FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carlyon & Graham [2024] FedCFamC1F 443
File number(s): SYC 9951 of 2023 Judgment of: SCHONELL J Date of judgment: 27 June 2024 Catchwords: FAMILY LAW – PARENTING – Interim proceedings – Rice & Asplund – As now codified in the Family Law Act 1975 (Cth) s 65DAAA – Where final orders were made in April 2022 – Where the mother contends that the child has witnessed domestic violence being committed by the father against the mother – Where the mother contends that the witnessing of domestic violence has resulted in psychological and emotional harm to the child – Where the mother contends that the father has not facilitated a relationship between the mother and the child – Where the mother contends that has been a significant change in circumstance – Where the father seeks that mother’s application should be dismissed – Where long litigation history – Held that no significant change in circumstance and not in child’s best interest to reconsider the parenting orders – Application dismissed. Legislation: Family Law Act 1975 (Cth)
Road Transport Act 2013 (NSW)
Cases cited: Carlyon & Graham [2022] FedCFamC1F 228
Freeman and Freeman (1987) FLC 91-857; 11 Fam LR 293
Rice v Asplund [1978] FamCA; (1979) FLC 90-725; 6 Fam LR 570
Division: Division 1 First Instance Number of paragraphs: 71 Date of hearing: 27 June 2024 Place: Sydney Solicitor for the Applicant: Mr Gad, Gad & Co Lawyers Counsel for the Respondent: Mr Macpherson Solicitor for the Respondent: Bridges Lawyers ORDERS
SYC 9951 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GRAHAM
Applicant
AND: MR CARLYON
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
27 JUNE 2024
THE COURT ORDERS THAT:
1.The mother’s Initiating Application filed 11 March 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlyon & Graham has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
On 11 March 2024 the applicant mother ("the mother") filed an Initiating Application seeking to set aside final parenting orders made 8 April 2022 in relation to the parties’ only child X, born 2013.
The Initiating Application sought various orders including that she be granted sole parental responsibility, that the…
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CaseChat Overview and Summary
In the Federal Circuit and Family Court of Australia, Schnell J dismissed an application by the mother seeking to vary the existing parenting orders concerning her son. The father had sole parental responsibility for the child, and the mother sought supervised contact. The mother contended that the child had witnessed domestic violence by the father against her, that this had caused psychological and emotional harm to the child, and that the father had not facilitated a relationship between the mother and the child. The mother sought an order that it was in the child's best interests for her to have sole parental responsibility. The father opposed the mother's application on the basis that there had been no significant change in circumstance and that it was not in the child's best interests to reconsider the existing orders. The court found that the mother's application should be dismissed. The court found that there had not been a significant change in circumstance and that it was not in the child's best interests to reconsider the existing orders. The court found that the mother had not established that it was in the child's best interests for her to have sole parental responsibility. The court found that the child had been exposed to significant stress and anxiety and that the mother's allegations of domestic violence and sexual abuse had not been substantiated. The court found that the child's psychological and emotional well-being was best served by maintaining the existing orders. The court dismissed the mother's application and made no orders in relation to the child's care, control, and welfare.
Orders
Orders of the court
SYC 9951 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS GRAHAM
Applicant
AND:
MR CARLYON
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
27 JUNE 2024
THE COURT ORDERS THAT:
1. The mother’s Initiating Application filed 11 March 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
I have read all the documents relied upon by the parties but it is not necessary that I refer to every matter alluded to or referenced in submissions. The matter proceeded on the documents and with submissions. No application was made to cross examine. BACKGROUND To understand the current application, its context in the history of parental conflict and disputation including the intervention of the Court needs recitation. On 8 April 2022 a judge of Division 1, following a contested hearing, made orders that the father have sole parental responsibility, that the child live with him, that for a period of three months following the orders the mother spend no time with the child, then for a period of six months supervised time at a Contact Centre and thereafter time with the mother each alternate weekend and for half of each school holiday period. The orders made by the trial judge arose in a context where the mother contended that the Court should make a positive finding that the father posed an unacceptable risk of sexual abuse and should spend no time with the child. The trial judge recorded the following:4 During the course of her oral evidence the mother said with conviction that:(a)She had “no doubt” that the father was a paedophile; and that (b)The father is a “very sick and perverted human being”; and that(c)The father “preys on his own son”; and that (d)She believed [X] had been “anally penetrated” but did not say that it was necessarily the father who had done this; and that(e)The father was a member of a paedophile ring who took [X] to a […] introducing him to men who befriended [X] and that [X] was “groomed into performing sexual behaviours”.… 10The father categorically denies all of the mother’s allegations. He maintains there is no evidence to support the mother’s claims. His view, as expressed to the single parenting expert, [Mr H], is that the mother:8.…has made these claims to various agencies, including statements that invite the activation by these services of an immediate response and action devoid of any critical evaluation or consideration of the actual facts. In this regard, [the father] describes [the mother] as well versed in providing hot buttons, that immediately activated a level of concern, invited protective action, and put into motion a range of protective reactions, all of which failed to consider the lack of objective evidence in support of the allegations.…17By the conclusion of the trial each parent and the ICL agreed that the parent with whom [X] lives or primarily lives ought to have sole parental responsibility for [X].18 For the reasons which follow I have determined:(a)The father does not pose an unacceptable risk of harm to [X]; however,(b)The mother does pose an unacceptable risk of harm to [X]. A Family Report was prepared by Mr H. He also gave evidence and was cross examined. The trial judge observed in relation to his evidence:107While [Mr H] accepted as positive [Dr N’s] statement that the mother has the capacity to consider and accept findings made by the Court, [Mr H] cautioned that his view after having met with the mother and assessed all of the relevant material in this matter was that mother was in reality immovable from her belief that the father has abused [X], saying:…with the greatest respect, your Honour, no matter what you say or do is going to change what [the mother] and her family believe. If you formed the belief that abuse has not occurred, that is just going to likely be interpreted as you having gotten it wrong; you, having been biased, you, not having listened to the information, you having made an erroneous conclusion or just making a mistake. I don’t think anything is going to change their beliefs about what’s happened.108He said unequivocally that so long as the mother retains her belief she will be unable contain that belief from [X]. Well, that’s one of the possibilities, indeed: that he understands from his mum that there’s a real risk associated with his dad, and those sorts of erroneous suggestions could, in and of themselves, account for why he has become so fearful. See, [X] has no particular reason in and of himself not to believe what people he loves and trusts communicate to him, and if he understands that they are worried, then it is likely that he will be worried. That kind of emotional contagion is overwhelmingly normal.109In that event [Mr H] opined that [X] is “quite likely to grow up disturbed”, including believing that he is a victim of child abuse regardless of whether he is or not, saying: I certainly think that it’s likely that he will grow up believing that his father is a person to be feared and to be avoided and who is dangerous to him. Whether that extends to sexual abuse or not depends on what is told to him, but I think it’s quite a likelihood that he will grow up to believe that. Your Honour, I have had other clinical cases where people have grown up to believe that abuse has occurred and have then become symptomatic in a way that is confirmatory of that, even though retrospective reconstruction of the evidence suggests that maybe the original assault may not have occurred at all, but that doesn’t correlate with them not being symptomatic and being anxious and stressed and having trouble trusting relationships and having problems with self-image and all the other incredible consequences of victims who’ve been abused. 110I asked [Mr H] to opine on the consequences for [X] in the event that he develops a false belief that he has been sexually abused by his father, to which he confirmed those consequences are not dissimilar and are equally significant to those he would experience had he actually been abused. He said [Ms Z] in her letter to the mother’s solicitors dated 24 August 2020 accurately described such consequences, including:long-lasting effects on brain development, psychological and social functioning, self-esteem, mental health, personality, sleep, health risk behaviours including substance use, self-harm and life expectancy. [Child-sexual] often co-occurs with physical and emotional abuse and other negative and stressful childhood experiences that independently predict poor mental and physical health outcomes in adult life... in addition to an increased likelihood of depression, panic disorder, alcohol abuse/dependence, drug abuse/dependence, eating disorders, posttraumatic stress disorders, sleep disorders suicide attempts and completed suicides.111A particularly disturbing part of [Mr H’s] evidence was that his “inevitable conclusion” that he believed [X] to be “really quite damaged now”. In that context, [Mr H’s] opinion, should it be accepted, necessitates prompt and robust action to change the trajectory of [X’s] life.
Evidence
Evidence Before The Court
The father’s counsel submitted that there has been no significant change of circumstances nor has the mother demonstrated that it is in the best interests of the child for the order to be reconsidered.EXPERT EVIDENCE Both parties referred to the report of Dr J, paediatric specialist, a copy of which was attached to the mother’s affidavit. Dr J’s report is dated 15 April 2024. The mother’s solicitor conceded that the mother was aware of the child’s attendance upon the specialist but contends that she was not invited to attend. Dr J’s report makes no mention of the car incident. That said, I could not infer its absence from the report that the doctor was not informed about it and could not draw the inference as submitted by the mother’s solicitor that the child is prohibited from talking about it. The mere fact that it is not referred to does not give rise to the inference submitted. Dr J’s report records the child has a gaming addiction and suffers anxiety and post-traumatic stress disorder. It records that he is currently attending Year 5 at U School where he enjoys physical education, science and maths but dislikes English. The report records that he has been experiencing episodes of blackouts since 2023, that they only occur when he is awake and most typically at school and that he has no recollection of what has happened following one of these incidents. The child reports to the doctor that they can happen as often as daily and the child has difficulty identifying exactly what may be causing the stress and anxiety. He also records that the child has been experiencing chronic daily headaches for the last month. He records that the child eats a well-rounded and varied diet, exercises several times a week and enjoys playing computer games. The doctor records that he was informed there has been a change of custody and school and notes understandably this would have been a significant change for the child. Under the heading of “Impression” Dr J records that the child is a:10-year-old boy who has been experiencing episodes of memory loss not associated with any events suggested of epileptic activity. I suspect that these events are anxiety or stress-induced events that are likely due to accumulative build up of stressful events over the course of his life. Additionally [X] has been experiencing chronic daily headaches in the last four months that are likely on the same spectrum. There are no red flags on the headaches to suggest that there is anything more sinister.The doctor records that he spoke to the child and the father about the diagnosis, provided education about optimisation of lifestyle including that his gaming has had a significant contribution to his headaches. Annexed to the father’s affidavit is a report of Dr OO dated 22 May 2024. Dr OO is the child's clinical psychologist. Dr OO reports that she has seen the child for two assessment sessions and 13 treatment sessions between March 2023 and May 2024 as well as two parent-only sessions with the child's father and his partner and one parent-only session with the mother. She says that her report is based on information obtained from the father and the child.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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