Bunson and Abbey

[2016] FamCA 268

FAMILY COURT OF AUSTRALIA

BUNSON & ABBEY [2016] FamCA 268

FAMILY LAW – CHILDREN – Discrete issue – Where whether there has been sufficient change of circumstances since final parenting orders were made in November 2015 to justify reconsidering parenting orders – Where none of the matters raised by the mother represent a change of circumstance – Mother’s application dismissed  

Family Law Act 1975 (Cth), ss 68B,

Bunson & Abbey [2015] FamCA 963

APPLICANT: Ms Bunson

RESPONDENT: Mr Abbey

FILE NUMBER: NCC 3062 of 2013

DATE DELIVERED: 12 April 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 8 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Harpers Legal

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Foat Roberts Lawyers

Orders

1. The Application of the mother filed 1 March 2016 is dismissed.

2. The mother is to file any material in response to the father’s Application for Costs on or before close of business on Tuesday 10 May 2016.

3. The father is to file any material in reply by Tuesday 24 May 2016.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3062 of 2013

Ms Bunson

Applicant

And

Mr Abbey

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application for determination of a discrete issue, namely, whether there has been sufficient change of circumstances since final parenting orders were made to justify reconsidering parenting orders.  

2. The common position of the parties was to deal with this aspect about change of circumstances as a discrete one initially.

Short History of Relevant Events

1. Final Orders were made for the four children of the parties, aged 12, 11, almost 10 and six, on 6 November 2015.  That is, about five months ago.

2. There was no appeal.

3. The Orders provided for a change of residence for the children from the mother, with whom they had always previously lived, to the father. 

4. Each of the children has developmental difficulties: problems with speech and with attention, which is a problem for learning. One child is on the autism spectrum.

5. The change was identified by me as a “big change and potentially a disruptive one for the children, but [with] a lot at stake”.[1] What was at stake was preserving the relationship between the children and the father, ensuring the attendance of the children at school, and addressing the consequences of the mother’s attitude to parenting: [2]

   … She has been indulging them by allowing them to dictate what they will do in terms of seeing the father, particularly [C] and [D]. The mother has been indulging [B] by, to use her words, “bending the rules” to get her into the high school which she is said to want to attend.

   [1]Bunson & Abbey [2015] FamCA 963, par 256

   [2]Bunson & Abbey [2015] FamCA 963, par 216

6. The Orders provided for four weeks of no time and communication between the children and the mother initially. There was a specific restraint, pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), on the mother making contact with the children during that period.[3] Thereafter there was weekly contact, six hours on a Sunday, throughout the 2015/2016 Christmas school holiday period. Commencing in the first school term, alternate weekends began.

Current Applications

[3] Order 7(b) made 6 November 2015

The Mother

1. On 26 February 2016, the mother signed her Initiating Application, proposing a change of residence back to her on a final basis. On an interim basis, she proposed that the four children live with her until the father secured suitable long-term accommodation and providing evidence of this to the mother, after which the three youngest children would return to live with the father; the oldest, B, to remain with her. A pattern of alternate weekends was proposed for all children with the non-resident parent, that is, the father, as proposed by the mother.

2. I infer that the mother must have initially instructed solicitors some weeks prior to the filing of her application. This suggests that acceptance of the Orders, implied by there being no appeal, was not in fact the case.

The Father

1. The evidence of the father is that on the second or third visit by the children with the mother, so in December 2015, two of the children said to him, “Mum and [the mother’s partner] are taking you back to court, Dad. They’re going to get full custody”.[4]

   [4] Affidavit of the father filed 23/06/2016, par 21

2. This is an untested piece of evidence, but consistent with the mother instructing lawyers very soon after judgment was delivered.  It is also consistent with the mother deciding not to support the children in any arrangements.

3. The Response of the father to the application is that there have been some changes, which were largely predictable, but in any event, not sufficient to justify the stress and upheaval for the children of further litigation, with the potential for a further change of home and school. 

4. The father does not himself ask for any variation of court orders, simply dismissal of the mother’s application.

The Issues

1. The specific matters raised by the mother are as follows:

   a)A report by B of sexual misconduct by one of her step-brothers, L, the child of the father’s partner;

   b)The fact of B running away from the father’s home in late December 2015;

   c)The father failing to comply with court orders; and

   d)The father and children being homeless.

2. I will deal with each of those matters separately. 

Sexual misconduct

1. In relation to the mother’s allegations of sexual abuse, the mother asserts that on 13 December 2015 B said to her, “[L] has been trying to kiss me”.[5]   B is reported to have also said that she had told the father and his partner straightaway and was doubtful about being believed. 

   [5] Affidavit of the mother filed 31/03/2016, pars 8 and 9

2. I note that in the affidavit of the father’s partner she says this:[6]

   In early February 2016 I got up early in the morning at about 6am. I went to check on the children … I saw [L] in [B’s] bed.

   … [L] told me that he got into [B’s] bed. He said he just had a feeling and did it. 

   [6] Affidavit of the father’s partner filed 23/06/2016, pars 11-12

3. The father’s partner thereafter questioned the children about what had happened. She asked B why this had happened:[7]

   [B]:Mum told to do anything we could to break you and dad up   because dad won’t be able to handle us by himself and he’ll send us back to mum.

   Father’s Partner:       Who’s us?

   B:Me, [C] and [E].

   [7] Affidavit of the father’s partner filed 23/06/2016, par 13

4. This is an untested piece of evidence, but is of the utmost concern.  The mother denies having said any such thing to the children in her affidavit.  It is a serious matter. 

5. In her own material, the mother says that she made contact with the father and said, “It has come to my attention that [L] and [B] have been kissing … Please do something about this!”[8] She also attempted to speak to the father about it at changeover. Not surprisingly, given that the children were present, he cut her off. 

   [8] Affidavit of the mother filed 31/03/2016, Annexure A

6. The mother says she reported the matter to the Department of Family and Community Services.  I have no reason to doubt that she did, although there is no corroborative evidence of that. 

7. She sent messages to the father late in December 2015 about the matter and appeared in her material to be aggrieved by the father’s failure to respond rather than being extremely worried.

8. In the ordinary way, an allegation of some sexual misconduct between children in this way would give rise to concern of a new event.  This is not the case in this matter. There is evidence reaching back over five years of B being exposed to sexual abuse, where the father of a school friend of B’s is said to have molested her.[9]  

   [9]Bunson & Abbey [2015] FamCA 963, par 6

9. In my reasons for judgment delivered on 6 November 2015 I refer to a failure to address the impact on B of this event, which was ongoing. In particular:[10]

   The [Federal Circuit] Court noted at the time of transfer [to the Family Court] that:

   (a)The child [B] had been sexually assaulted at age seven by an adult male. In January 2014 [B] had been discovered with two of the male children of the father’s partner in circumstances where, after some investigation by the Department, it became apparent that [B] was encouraging her younger step-siblings to engage in sexual behaviour with her.

   (b)It is the mother’s position that [B] will engage in sexual behaviour with her step siblings if [B] is to spend time with the father.  It is the mother’s Application that [B’s] time with the father be reduced and/or cease.

   [10]Bunson & Abbey [2015] FamCA 963, pars 15, 25(a) and 25(b)

10. In January 2014, when B was displaying some sexualised behaviour with the children of the father’s partner, the Joint Investigation Response Teams recommended to the mother that she have sexual abuse counselling for B.  The mother took the child on two occasions and thereafter ceased.[11] The mother was given a referral for the child to attend a sexual assault unit for counselling.  B attended for two visits only. 

    [11]Bunson & Abbey [2015] FamCA 963, par 16

11. I am not satisfied that the mother was committed to seeking this support for the child at that time.  This response was particularly un-child-focused, given the possibility of abuse of the child by an adult two and-a-half years prior. 

12. The mother herself sent B to school with a laptop for schoolwork, which happened to contain images of herself in sexual contact with partners.  B reported to her school that she had been present and seen the mother in bed with sexual partners:[12]

    The mother conceded that she had sent the oldest child to school with a laptop for the purpose of having educational material downloaded to be brought home and used for educational purposes and that the laptop had contained images relating to her own sexual relationships. The mother denied that she had found that situation amusing, as set out by
    

    [12]Bunson & Abbey [2015] FamCA 963, par 90

    Ms I, but it is apparent that she did not consider it of any particular significance.

13. Given that history, unfortunately it cannot be surprising or unpredictable that B might again engage in some kind of sexual contact with a step-sibling or with other children. B is now having counselling arranged through Brighter Futures, according to the evidence of the father and his partner, which seems appropriate.

B running away

1. The mother says that she had rung repeatedly to speak to B at the end of December 2015, but the child was frightened and that there was no one home.  The mother recommended on two or three occasions to the child that if she was frightened she should ring the police.  B did not ring the police.  She then apparently ran from the father’s home and was picked up by a passing ambulance.  This is not the first time that B has run away.

2. Unfortunately, the children have been subjected in the past to drama over relatively minor incidents.  On 3 July 2015, after a tumultuous scene involving all the children and the aftermath flowing over into the father’s home, B and two of her brothers ran away. It is predictable that there would be a reaction like this from B under pressure, as she apparently was at that time. 

3. The evidence of the father is that she had settled down well in the four weeks of no contact, but had begun to react adversely after contact began. It could hardly be a surprise to the mother that that would be so.

4. B had expressed a great warmth and affection for both her parents, equally happy in both their homes. It must have been a surprise for her to have a change of residence. It was incumbent on the mother to support B and that does not appear to have occurred.

Father failing to comply with court orders

1. I accept the submission on behalf of the father that this application was not a contravention hearing and it may be that in terms of reporting, although I am not clear about it, that the father has not asked the mother in writing to submit her view about particular matters, especially a change of high school for B.

2. However, the evidence suggests that there has been voluminous correspondence from the mother demanding information with apparent disregard for the father’s current status as having sole parental responsibility for all long-term issues for the children.

3. It has only been five months since the orders were made and the last two or three months have again become very difficult for the children.  Some failure to comply with orders of that kind is certainly not a proper basis for re-inquiring into the whole of the parenting arrangements.

The father and children being homeless

1. Finally, there is the assertion by the mother that the father and children are homeless.  It is apparent from the evidence that the father and his partner are living apart, although still in a relationship.  The father’s partner has three children from a previous relationship, plus a baby, the product of the relationship between herself and the father.  That child, now about one, is living with her. 

2. It was contemplated in evidence that the parties may have to live separately for a time, anticipating, as both the father and his partner did, that there would be difficulties for the children in making the change and that they may have to live separately to accommodate that. As it is, they have taken a decision that the two children, B and L, should not presently live together.

3. They have engaged with Brighter Futures, as the Orders recommended, although did not require, and have reacted responsibly to the situation with B and L. 

4. The father is now living with his father, with whom he lived for most of the parties’ relationship.  The paternal grandfather is no doubt a person very well known to the children. 

Conclusion

1. Overall, I come to the conclusion that none of the matters raised by the mother represent a change of circumstance.

2. There would have to be a very significant change and extremely significant new evidence to justify the upheaval of further litigation for these children with all the consequences that would flow, in terms of being interviewed and subjected to pressure until those proceedings were concluded, and the more significant matter of perhaps being moved from their current schools into which they have settled for 2016.  As much as anything, the absence of the children from school on a very regular basis was a factor in the change of residence.

3. On that basis, I will dismiss the application by the mother. 

4. The application of the father was for dismissal of the mother’s application and also for costs. I do not expect the mother to be in a position to respond immediately to the costs aspect. 

5. Accordingly, the Orders provide for four weeks for the mother to file any material in response to the father’s application for costs and in the event that he wishes to do so, for the father to have a further fortnight to respond to any material that the mother files.

6. I make orders accordingly.

I certify that the preceding forty six (46) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 12 April 2016.

Associate: 

Date:  26 April 2016