Carlyon & Graham
[2024] FedCFamC1F 443
•27 June 2024
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 child live with her and that the Court grant an ADVO to protect the child's safety from the father. The Initiating Application was silent as to any time with the father.
The mother's application was opposed by the respondent father (“the father”) who seeks its dismissal and orders pursuant to s 114Q of the f the Family Law Act 1975 (Cth) (“the Act”). The latter issue was resolved by consent and orders were made this morning.
The orders the mother seeks attract application of the provisions of s 65DAAA of the Act.
DOCUMENTS
The mother relied upon the following documents:
(1)Initiating Application filed 11 March 2024;
(2)Affidavit of Mother filed 13 June 2024;
(3)Affidavit of Mother’s Sister filed 13 June 2024; and
(4)Case Outline.
The father relied upon the following documents:
(5)Amended Response filed 13 June 2024;
(6)Affidavit of Father filed 13 June 2024; and
(7)Case Outline.
In addition, the parties agreed that regard should be had to the Reasons for Judgement delivered 8 April 2022 by Campton J anonymised as Carlyon & Graham. The father’s counsel referred in submission to an affidavit of the father filed 4 April 2024 while the mother’s solicitors referred in submissions to an affidavit of the father’s solicitor filed 18 April 2024.
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.
The trial judge under the heading "Conclusions as to sexual abuse" found as follows:
306Having regard to all of the foregoing matters which to me indicate the challenges in accepting [X’s] disclosures as probative of sexual abuse by the father, I am not satisfied to the requisite standard that the father sexual abused [X] as alleged by the mother on any occasions.
307My preference as to the father’s denial of the event is supported by the further findings in these reasons as to the mother being reckless in making serious allegations absent supporting evidence, such as the father occasioning a cigarette burn to [X], and the mother’s propensity to draw conclusions from disparate pieces of evidence which do not appear on their face to logically connect. The mother, in arriving at her conclusion that the father has definitely occasioned sexual abuse on [X], relies on “loose associations, gratuitous assumptions, overvalued beliefs, and the false construction of loose connections in order to formulate her beliefs” (family report, page 54). That finding finds support in the mother’s unsubstantiated contentions as to the father’s surveillance and her exchange with an unknown person at a motel.
In addition to allegations of sexual abuse the mother also made various allegations of family violence. In relation to those allegations the trial judge found:
323In considering the evidence as to whether the father is a perpetrator of family violence, I prefer the evidence of the father over the mother where it differs having regard to the nature of the allegations.
324As set out earlier in these reasons the mother’s evidence on a number of important topics was unreliable. She was prepared to make a broad contention as to the father occasioning physical abuse upon [X] by way of cigarette burns in a reckless manner. I accept the father’s evidence as to the denials as to family violence. I am not satisfied to the requisite standard that the father committed any acts of family violence as alleged by the mother.
325Counsel for the mother conceded at the conclusion of the trial that even if the mother’s allegations of family violence were accepted, those findings would not lead to satisfaction that the father poses an unacceptable risk to [X] arising from family violence.
326For the reasons previously given I am not satisfied that the father was a perpetrator of family violence as alleged by the mother…
In relation to the issue as to whether or not the mother posed an unacceptable risk to the child the trial judge found:
329For the reasons that follow I find that the mother’s beliefs are genuinely held and find consistent with [Mr H’s] expert evidence that:
112.[the mother] is genuinely concerned for the safety of [X], and has acted in a manner commensurate with these concerns. Ultimately, the question is whether her concerns, real as these might be, are reality based. [X] is clearly aware of his mother's anxiety and distress, and attaches similar anxiety and distress to the prospect of seeing his father. It is not my view that [the mother] is being malicious or that she is seeking to alienate [X] from his father, but rather that she genuinely believes the narrative that she now presents.
330I had the opportunity to observe the mother in the witness box and carefully consider her oral evidence. I do not accept her evidence as recorded in paragraph 6 of these reasons that she will accept the Court’s findings that the father has not occasioned sexual abuse on [X]. It sat in odds with her oral evidence that she thought there was no chance that she could be wrong about her allegations and that no matter what happens in these proceedings she will always believe [X] has been abused. It also sits at odds with the mother’s incapacity to compel [X] to attend supervised time with the father when it has been scheduled, or to speak with his father on the phone, despite she consenting to orders permitting time to occur. The mother in her oral evidence could not say why things would change I found the alleged sexual assault had not occurred, although it was submitted on her behalf that she would take these orders seriously and comply with them because they will be “final orders”. I do not accept that submission. The mother did not comply with final orders in respect of [Mr Y]. She did not accept the findings of investigations (including JIRT, the local Court, and [Mr H]) that did not support her perception of the father.
331I formed the view that the mother absolutely and unequivocally believes the matters recorded in paragraph 4 of these reasons, being that the father is a perverted man who has sexually abused [X]. I find that the strength of that conviction, notwithstanding her best endeavours, in reality constrains her ability to facilitate a relationship between the father and [X].
332I accept the mother is a good parent but that her capacity is infected by her unwavering but false belief that [X] has been abused by his father.
333As recorded in these reasons, the difficulty with the mother’s approach is that because she is so convinced of the allegations, she then interprets [X’s] behaviour and her own experiences of the world through that lens.
334I accept [Mr H’s] concern that the mother’s hypervigilance and fixation with the idea of [X] being sexually abused by the father causes him harm in two ways:
(a)That he will grow to see himself as a genuine victim of abuse and experience the symptoms of a victim; and
(b)That he will be deprived of a relationship with his father.
335These risks are real and not fanciful. On the evidence it appears that they are already eventuating.
336The expert opined, and I accept after carefully listening to and observing the mother give her oral evidence, that there is a real and significant likelihood, if not an inevitability, that the mother will not change her fixed belief as to the father sexually abusing [X]. I accept [Mr H’s] oral evidence that:
…the only way, I think, for [X] to have a relationship with both of his parents is some kind of a significant change in the arrangements as they are now. If things stay the way they are, then it’s almost certain he’s not going to have a relationship with one parent.
337Given the history of the mother’s belief and the impact on [X] having regard to the nature of the mother’s and [X’s] relationship, I find that [X] will continue to hold the belief that the father has harmed him and is to be feared if he has contact with the father.
338I accept [Mr H’s] evidence as recorded in these reasons that [X] is likely to become embroiled in a delusional belief that he is a victim of sexual abuse should he continue to live with the mother. I find that that [X] living with his father gives him a greater prospect of having a relationship with both of his parents.
339Having regard to all of the evidence and specifically that of [Mr H] including the matters identified above I am satisfied that [X] would be an unacceptable risk of psychological abuse if he were to continue to live with the mother as she proposes.
Under a heading "Section 60CC considerations" the trial judge observed:
350I accept the evidence of [Mr H] and find that such a change by way of a removal of [X] from the care of his mother and his maternal grandmother is likely to have considerable, significant and substantial impact upon him and is likely to cause stress, distress and grief to [X] and his mother and maternal grandmother.
351The father demonstrated notable child focus and capacity when he proactively sought out his own psychological support from [Ms JJ] prior to commencing spending supervised time with [X].
…
354[Mr H] was clear in his opinion that [X’s] relationship with his father is beneficial to [X] and there would be multiple detrimental consequences for [X] if the father was absent from his life. He similarly said [X] would suffer multiple detrimental consequences if his mother was absent from his life. I accept the expert’s opinion on each of these matters and so find. This matter attracts particular weight when considering the mother’s fixed views and their likely consequences.
355I accept [Mr H’s] opinion and find that it is not likely [X] will have a relationship with his father notwithstanding the allegations of abuse are not substantiated if he continues to live with his mother.
Under a heading "Conclusion" the trial judge observed:
372… It is imperative that [X’s] exposure to the unacceptable risk in his mother’s household is mitigated. In doing so I accept that I will likely occasion to [X] a sense of grief at the temporary loss of his mother’s relationship and of anxiety at living in his father’s home with whom he has not had substantial time for many years and who he may believe presents a harm to him.
Subsequent to the making of orders, it appears from the affidavits of the parties that problems only started to appear when the mother’s time with the child moved from supervised to unsupervised time.
In early 2023 an incident occurred at the child's school. The mother alleges that the father hit her with his motor vehicle at a time when the child was in the car. The father was subsequently charged with offences under the Road Transport Act 2013 (NSW). A hearing of the charges took place in late 2023 and early 2024 the father was convicted. The father has subsequently lodged an all-grounds appeal from the conviction. The significance of this event will be addressed below.
The next court event occurred in December 2023 when the father asserted that the mother, in contravention of an order, failed to return the child to his care. He commenced proceedings for a Recovery Order and on 29 December 2023 orders were made for the mother to return the child to the father. The child was subsequently returned to the father's care in accordance with that order.
On 11 March 2024 the mother filed the current application.
On 4 April 2024 the father filed another application for a Recovery Order. On 12 April 2024 a judge of Division 2 made an order that the mother was to deliver the child to the father's care by 4.00 pm that day and that a Recovery Order was to issue but lie in the registry.
On 23 April 2024 directions were made for the listing of what was described as the “hearing of the Rice v Asplund determination” to take place today. The directions included a time by which Amended Applications, affidavits and Case Outlines were to be filed.
The mother did not comply with any of the directions. She did not amend her Initiating Application, nor did she file a single consolidated affidavit and the affidavit of any witness by 6 June 2024. She has still not filed any amended application; her affidavits were not sealed by the Court until 14 June 2024 and her Case Outline was filed six days late.
SUBMISSIONS OF THE MOTHER
The mother’s solicitor submitted that the Court would be satisfied that there has been a significant change of circumstances arising out of a number of incidents subsequent to the making of the final orders. The first such incident referred to by the mother’s solicitor was the car incident that occurred in early 2023. The mother’s solicitor described this as an incident of family violence and further contended that there was no reason for the father to be at the school and that his presence at the school constituted coercive and controlling behaviour. In that respect he referred to correspondence attached to the affidavit of the father’s solicitor contending the correspondence evidenced the parties had reached an agreement that this was to be first occasion on which the mother would spend unsupervised time with the child and that the mother was to collect the child from school.
The mother’s solicitor also submitted that the child has sustained psychological abuse as a consequence of being present in the motor vehicle at the time that the mother was hit by the car and that whilst the child has had counselling the child is prohibited from talking about the incident. The mother’s solicitor relied upon the report of Dr J, a paediatric specialist, in support of the submission that the child is prevented from talking about the car incident.
The mother’s solicitor also submitted that there is a general reluctance on the part of the father to foster a relationship between the child and the mother, and that the child’s behaviour subsequent to the events in early 2023 demonstrate that the child is suffering anxiety and distress as a consequence I presume of the father’s conduct.
SUBMISSIONS OF THE FATHER
The father’s counsel submitted that the report of Dr J is not supportive of the submissions made by the mother. Indeed, there is no reference in Dr J’s report to the effect that the father has informed the child that he cannot talk about the car incident. The father’s counsel submitted that the Court could not conclude that the incident involving the car constituted family violence and noted that the Court could only conclude that the father has been convicted of the event and that there has been an appeal. The father’s counsel submitted that the contentions that the father does not foster a relationship between the child and the mother are inconsistent with his conduct as referred to in an affidavit of the father filed 4 April 2024.
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.
She records as follows:
Based on their reports, [X] has been experiencing symptoms of stress, anxiety, and low mood in the context of a high conflict parental separation, family psychosocial stressors, and ongoing court proceedings. [X] has reported experiencing medically unexplained somatic symptoms, such as stomach pains and headaches, and stress-induced memory lapses. He also reported feeling numb and flat nearly every day, experiencing self-critical thoughts and low self-esteem, and engaging in unhelpful avoidance and distraction behaviours. [Mr Carlyon] reported noticing a deterioration in [X's] symptoms since the Term 4 school holidays in 2023, which coincided with sudden changes to [X's] routine and living arrangements and the commencement of court proceedings.
Dr OO records that she has engaged in treatment sessions with X to the following effect:
To date, treatment sessions have followed a cognitive behavioural therapy framework. Sessions have aimed to help [X]:
•Gain a better understanding of his emotions, such as anxiety, nervousness, and worry
•Increase his awareness and expression of emotions and body sensations
•Improve his sleep hygiene, set limits on excessive gaming, and implement a consistent routine
•Reduce interpersonal conflict with his step-siblings
•Increase his assertive communication with his parents
Future sessions will continue to consolidate the skills [X] has learnt so far. Sessions will also introduce additional stress management and emotion regulation strategies, behavioural activation skills to improve his low mood, and cognitive techniques to challenge his self-critical thoughts and increase his self-esteem…
APPLICABLE LAW
Parenting proceedings are governed by Pt VII of the Act. In making a parenting order, s 60CA requires that I am to regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, s 60CC(2) sets out the matters that are required to be considered. No one matter takes priority over the other. The matters to be considered are:
60CC How a court determines what is in a child’s best interests
…
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In considering the matters in s 60CC(2)(a), I must, pursuant to s 60CC(2A), consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that applies in relation to the child or a member of the child’s family.
Section 60CG of the Act requires me, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of a child and the person who has the care of the child. The word safety should, in my view, be given its ordinary meaning; that is, the orders should provide a degree of protection from the matters identified in the subsection to the extent necessary relative to the evidence and the risk of harm.
In circumstances where there is in place a final parenting order the operative provisions of s 65DAAA must be considered.
The operative section is conjunctive and mandates that the Court must not reconsider a final parenting order unless it has considered whether there has been a significant change of circumstances since the final parenting order was made and the Court is satisfied that in all of the circumstances taking into account whether there has been a significant change of circumstances that it is in the best interests of the child for the parenting order to be reconsidered. Section 65DAAA(2) provides a non-exhaustive list of matters that the Court may consider in determining whether or not it is in the best interests of the child for the final parenting orders to be reconsidered.
There is nothing new in the provisions contained in s 65DAAA rather it is a codification of well-established jurisprudence.
It has been clearly articulated in numerous authorities that the court should not “lightly entertain an application to reverse” an earlier order unless it is satisfied that there are changed circumstances It was sometimes inelegantly described as the rule in Rice & Asplund.
The rationale for the existence of the so-called rule is that the best interests of children are not promoted by endless litigation and that once the court has made a determination, unless there has been established a change of circumstances, then the court should not engage in further litigation in relation to the child. In that respect as long ago as in Freeman and Freeman (1987) FLC 91-857, Strauss J said at 76-470–76-471:
… Once the court … has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …
DISCUSSION
The mother contends that the incident whereby she was hit by a motor vehicle by the father in early 2023 together with what has occurred subsequently is sufficient to give rise to a significant change of circumstances and that it is in the best interests of the child for the final parenting orders to be reconsidered.
Much of the mother’s affidavit and that of her sister constitutes assertions based on belief rather than fact. Their respective belief, irrespective of how strongly it may be held, is not evidence sufficient to engage the determination required under s 65DAAA. The mother bears the onus of establishing that there has been a significant change of circumstances and that it is in the child’s best interests to reconsider varying the final parenting orders. That must be sourced in fact not belief.
The car incident that led to the father’s conviction and subsequent appeal occurred in early 2023. If it be a basis for the mother’s application, then it is unexplained, if she really believed that the child was at a risk of harm such that the orders she seeks need be made suspending the current orders, why she waited over one year to bring an application to vary the final parenting orders.
She has elected to place no evidence before the Court whether by way of Transcript or Judgment establishing the facts found by the Local Court as the basis for the conviction. This is significant because the father does not dispute that the car hit the mother, he says however that the mother threw herself on the bonnet of the car while the mother contends that the father drove the car into her. I infer that she contends that it was deliberate. There is a world of difference between the two propositions.
I could not find in those circumstances and in the absence of cross examination, what the mother’s solicitor urges, namely that it constituted an act of family violence. Nor could I find that the father’s attendance at the school constituted coercive and controlling behaviour. The correspondence referred to in the father’s solicitor’s affidavit make plain that there were various matters that were the subject of dispute and required agreement before the weekend was to progress. It is clear from a reading of the correspondence that there was in fact no agreement and that the mother chose not to respond to some of the correspondence. I could not find, in the absence of cross examination, that the father’s behaviour in attending the school before the time arranged for collection constituted coercive and controlling behaviour.
The mother says that the child was traumatised from seeing the car hit his mother, that it constituted psychological abuse, and he is suffering psychological distress. I have no doubt that the child would have been distressed by witnessing such an event. It is apparent however from the report of Dr J that the child’s stress and anxiety are in part a function of the build-up of events over the course of his life. In that respect I note that for a significant part of his life he was in the primary care of his mother. I could not find in light of this evidence that it constitute psychological abuse.
I also note the report of Dr OO that the current distress for the child emanates from the conflict between the parties, family psychosocial stressors and the current court proceedings. It is also apparent contrary to the mother’s assertion that the father has not stopped the child from seeing Dr OO because Dr OO refers to assessments and treatment as late as May 2024 (seven days before the date of her report).
The mother also contends that the father has not fostered a relationship between the mother and the child. The submission was devoid of particulars and reference to evidence to support it. In the absence of same I do not accept that submission. Apart from the incident involving the car the mother points to no event prior to then when the orders were not complied with. She agreed that she was advised of the appointment with Dr J and has a copy of the report, she attended an appointment with Dr OO and seems to have from her affidavit contact with the child’s school. Apart from an incident in late 2023 when she says the father did not facilitate time there is no other incident that she contends demonstrates a failure to comply with orders.
The mother contends that the child has been self-harming and gives an example of the child banging his head. Beyond that one example she provides no other. I note that Dr OO does not report self-harming behaviours. The father does not report any self-harming behaviours. I note that the trial judge expressed considerable reservations as to the mother’s reliability as a witness. He described some aspects of her evidence as “incredulous” at [36] and others as “manifestly untrue” at [45].
She does not say when this self-harming occurred, on how many occasions she has observed it, over what period of time or what the child said if anything when he was banging his head. The failure by the mother to provide any context means that the Court is deprived of the ability to assess or contextualise in any way her assertion. The mother does not contend as a consequence of this asserted self-harming behaviour that she has done anything such as contacting the Department of Communities and Justice. Beyond the mother’s mere characterisation of it as self-harming behaviour, the paucity of evidence does not permit the Court to reach any conclusion.
The mother contends that the father has not consulted her about the issue of a passport, or about travel, did not inform her of various medical attendances for the child and refuses to engage in mediation or discussions about make up time. The final orders invest the father with sole parental authority subject to him advising the mother about any decision he intends to make and to invite her views and to advise her of the outcome. There is nothing in the orders that requires the father to advise the mother about any travel he intends to take or to engage in mediation or discussions about make up time. The father through his counsel conceded that he had not advised the mother about the issue of the passport and denied that the child had fractured his leg and consequentially there was no need to inform her of something that had not happened. The mother’s solicitor conceded the mother was informed of the attendance on Dr J. Her complaint morphed into one about not being invited. There is a degree of irony in the mother’s complaints about these matters in circumstances where the Court has issued a Recovery Order and have it lie in the Registry for 12 months to ensure the mothers compliance with orders. I am not satisfied that any of the mother’s assertions referred to above amount to a significant change of circumstances or are matters that would warrant in the child’s best interests a reconsideration of the final parenting orders.
The mother contends that the child is experiencing memory gaps and is under an enormous level of stress and pressure and has been told not to talk about the car incident. Apart from the last contention and to which I have earlier referred, the mothers’ assertions are consistent with the evidence of Dr OO who reports, “[X] has been experiencing symptoms of stress, anxiety, and low mood in the context of a high conflict parental separation, family psychosocial stressors, and ongoing court proceedings”.
Consistent with her opinion, the continuation of these proceedings is a contributing factor to the child’s distress. The idea that there is parental conflict is not a significant change of circumstances. It is clear from the Reasons for Judgement that the parties have been engaged in disputation and litigation since shortly after their separation in October 2018. The chronology of events in the Reasons for Judgement make plain a long history of parental conflict involving numerous attendances before various courts, the intervention of Police and various child welfare authorities. Likewise, the stress upon the child occasioned by parental conflict and litigation is not a significant change in circumstance. In that respect I note paragraphs [108] - [111] of the Reasons for Judgement and in particular the evidence of Mr H that the child was already “quite damaged.” It is also consistent with the evidence of Dr J that there has been a cumulative build up of events over the course of his life.
The mother also asserts that there are issues about school attendance and performance which she says have also deteriorated. Beyond her assertion she provides no objective evidence to support either contention in circumstances where it would have been relatively easy for her to have obtained school reports. Even accepting the mother’s case at its highest in relation to these contentions I am not satisfied they are such on their own as to warrant in the best interests of the child a reconsideration of the parenting issues.
The mother also asserts that the child has stopped engaging in sport which is inconstant with the evidence of Dr J and that he is excessively gaming which is supported by the evidence of Dr J. Excessive gaming seems to Dr J to be a significant contribution to his headaches.
In addition to the matters raised by the mother I have also had regard to the matters in s 60CC of the Act. I am satisfied in light of the findings in the Reasons for Judgement that the mother poses an unacceptable risk of psychological abuse to the child, and that the existing orders are the arrangements that promote the child’s safety. I am also satisfied that in light of the findings that any change to those arrangements would run the risk that the child’s safety would not be promoted. There is no matter to which I have been referred that calls for a reconsideration of the parenting arrangements that challenges the finding of unacceptable risk.
I note the mother's evidence that the child says that he loves her and wants to live with her. The mother says that this was expressed to her in a text message dated 13 May 2024. The context surrounding the text message or any messages to which it is responding are not provided. I accept that it records a view of the child at a particular point of time. The mother does not contend that the child has said this on any other occasion or that it represents a persistent and continuing view of the child.
I have considered and am satisfied in light of the findings recorded in the Reasons for Judgement as to unacceptable risk and the events referred to in the evidence subsequently that the child’s developmental, psychological, emotional, and cultural needs and the party’s capacity to meet those needs are met by a continuation of the current orders. There is no matter to which I have been referred that calls for a reconsideration of the parenting arrangements in light of the matters going to a consideration of the child’s developmental, psychological, emotional, and cultural needs.
I note that there is a benefit to the child in having a relationship with each of his parents and the current orders accommodate that benefit within the context of the findings of unacceptable risk.
I am not satisfied that there is any material available that was not available to the Court that made the final order. I am not satisfied in light of the findings in the Reasons for Judgement and the evidence adduced subsequently that if the final parenting order was reconsidered the Court would make a new parenting order that affects the operation of the final parenting order in a significant way by either varying, discharging, or suspending the final order.
I am satisfied in light of the evidence of Dr OO that there is a detriment to the child from a continuation of the current litigation. Final parenting orders were made in April 2022 only to have been recommenced less than two years later by the mother. A continuation of this litigation, in light of the report of Dr OO, is one of the stressors that is causing the child’s anxiety. It necessarily follows that the cessation of the proceedings will remove it as a factor contributing to the child's stress and anxiety.
DISPOSITION
I am not satisfied that any of these matters referred to by the mother, either individually or collectively, constitute a significant change of circumstances that warrants the Court's reconsideration of the parenting issues. I am further satisfied that a reconsideration of the parenting orders would be inconsistent with the best interests of the child.
Accordingly I will dismiss the mother's initiating application filed 11 March 2024.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 28 June 2024
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