinitely due to COVID-19 issues.
The father says that, in 2014, he was not in the right frame of mind to take on the parenting litigation, but believes he is now fully committed to seeing this through and doing what needs to be done. That would appear to be in continuing litigation if he was permitted to do so. The father says that he has 4 cousins on his side of the family that he would like to eventually introduce the child to.
The father says that he feels as though the child has been robbed of the chance to be part of her paternal family and that he has not been given the opportunity to be a father and that he is open to attending further mediation to deal with the matter amicably with the mother. The father, in his supporting affidavits, as Ms Kennedy says, does no more than provide evidence that he is a good person given from the perspective of those persons who have sworn or affirmed their affidavits who are friends and family members.
The Court accepts that if the father had not put on such affidavits, a submission would have been made that the father had no evidence, to that supporting effect, in any event. However, by doing so, the father says that his brother, Mr F, aged 44 years, has 2 sons, BB and CC, aged 9 and 5 years and that those children have taken to the father in a wonderful way and are close to their cousins, being the children of the father’s sister, Ms J and that the father is very determined, generous, kind and appropriate to those children and that he can only assume that he would be the same with the child.
Mr G is a friend of the father who states that he is 46 years of age, and that they have known each other since growing up in the Suburb P area, and that the father had contacted him in 2014 through WhatsApp to see if he could assist the father in getting a gift to the child, as he was friendly with the mother and could act as a neutral middleman to facilitate the gift giving. Relevantly, he states that he received a message back from the mother stating that there were Court orders in place and that the father was aware of such and of the ways to send any gifts, cards or communications. Mr G states that the father is a person with a huge heart who goes out of his way to help everyone and anyone irrespective of their circumstance and that he is aware of the charitable work the father undertakes in Country V.
Ms H is engaged to the father, having commenced their relationship in around 2016. She describes the father as funny, kind, and exceptionally passionate, having built a successful business in Country V and now working in the building industry in Sydney. She talks of the father having established a men’s support group called “DD Group” that aims to help and support men through sport who are struggling with mental health and/or need support. She confirms that the father is and has always been willing to do anything to have a connection with the child. She says that, in the 4 years that they have been together, she has never known the father to be aggressive in any way, but stated, like any couple, they have had disagreements, but that he has never been argumentative or aggressive and is, otherwise, calm and pragmatic. She confirmed that neither she nor the father drink, smoke, or use any drugs.
Ms J, the father’s younger sister, is 39 years of age. She refers to the father’s niece and nephew, EE and FF, being 7 years old, as having a strong relationship with him and that he takes them out to the movies and the beach. She also confirmed that the father and his partner have a stable and sedentary life, eat well, and do not drink or smoke. She also confirmed that since her brother, Mr F, has moved back from Country GG, their children have quickly become close friends and that she hopes that the child would have a similar opportunity to fit into the paternal family and enjoy forging a bond with all of them.
Mr K is the father’s father, the child’s paternal grandfather, and is 67 years of age. He confirms that his communications with the mother had ceased at around about the time of the Family Court proceedings, although he says in July 2015 he reached out to her to see if he could perhaps spend some time with the child and bridge the gap. While, he said, the call was pleasant, he stated that the mother was firm that he should not be reintroduced to the child as the child has, she said, “another family now” and that she [the child] refers to other people as her grandparents so it would be confusing for her. Mr K stated that he respected the mother’s wishes and has not spoken with her since that date. In paragraph 10, he refers to a falling out with the father, but says that since then they have mended those issues and he is proud of the person the father has become. He says that they talk to each other at least once a week and he is looking forward to the father and his partner, Ms H, coming to stay with him over the Christmas period.
The affidavit of Mr E states that he was the former partner of the mother, aged 44 years, and that they have one child together, namely, Mr N. He says that, in June 2015, the father contacted him to inform him that he had been approached by Mr AA, who had said that the mother had lead him to believe that he was the child’s father. Mr E said that he, the father, and Mr AA, subsequently, started a group chat on Facebook where they spoke about their experiences with the mother. He stated that Mr AA appeared to be, particularly, aggrieved about the mother’s conduct towards him and that the father had screenshots of this conversation. In talking to the father, he stated that the father had informed him of various things that the mother has either said about him to the expert report writer or in an affidavit, specifically, that Mr E’s current wife did have a good relationship with her, which he stated was not true, that the mother was happy to come to his house with the child and that her daughter would play with the child, and that this was not true as his daughter had never played with the child and the mother would not come to his house with her, and that they had a working co-parenting relationship with Mr N, whereas, in fact, he said the mother was very difficult to deal with whilst Mr N was growing up and that they did not have a sound co-parenting relationship.
The father says that, having had regard to his evidence, which should be accepted at its highest, given the nature of the application before the Court, the Court would be led to find the following:
a)First, as to order 7 of the final orders, as set out in paragraph 3 above, that order had not been complied with by the mother. The mother disputed that assertion and said that the father’s own evidence did not indicate that he had, in fact, himself complied with the specifics of that order.
b)Secondly, the father’s evidence was that, at least by 2020, he was stable, within a committed relationship, had improved his other family relationships and was not affected by drugs or alcohol.
Ms Kennedy submitted that while the father asserted the matters set out in paragraph 55(b) above it was clear that he was seeking to demonstrate that position in 2020 rather than in the next 3 years following the production of the family report, as was referred to by Dr B and as noted in paragraph 29, above.
The Court accepts that there is substantial force in Ms Kennedy’s submission that the father now comes to the Court at least 5 years late, having not demonstrated any change in the 3 years after the final orders were made as was contemplated in the family report.
The Court further accepts, as Ms Kennedy submitted, that specific weight must be given to Dr B’s actual recommendations contained in paragraph 5 of the family report. Those recommendations were to the following effect:
I recommend that [the father] continue with his psychiatric care. However, medical reviews with a psychiatrist are not going to make a change to his personality. He would benefit from undertaking rehabilitation-type courses such as dialectical behavioural therapy, personal growth courses, or a farm-style drug rehabilitation stay, such as HH Centre, with anger management courses.
The therapy is aimed to improve his life skills, to try and gain further insight into his personality difficulties and the adverse impact that he has on others, and to learn to manage his fears of being let down and abandoned by significant others. I believe that [the mother] would need to believe that [the father] had demonstrated that he had changed substantially such that he was able to communicate and maintain boundaries so that they could have a working relationship.
In that there was no evidence that the father had, in fact, done what was recommended namely undertaking a rehabilitation type course and completing the courses within that context. In fact, as submitted by Ms Kennedy, the father’s evidence was that he had done exactly what Dr B, in one aspect, had recommended that he not do. That particular issue was taken up in the father’s evidence and in terms of his reliance on the report of Dr JJ (“Dr JJ”) dated 3 March 2020, which appeared as Annexure “L” to the father’s affidavit.
While Mr Gardiner submitted that Dr JJ had found “no evidence of any diagnosable psychiatric disorder that requires ongoing treatment”, it must be noted that Dr JJ confirmed that the father was, previously, a patient under his care in the period from February 2010 until April 2013, when Dr JJ had seen him on some 22 occasions during that period. That was at the time prior to the report interviews with Dr B and prior to the making of the final orders. Dr JJ confirmed that he had seen the father once more for a review on 16 February 2016 (that is, some 18 months after the making of the final orders) and that there was a further telephone consultation on 10 December 2019 (that is, some 53 months after the making of the final orders). This involvement with Dr JJ was not as recommended by Dr B.
Dr JJ confirmed that during the period of his treatment, the father was diagnosed with a mixed anxiety/mood disorder, not otherwise specified. He was experiencing significant depressive and anxiety symptoms in the context of a difficult personal situation, most particularly his inability to gain regular access to the child. He was prescribed an anti-depressant (mirtazapine) for about 6 months during this period but had not required medication since then. Dr JJ recorded that, at the subsequent reviews in 2016 and 2019 (being a telephone consultation), the father had reported no further clinically significant anxiety or mood symptoms.
The father denied that he had had any episodes of alcohol or substance abuse since he was about 24 years of age. In that regard, the Court notes that the father was born in 1974, so his report to Dr JJ would indicate that he did not have any of those issues as and from 1998/1999. While Dr JJ stated that, based on that information, he could find no evidence of any diagnosable psychiatric disorder that requires ongoing treatment, he was further of the view that he could see no reason why the father’s psychiatric history would preclude him having access to the child now. However, relevantly, Dr JJ noted, as Mr Gardiner conceded, he was unable to comment specifically on parenting matters as being outside his area of expertise and, indeed, had not seen the mother or the child, in that regard.
Ms Kennedy noted that Dr B’s report was based not only on the father’s report to him and the mother’s report but also on the Doctor’s investigation of the documents produced under subpoenas, referred to at point 10 of the family report, at page 3. These subpoenaed documents, relevantly, being produced by the New South Wales Police, Suburb Q Hospital, KK Hospital, Dr JJ and the women’s refuge, Suburb Q Resource Centre, and SCCC.
Dr B asked the father about his alcohol consumption. The father said that he was alcohol-free 6 out of 7 days. He did drink on one day. On average, he would have 3 beers over 4 hours on Sunday, and if he was with his girlfriend he would drink a lot more. The father reported using marijuana in his teenage years, that he did not use marijuana or speed any more and that he got sick of using it, that he did try cocaine on a few occasions in 2008 (noting that this would be after the father’s statement to Dr JJ that he had not used drugs since he was 24 years of age, being in about 1998/1999), and he confirmed with Dr B that he had on a number of times used drugs since he was 24, but the number of times would be “on two hands”. Nevertheless, this record is inconsistent with his statement made to Dr JJ; see paragraph 61 above.
Dr B’s investigation of the subpoenaed documents confirmed that the father had been disqualified from driving, that he had a blood alcohol mid-range offence, and it was the second time that he had been driving under the influence of alcohol. The father reported that he had experienced an emotional reaction which led him to drive when he should not have been driving, because he was disqualified from driving, and so he was then presented to the hospital under s.32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
The s.32 order was said to be as a result of the father having been the subject of an assault. He had seen a “P-plater” driving erratically and he had high-beamed him and that the “p-plater” had then stopped and bashed the father.
The father denied that he had any other legal problems apart from the driving under the influence charges and the AVO. Dr B reported that he seemed to be very self-protective in his explanation of these issues and about how others had mistreated him and had deceived him.
The father reported that there was another occasion when he was attacked by a man and was knocked unconscious. It was at a party that he had gone to at a friend’s house. The father reported that he had also breached an AVO and had had a good behaviour bond imposed. The father said that he had wanted to get a transcript of the AVO hearing, because he said that “[the mother] had told lies” about him.
Dr B, at page 18 of his report, stated that the father had had a number of problems where he repeatedly found himself in conflictual situations, that he had had recurrent excessive alcohol abuse which had led to him being disqualified as a driver, which impacted on his business, that he had been in conflict and had been assaulted and lost consciousness at a party, that he had been admitted to a psychiatric unit on 2 occasions, that he had an unwarranted, entitled response which was inappropriate when the Police came to his home to assist him because of an implied threat to harm himself, that he had had an overdose of temazepam, and that he had been a victim of road rage. He had had an AVO against him from the mother and also from a previous girlfriend in 2005 and on 14 February 2010 he needed to be removed from the mother’s home by the Police (see paragraph 18(j), above).
Dr B stated that the father’s personal boundaries were of concern and that, while he appeared to come from a reasonably stable background, he struggled in his relationship with family and, particularly, with his own father. He felt a great sense of injustice and poor treatment from others. He had involved himself in experimentation with drugs and alcohol and seemed to have had a very erratic and impulsive personality style. There were anti-social, narcissistic and borderline features, with poor emotional regulation, a great fear of abandonment and a great sense of entitlement. Further, that he had not had any stable relationships prior to meeting the mother, although he had functioned reasonably well in a working capacity.
Dr B was also of the belief that the father had significant personality disturbance issues which affected his interpersonal judgment and that those issues led him to repeatedly getting into conflictual situations and to make poor judgments.
While Dr B was of the view that the father was unlikely to intentionally harm the child unless he was directly under the influence of drugs and alcohol and that he was unlikely to intentionally put the child in harm’s way, Dr B held great concerns that he could undermine the mother by his constant obsessive harassment of her. In that regard, Dr B’s major concern was that the mother could become overburdened by stresses and as to how she could effectively place limits on the father and deal with him in a constructive way. Dr B noted that the father did not appear to have good insight into the impact that his behaviour had on others and that he felt rather incensed that others did not see his point of view.
While Dr B notes that the father sought psychiatric care, he also notes, relevantly, that the father has not undergone substantial rehabilitation to improve his emotional regulation. As Ms Kennedy submitted, there is no evidence before the Court, noting Dr JJ’s evidence, that the father has undergone the substantial rehabilitation suggested by Dr B, and, as Ms Kennedy submitted, attendance to that would have been an important issue to consider in terms of any significant change sought to be shown by the father. The Court accepts this submission and this lack of evidence weighs strongly against the father’s application. Further, a critical aspect of Dr B’s family report was the need to satisfy the mother as to the father’s change and to provide certainty for her in her parenting of the child.
The Court accepts, noting the uncertainty in the position concerning the father’s assertion about ceasing his use of illicit drugs or alcohol to excess that, as submitted by Ms Kennedy, it would have expected to have seen the father produce objective material; for example, clear urinalysis/ carbohydrate deficient transferrin (“CDT”) test results in terms of those matters. The father has not produced that type of evidence, nor has he complied with the recommendations set out by Dr B in terms of dealing with the psychiatric care issues identified by the Doctor and this weighs against his application.
The Court, further, accepts Ms Kennedy’s submission that the father’s engagement with Dr JJ was not going to make a change to his personality given Dr JJ’s very limited involvement with him after the making of the final orders contrary to what Dr B suggested would be an appropriate involvement. The father has not given any evidence of him undertaking the steps as set out in recommendation 5 by Dr B and certainly there is no evidence that these had been undertaken within the time period contemplated by the said Doctor.
Further, the father said that there was considerable evidence that the mother was not full and frank about her dealings with him, Mr AA, and possibly Dr B, in respect to the child’s paternity which, in and of itself, raised questions about the mother’s capacity and other factors not earlier raised for consideration.
Ms Kennedy submitted that the father’s evidence, in that regard, weighs significantly against his application because those matters were raised by him without any insight as to how they would affect the mother and her specific parenting of the child and that they would not, in terms of Dr B’s recommendation, assist the mother in a change in her beliefs that the father was able to communicate and maintain boundaries. The Court accepts that submission and gives it weight. The matters raised by the father were an attack on the mother which did not relevantly go to any basis for an undermining of the final orders in terms of any argument as to non-disclosure.
Ms Kennedy said that the matters referred to in paragraph 75 above had no other forensic purpose other than to cause difficulties between the mother and Mr E and their parenting of Mr N.
Ms Kennedy goes on to submit that the father’s affidavit material goes some way to indicate that the father continues to agitate matters of concern with respect to the mother which would only cause the mother to have further doubts and concerns about the father demonstrating any significant change in his psychiatric position so that she could communicate and maintain relevant boundaries with him for the purposes of having a working relationship for the child’s parenting. The Court accepts that submission and gives it weight.
The Court accepts, as conceded by the parties, that the child is well cared for by the mother and is, otherwise, meeting all of her developmental milestones.
Mother’s evidence
While the Court accepts that, at this stage the father’s evidence should be accepted at its highest, it notes the mother’s evidence as follows:
a)The mother said that, in October 2008, the father assaulted her. She said that they were in a motor vehicle which had been pulled over by the Police and that he had been charged with a mid‑range PCA offence. The mother said that she did not report the assault and that 2 days later the father threatened to commit suicide and was admitted to Suburb Q Hospital.
b)On 14 January 2009, the father’s mid‑range PCA offence was dealt with before the Local Court of New South Wales at Suburb Q and the father was fined and disqualified from driving for 12 months.
c)On 26 January 2009, the mother said that she and the father were at the LL Hotel when an incident had occurred whereby she sustained an injury to her right wrist. She reported this incident to the Police and made a statement and a provisional AVO was made against the father for the mother’s protection with the proceedings standing over to 17 February 2009 at the Local Court of New South Wales at Suburb Q. On that occasion, an interim AVO was made and the matter was then further stood over to 27 March 2009. The AVO was listed for hearing on 4 May 2009. The mother said that she was unable to attend the hearing due to an illness associated with her pregnancy and she advised the Court. The father attended and agreed to an order which was made against him for the mother’s protection for 6 months expiring in November 2009.
d)On 7 July 2009, the mother said that the father called and texted her and in mid-August 2009, she arranged for the father to meet the child for the first time at MM Cafe in Suburb T, as referred to in paragraph 18(g) above.
e)In about late January 2010, the mother went to the father’s unit with the child to visit with a mutual friend present.
f)On 15 February 2010, the Police applied for another ADVO on the mother’s behalf. This was made on 23 February 2010, as referred to in paragraph 18(l), above.
g)The mother said that, in mid‑2017, Mr L was contacted by the father and that Mr L had informed her as to what the father had said and that this had brought tension into their household as the father was putting pressure on Mr L.
h)The mother said that the father had sent the child the first gift and letter in accordance with the final orders in June 2019 and that the child had opened it. The mother said that she had spoken to the child about writing or communicating with the father and assured her that they would send that correspondence. However, at this time, the child had said words to the effect:
I don’t want to.
i)The mother said the child was born with kidney issues with a side effect that she had frequent bladder infections. She also had other medical conditions.
j)The mother changed the child’s surname to Hayden-L on 15 September 2016. The mother said the child has a strong relationship with Mr L and a close bond with Mr N and Mr Z.
The mother relied on the affidavit of Mr L which, largely, confirmed her evidence. Mr L referred to being contacted by the father in around May 2011. He said he took the father’s call and was surprised by his reference to “Mr AA”. He said that “Mr AA” never displayed any animosity or raised any issue regarding the child’s paternity with the mother to him. He said that the father continued to contact him and most of his conversations were about how the mother was a bad woman and mother. He said that the contact from the father did cause some conflict between himself and the mother and he said that the SMS messages from the father were constant and upsetting to him. Mr L said that he was thinking of ways to get the father to stop communicating with him by saying “things are bad at home” in the hope that he would stop. He said that he had not experienced such obsessive behaviours from any person before and found himself overwhelmed by the father’s behaviour.
Mr L said that, in 2009, while he was on a worksite in Suburb NN, he was approached by the father which he found “totally inappropriate” for him to find him on a worksite and start talking about parenting matters. Mr L confirmed that the child calls him “Dad” as the mother indicated that while he was not the biological father of the child, the child treats him as a father.
Best interests of the child
The best interests of the child remain the paramount consideration; s.60CA of the Act.
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) In relation to proceedings commenced after 7 June 2012, an additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note: The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which are:
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.
In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b). See s.60CC(2A) of the Act.
The following terms “abuse” (see s.4 of the Act) and “family violence” (see s.4AB(1) of the Act) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
The Court notes the examples set out in s.4AB(2) of the Act provide a non-exhaustive list. The explanatory memorandum (at 17) referrable to the introduction of the relevant provision provided that: “Behaviour that fits within the general characterisation set out in the definition will be captured. …The definition encompasses patterns of family violence and single violent events”.
The Court accepts that the child has a meaningful relationship with the mother but has not established any relationship with the father following the implementation of the final orders. The mother’s position is that the final orders promoted a recognition only relationship which the father did not actively pursue.
The Court accepts that the mother’s position is that any ongoing litigation between herself and the father is likely to expose the child to the risks of that litigation and its potential for an adverse impact on her parenting. Save for that, the primary consideration referred to in s.60CC(2)(b) of the Act is, largely, inapplicable on the facts of this case.
Additional considerations
The Court refers to the decision of Banks & Banks [2015] FamCAFC 36 and in light of that decision will focus on the s.60CC factors that are plainly relevant to the determination that the parties ask the Court to make on this interim decision.
In this matter, the Court will focus on the following s.60CC factors.
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:-
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”
The Court accepts that given the existence of the final orders and the mother’s position (noting her conversation with the child referred to in paragraph 80(h), above) there is no admissible evidence before the Court as to the child’s views and given the status of the proceedings those views were not sought nor expected.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
Given the existence of the final orders, the Court accepts that the mother has been the child’s primary care parent and the father has had little involvement in the child’s life since 2014 and has not spent any time with her since October 2012.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
While the Court accepts that the father wishes to agitate an ongoing involvement in the child’s life, his evidence fails to deal with extensive periods of delay in bringing any proceedings save to say that the way that he conducted himself was often not helpful and that he had been emotional at various times which did not assist him in making appropriate decisions.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The Court accepts that there is no evidence to support the father having maintained the child.
The Court accepts that the mother has been solely responsible for maintaining the child.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Court has to weigh carefully the father’s position in terms of the making of the final orders and the potential impact on the child of further litigation between the parties in light of the principles referred to above in Rice & Asplund.
The Court accepts that to introduce the child to the father now, contrary to the mother’s position, given the final orders would lead to a very substantial change in the child’s circumstances given that it would appear she has had no contact with the father for the majority of her life and now has a relationship with Mr L who she treats as a father like figure. This factors weighs against the father’s application.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
No specific matters were raised by the parties with respect to this factor.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
While the father’s evidence deposes to him no longer having the difficulties referred to by Dr B, as the changed circumstances, his evidence did not go further in terms of the potential impact on the mother’s parenting capacity noting that she continues to assert that the final orders are in the child’s best interests as the continuing uncertainty surrounding the father’s asserted rehabilitation has not been accepted by her and there has not been objective evidence to assist the mother in accepting the father’s evidence. Further, the father’s failure to engage with the specific recommendations of Dr B particularly within the time period promoted by the said Doctor weigh against the father and support in terms of the mother’s assertion her concerns as to the father’s rehabilitation. The father’s attack on the mother’s capacity gives rise to concerns as to his ability to separate his own needs from those of the child and to prioritise those of the child. These were the same factors noted by Dr B and as Ms Kennedy submitted and the Court accepts still impact on the father without, it would appear, change.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The Court accepts that given that the father has not had any relationship with the child since prior to the final orders when the child was 5 years of age and now that the child is 11 years of age that a reintroduction of the father contrary to the mother’s position has the potential to expose the child to ongoing risks which the child is not, currently, exposed to. This strongly weighs against the father’s application.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to the child.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother’s position is that she has complied with final orders. Any asserted non-compliance being based on the father’s own non-compliance with the orders. The mother says that she is protective of the child and that the final orders enable her to exercise her responsibilities as a parent and that the child is, otherwise, doing well.
The father’s position is that a reintroduction of him to the child would be in the best interests of the child. The Court, however, accepts that at this stage the child would have little or no current recollection of the father given the existence of the final orders. To change that position contrary to the mother’s position has the potential to, negatively, impact on her care regime for the child. The father’s failure to address, in an objective manner, the mother’s concerns, as submitted by Ms Kennedy weighs against his application. The Court accepts that submission.
(j) any family violence involving the child or a member of the child's family;
The Court accepts that this factor was a relevant factor underpinning the family report and Dr B’s recommendations and indeed the making of the final orders. The father has had no contact with the child since 2012 and, accordingly, there is little or no evidence of any ongoing family violence as between the father, the mother and the child.
(k) If a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The Court refers to paragraph 18(bb) above and notes that there is no longer in force a family violence order.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court accepts that if the father’s initiating application is dismissed reliant upon the rule in Rice & Asplund then that order is the least likely to lead to further proceedings in relation to the child. This is clearly the crux of the application of the rule in Rice & Asplund and weight is given to it here.
(m) any other fact or circumstance that the court thinks is relevant
The Court accepts that the negativity of the mother to the father’s application and the fact that the parties have sought to mediate the matter weigh against the father’s application given the mother’s assertion that her parenting capacity may be, adversely, impacted upon by a further agitation of parenting orders in the specific circumstances of this matter noting the time since the making of the final orders (6 years), the time since the father spent time with the child in October 2012 (8 years), the lack of any objective evidence to satisfy the mother as to the matters of rehabilitation for the father and the father’s failure to engage specifically with the recommendations of Dr B in a timely manner and indeed, in his acting contrary to the recommendation of Dr B in the approach taken in his engagement with Dr JJ.
Conclusion
Finally, the Court must have regard to all the matters set out in s.60CC of the Act, to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
The Court is satisfied on balance, having considered and weighed the primary and additional considerations referred to above, that there is no evidence to support a position that the final orders are no longer in the best interests of the child and further that there is not a sufficient change in the father’s circumstances which would necessitate a review of the final orders.
Accordingly, the father’s initiating application should be dismissed.
Costs
While the mother sought indemnity costs, the Court does not have sufficient material before it to determine the issue of costs. In that regard, s.117 of the Act states that unless there are justifying circumstances the usual order is for each party to pay his or her costs. The Court will direct that if the mother seeks costs then an appropriate application should be made. The Court will make the direction, set out at the commencement of these reasons, in terms of any such application.
Otherwise, the matter will be removed from the active pending cases list.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 2 February 2021
- AGLC
- BROWN & HAYDEN [2021] FCCA 134
- Case
- [2021] FCCA 134
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether there had been a significant change in circumstances since the making of the final parenting orders, such that it would be in the children's best interests to reconsider those orders. The court was required to apply the principles established in *Rice & Asplund* concerning the threshold for varying final parenting orders.
Judge Kemp dismissed the father's application, finding that the evidence presented did not demonstrate a significant change in circumstances warranting a departure from the final orders. The court's reasoning focused on the high threshold required to reopen final parenting orders, emphasising that mere dissatisfaction or a desire for different arrangements is insufficient. The best interests of the children remained the paramount consideration, and the court concluded that reopening the matter would not serve those interests.
The father's application was dismissed. The question of the mother's costs was stood over, with directions for the mother to file a written application within 28 days if she sought costs, failing which there would be no order as to costs. The matter was then removed from the active pending cases list.
Orders
Orders of the court
1.
The father’s Initiating Application filed on 21 April 2020 be dismissed.
2.
The question of the mother’s costs be stood over for further determination in accordance with the following directions.
3.
If the mother seeks costs, an appropriate written application quantifying the same may be made within 28 days of today’s date, (supported by any documentary material, including a verified financial statement) to be filed and served within that time period and a copy forwarded to Chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.
4.
Save as to the above, the matter is removed from the active pending cases list.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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