Chambers & Spillett
[2024] FedCFamC1F 33
•2 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) FIRST INSTANCE
Chambers & Spillett [2024] FedCFamC1F 33
File number: BRC 7870 of 2023 Judgment of: CAREW J Date of judgment: 2 February 2024 Catchwords: FAMILY LAW - CHILDREN – Where a final parenting order was made in April 2023 by consent which provided for the children to live with the mother, a gradual increase to week about care with the father and for the parents to have equal shared parental responsibility – Where the mother unilaterally ceased the father’s time with the children in June 2023 after failure by the father to produce the results of a drug test – Where time was not recommenced upon the mother receiving the father’s negative drug test results – Where the mother seeks substantial variation to the final parenting order, including sole parental responsibility and for the father to spend no time with the children – Consideration of the principles in Rice& Asplund – Where the evidence is insufficient to establish a significant change in circumstances – Application to vary the final parenting order dismissed.
FAMILY LAW - PROPERTY SETTLEMENT – LEAVE TO COMMENCE PROCEEDINGS OUT OF TIME – Whether the mother would suffer hardship if leave is not granted – Whether discretion should be exercised in favour of granting leave – Where the mother has established that she will suffer hardship if her application for leave is refused – Where the mother’s reasons for delay in bringing an application are inconsistent, but nonetheless, not fatal – Where the father has not raised any prejudice he would suffer if leave were granted – Leave granted nunc pro tunc.
Legislation: Family Law Act 1975 ss 44(5), 44(6), 60CC, 65D(2), 69ZQ(1)(a) Cases cited: Bennett & Bennett (1991) FLC 92-191
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Carriel & Lendrum (2015) FLC 93-640
Doherty & Doherty [2016] FamCAFC 182
In the marriage of Althaus (1982) FLC 91-233
Poisat & Poisat(2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
Sharp & Sharp (2011) 50 Fam LR 567
SPS & PLS (2008) FLC 93-363
Tamaniego & Tamaniego [2010] FamCAFC 254
Welland & Hawthorn (2021) 64 Fam LR 520
Whitford & Whitford (1979) FLC 90 – 612
Number of paragraphs: 57 Date of hearing: 11 December 2023 Place: Brisbane For the applicant: Litigant in person For the respondent: Litigant in person Solicitor for the independent children’s lawyer Legal Aid Queensland ORDER
BRC 7870 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHAMBERS
Applicant
AND: MR SPILLETT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The applicant has leave to commence proceedings for property settlement nunc pro tunc pursuant to her amended Initiating Application filed 14 August 2023.
2.The matter is listed before a Registrar on 26 February 2024 at 9.30am for directions including consideration of a referral of the matter for alternative dispute resolution.
3.The operation of paragraph 3 of the Order made 4 April 2023 is suspended for the limited purpose of Ms C’s notes being available for the hearing on 11 December 2023 but not otherwise.
4.The application to reopen the parenting proceedings by varying the Order made on 4 April 2023 is otherwise 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
On 4 April 2023, I made a final parenting order in relation to two children, now aged 10 and seven, in circumstances described in my reasons in the following terms (at [2]-[3]):
The trial was due to commence yesterday but after negotiating all day the parties reached agreement and signed a minute of order late in the afternoon. On reflection, the parties required some further time to amend the proposed order and the matter was adjourned to today.
Both parents have an admitted history of illicit substance use, and family violence towards each other, and of exposing the children to their conflict. It seems both parents have reflected on their past behaviours and finally realise the impact of their behaviours on their children and commit to change for their children’s sakes. Given the admitted history of the parties, the independent children’s lawyer (“ICL”) identified risks posed to the children from both parents and was concerned to ensure sufficient safeguards for the children were included in any proposed order.
The order envisaged the children recommencing spending time with their father; and that occurred until 28 June 2023, when the mother unilaterally ceased all time and communication between the children and their father, as she has done in the past, for reasons that can only be described as allegations of a similar nature to those made at the trial.
I should also note that the 4 April 2023 order included the following notation:
The Mother accepts that the children are not at unacceptable risk of sexual harm in the Father’s care.
The mother recommenced proceedings just two months after the 4 April 2023 order and now also seeks leave to commence property proceedings four years out of time.
On 26 October 2023, the matter was again transferred to this Court for what were described as the following reasons:
a. Complex questions of law; and
b. Availability of judicial resources.
The decision to transfer was made after the reappointment of an independent children’s lawyer (“ICL”). One might have thought there were preliminary matters that required consideration prior to such an order. Given the limited nature of my previous involvement, this was not a case that required relisting before me.
In any event, on 16 November 2023, an order was made listing as “threshold issues” the following:
(a)Whether the applicant be permitted to commence proceedings for alteration of property interests following the breakdown of the parties' de facto relationship outside the time permitted in the Family Law Act 1975 (Cth)) as sought in Order 4 of the amended Initiating Application filed on 14 August 2023; and
(b)Whether the applicant’s application for parenting orders should be dismissed on the basis that there has been no substantial change in the circumstances of the children.
With the consent of the parties, the hearing proceeded on the papers with oral submissions received from both parents and the ICL. There was no application for cross-examination.
For the following reasons, the application to commence property proceedings out of time will be granted but the application to re-open the parenting proceedings will be dismissed.
BACKGROUND
The background to the parenting dispute is conveniently summarised in the reasons delivered on 4 April 2023 (at [4]-[9]) set out below:
The mother is 37 years of age and employed as [a] carer. She is [completing tertiary studies]. The father is 38 years of age and presently unemployed, although he lives in his own unencumbered home and expresses an intention to return to employment now that these proceedings have concluded.
The parents were together for 13 years, separating on a final basis in August 2017. As already noted, the mother and the father agree that their relationship was characterised by drug use and family violence inflicted by both of them against the other, with each contending the other was the main perpetrator. There is a current protection order in place naming the father as the respondent and the mother as the aggrieved. This order will remain in place until [late] 2026. The father has been convicted of breaching the previous protection order and spent [time] on remand [in late] 2021 in relation to those offences. The father was released upon conviction with no further time to be served.
Both parents admit using [illicit drugs] during the relationship. Both parents contend that they no longer use illicit substances, although they have both repeatedly failed to comply with requests by the ICL that they submit to drug testing. The most recent hair follicle test undertaken by the mother returned negative results for the drugs tested in May 2022. The most recent hair follicle test undertaken by the father returned negative results for the drugs tested in June 2022. Recent urine analysis for each party indicates no illicit substances detected as at 1 March 2023 for the mother and 23 March 2023 for the father.
The father’s case for trial was that the mother manipulated him into breaching the previous protection orders e.g. inviting him to her home to have sexual intercourse with her, and then reporting him. The father contended that the mother had sought to alienate the children from him, and had unjustifiably kept the children from him.
The mother’s case for trial was that the father was controlling and abusive, and addicted to illicit substances. The mother contends that she stopped time because of her concerns about the children’s safety after [X] told her the father had touched her on the bottom during the night when she was sharing a bed with him and that she was scared. The mother contends that her concerns were heightened because [Y] had told her day care worker in [mid] 2019 that the father had “licked her back bottom”. The mother concedes that the evidence, such as it is, could not support a finding that the father poses an unacceptable risk of future harm and accepts that her own compromised childhood experiences may have influenced the children. The mother has apparently been persuaded by a video, seen for the first time yesterday, that when the children told her they were scared of the father in [late] 2019, this was not true.
On 25 March 2022, an order was made for the father to spend two hours supervised time with the children each week at a contact centre. It is common ground that despite the mother turning up with the children on 17 occasions, the father has not spent any time with the children pursuant to that Order. The mother contends the children were too scared to see the father and she was not prepared to force the children to see the father. The supervisor’s notes indicate that the mother made no attempt to encourage the children to spend time with the father and this is now accepted by the mother. At the updated family report interviews on 1 December 2022, the children refused to see the father. The mother did not encourage the children to do so.
The two children of the relationship are X born in 2013 and Y born in 2016.
Pursuant to the 4 April 2023 order, the parents have equal shared parental responsibility, the children live with the mother and the amount of time spent with the father was to gradually increase. A week about care arrangement was to commence from 11 August 2023.
On or about 28 June 2023, the mother unilaterally ceased the father’s time with the children initially because the father did not provide the mother with the results of a drug test. When the mother did ultimately receive the results, which were negative, she nevertheless continued to withhold the children based on additional allegations that the father poses a risk of harm to the children.
In relation to the mother’s proposed application for a property settlement, the mother is four years out of time and will require leave. It is convenient to deal with this part of the application first.
LEAVE TO COMMENCE PROPERTY PROCEEDINGS
Section 44(5) of the Family Law Act 1975 (“the Act”) provides that a party can only make an application for an adjustment of property interests arising out of a de facto relationship (s 90SM) provided the application is made within two years from the date the de facto relationship has ended. This period is referred to in s 44(5) as the “standard application period.” In the present case, the standard application period ended in August 2019. The mother’s application for leave was not filed until 20 June 2023. If granted leave, the mother seeks an order for a distribution of the property pool in the proportions 75/25 in her favour.
Pursuant to section 44(6) of the Act, the Court may grant a party leave to apply after the end of a standard application period if hardship would be caused to the applying party if leave were refused.
In Sharp & Sharp, [1] the Court said:
It is important to bear in mind the purpose of s 44 in the context of the Act, which is that time limits are to be observed as the wording of that section makes clear. The principles concerning applications for leave to commence an action out of time are well known. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551 McHugh J said:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates. [footnotes omitted]
At 553 his Honour continued:-
A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated...”
[1] (2011) 50 Fam LR 567, [12] – [13] (“Sharp”).
The following general principles apply to an application for leave to commence property proceedings out of time:[2]
(a)The applicant bears the onus;
(b)The fundamental issue is whether the extension of time is necessary to do justice between the parties;
(c)Hardship is not established merely by the loss of a right to commence proceedings;
(d)There must be a prima facie claim worth pursuing i.e. a claim that is trifling will not suffice;
(e)There must be a real probability of success or at least a real probability of success in some measure;
(f)If the costs incurred by the applicant for leave are likely to be more than the property settlement awarded, ordinarily hardship would not be established; and
(g)The applicant’s evidence, such as it is, should be taken at its highest unless it is inherently unbelievable or contradictory.
[2] Ibid at [16] and [22]; Whitford & Whitford (1979) FLC 90 – 612 (“Whitford”); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Tamaniego & Tamaniego [2010] FamCAFC 254 at [162]; Welland & Hawthorn (2021) 64 Fam LR 520 at [37].
Even where hardship is established, the Court retains a discretion whether to grant leave.[3] The non-exhaustive list of matters relevant to the exercise of the discretion where hardship is established include the following:[4]
(a)The length of the delay;
(b)The reasons for the delay for the whole period;[5]
(c)The strength of the applicant’s case on the merits;[6]
(d)Any relevant conduct of the applicant;[7]
(e)The prejudice occasioned to the respondent by reason of the delay. [8]
[3] Whitford (fn 2) at 78,146. See also Sharp (fn 1) at 570 [22].
[4] Whitford (fn 2) at 78,146.
[5] In the marriage of Althaus (1982) FLC 91-233 at 77,267.
[6] See also Sharp (fn 1) at 573 [36] and 577 [70], [73].
[7] Ibid at 573 [38].
[8] Ibid at 580 [97].
The mother’s evidence in support of her application for leave is brief and currently uncorroborated by any documentary evidence but may be summarised as follows:
(a)Legal aid would not fund the mother’s application for property settlement (which is not at all unusual given the finite funds of legal aid);
(b)The mother attempted to file two previous applications (presumably seeking leave to commence proceedings out of time) but the mother either “did not have the correct paperwork” or “it would push trial back for children’s matters” and the mother was not prepared to delay the children’s matters;
(c)The father has already sold one property “in [late] 2021/[early]2022 to the sum of $800000” and is about to sell the family home;
(d)The father “does not pay any child support or contribute to children in any financial regard”;
(e)The mother “works two casual jobs to the maximum time limits while the children are at school” and receives social security such that her weekly income is about $1,100 and her weekly expenses are about $1,213;
(f)Without a financial settlement the mother contends she will be forced out of the rental market in Region H where she and the children currently live;
(g)The mother “has been fearful of repercussions of financial applications due to domestic violence experiences with the [father]”;
(h)The mother has minimal property consisting of a motor vehicle and modest household contents;
(i)The mother has a HECS debt of nearly $20,000 and superannuation of about $24,000;
(j)The mother fulfilled the major role of homemaker and parent during the relationship while the father worked six days per week.
There is very little evidence about what property is or was owned by the father other than the former matrimonial home in which he continues to reside.
The father’s evidence is also brief and uncorroborated by any documentary evidence. The father contends that he owned “the properties” prior to the commencement of the relationship and that the mother “never contributed at all to the property pool” and that they “never shared any bank accounts together”. The father’s financial statement indicates that he is unemployed but lives in the former matrimonial home which he estimates is worth $780,000 and is unencumbered. The father also contends that he has no other property of significance other than his superannuation which he contends is valued at $138,000. The father owes $11,000 in council rates. The father receives unemployment benefits of $350 per week. He has no other income. The father does not pay any child support.
DISPOSITION
It seems to me that even on the limited evidence currently before the Court the mother has established that she will suffer hardship if her application for leave is refused. On her evidence, which is taken at its highest, this was a relationship of some 13 years during which two children were born. Irrespective of what may have been a limited financial contribution by the mother, it seems not to be in contention that the mother was the major homemaker and parent while the father worked long hours. At separation, the children were four and one year old respectively. The father has made little financial contribution for the children since separation apart from paying an unknown amount of child support for a few months in 2019.
It could not be suggested that any claim by the mother would be trifling, although her current claim for 75 percent of the property may be ambitious. Having regard to the separation in 2017 bringing an end to the common use of the matrimonial home, the length of the relationship, and the respective contributions during and after the relationship, it would appear likely that a court would find it just and equitable to make a property order.
It seems unlikely, given the father’s estimated value of the property pool, that any legal fees to be incurred by the mother would exceed her ultimate award, even at a substantially lower percentage than that claimed by her.
There has been a substantial delay in bringing her application for leave to commence proceedings. On the one hand, the mother contends that she did attempt to file an application on two occasions, yet on the other hand, she contends that she did not pursue her claim for fear of retribution. The two positions appear inconsistent particularly when the mother also contends that she in effect elected to proceed only with the children’s matters which she considered more important. While inconsistent, I do not consider this to be of itself fatal to the mother’s application for leave.
The father has not raised any prejudice he would suffer if leave were granted, other than the fact of proceedings being commenced.
Overall, I conclude that the mother should be granted leave. As her application for final orders has in fact already been filed, leave will be granted nunc pro tunc.
HAS THE APPLICANT ESTABLISHED A SIGNIFICANT CHANGE IN CIRCUMSTANCES SUCH AS TO WARRANT THE RE-OPENING OF THE FINAL PARENTING ORDER MADE ON 4 APRIL 2023?
While the existence of a ‘final’ parenting order does not prevent the court discharging, varying, suspending, or reviving some or all of a parenting order in an appropriate case,[9] it has long been the practice for the Court to apply a degree of caution when considering whether to re‑open a final parenting order, particularly one made recently.
[9] Poisat & Poisat(2014) FLC 93-597 (“Poisat”) at [37] - [38] and s 65D(2) of the Family Law Act 1975 (Cth) therein referred.
The Full Court in Rice & Asplund (per Evatt CJ) said:[10]
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 (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
[10] (1979) FLC 90-725 at [7].
The above statement represents what is referred to as the ‘rule’ in Rice & Asplund. Whether or not the principles identified in Rice & Asplund are more properly called a ‘guiding principle’ rather than a ‘binding rule’, it is apparent that the principles have been universally applied for decades.[11]
[11] Poisat (fn 9) at [8].
Whether the ‘rule’ in Rice&Asplund is applied at a preliminary stage or after a full hearing, the best interests of the child remains paramount,[12] although “the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case”.[13] While the Court is not relieved of its obligation to consider the legislative provisions set out in Part VII of the Act, so far as relevant,[14] “the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings”.[15]
[12] Ibid at [42].
[13] Ibid.
[14] Ibid at [32] and [34].
[15] Carriel & Lendrum (2015) FLC 93-640 at [55].
The stage of the proceedings at which the rule is applied is a matter within the discretion of the presiding judicial officer,[16] although its significance is likely to be greater when applied at a preliminary stage.[17]
[16] Bennett & Bennett (1991) FLC 92-191 at [63].
[17] SPS & PLS (2008) FLC 93-363 at [48] (“SPS & PLS”).
The significance of the variation sought will have an impact on the application of the rule. As Warnick J held in SPS & PLS:[18]
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
[18] Ibid.
That said, any variation of a parenting order pursuant to s 65D(2) of the Act will necessarily invoke the paramountcy of the best interests of the child and the consideration of such provisions in s 60CC as are relevant to the determination.[19]
[19] Doherty & Doherty [2016] FamCAFC 182 per Kent J at [64] – [65].
Even when the rule is applied after a full hearing, two particular public policy matters remain of some significance: firstly, to guard against one judicial officer simply substituting her or his view for that of the original judge; and secondly, to have a rule that can be relied upon to discourage endless litigation even if applied in that particular case at the conclusion of the full hearing.[20]
[20] SPS & PLS (fn 17) at [56] – [58].
Irrespective of the application of the Rice & Asplund principles, the Court has power to limit the issues that require investigation at trial as set out in s 69ZQ(1)(a) which provides:
(1)In giving effect to the principles in section 69ZN, the court must:
…
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily;
…
The mother’s parenting application seeks substantial variation to the 4 April 2023 order. In particular, the mother seeks an order for sole parental responsibility and for the father to spend no time at all with the children.
What were the significant issues for determination at trial?
In the circumstances of this case, it is worth noting that the issues identified by the parents for determination at the trial in April 2023 were as follows:
(1)Whether the father poses an unacceptable risk of harm to the children by reason of alleged sexual abuse, alleged exposure to family violence, alleged illicit substance use, and/or alleged inappropriate physical discipline of the children; and
(2)Whether the mother poses an unacceptable risk of harm to the children by reason of alleged exposure of the children to the mother’s negative views of the father, alleged illicit substance use, and/or failing to comply with court orders.
In disposing of the proceedings in the terms of the order agreed to by the parents and the ICL on 4 April 2023, my reasons included the following at [12]-[17]:
In this case, neither parent continues to contend that that the other parent poses an unacceptable risk of harm to the children despite their respective positions up to the date of trial. The parents agree that the children should initially remain living with the mother and should resume spending alternate weekends with the father, before moving to an equal time arrangement in August 2023.
The father accepts that it is necessary to continue to submit to drug testing and engage in counselling to address his issues raised by the mother, including concerns about his parenting raised by the mother.
The mother also accepts that it is necessary to continue to submit to drug testing and to engage in counselling to address her issues, including the impact of exposing the children to her negative views of the father. The mother is confident that the father would not act inappropriately in a sexual way with the children, and to be fair this seemed to be her position coming into the trial. The mother is also confident that the provisions of the proposed order will address her concerns about future risk.
The parties have agreed that the order should be explained to the children by the family report writer and the children will have the support of their own counsellor whom the parties have agreed to retain, with the first appointment being on 22 May 2023.
Despite their history, it seems each party has experienced something of an epiphany, now acknowledging the benefits they each bring to their children’s lives. With the inclusion of certain provisions in the proposed order that address the risks as previously identified, the ICL supports the proposed order.
With the matter being adjourned overnight, the parents have had plenty of time to consider their respective positions, and in the circumstances I propose to make the order agreed to by the parents and the ICL.
The 4 April 2023 order provided for the parents to ensure that the children engage in non‑reportable counselling with a psychologist and clinical family therapist, Ms C. This has occurred and despite the counselling being non-reportable the mother caused a subpoena to issue to Ms C to produce her records. Inspection of Ms C’s records was initially opposed by the ICL and the father.
Although Ms C expressed some reticence about her notes being inspected by the parents, given a concern they might be used inappropriately or “weaponised” in the Court process, Ms C ultimately opined that inspection of her records, at that time, “would not rupture the therapeutic relationship” between the children and Ms C. When therapy is ordered to be non-reportable, the usual reason is to protect the therapeutic relationship.
The ICL withdrew her objection to Ms C’s notes being inspected for the purposes of the hearing. Despite the father’s continued objection, I determined that in the interests of ensuring the paramountcy of the children’s best interests leave ought be granted for the parents and the ICL to inspect Ms C’s notes for the limited purpose of the hearing before me.
What are the changed circumstances relied upon by the mother?
Prior to identifying what circumstances are relied upon by the mother to justify variation of the parenting order, I note that the mother has cast doubt about the legitimacy of her consent to the 4 April 2023 order stating variously as follows:
(a)“I was forced under duress to sign consent orders by my own legal representatives, with the threat that they would withdraw and leave me unrepresented”;
(b)“Not at any point did I agree with anything that I was manipulated into signing but was told that short term care via child safety was a very high possibility if we did not come to an agreement outside court, I did not want my children in short term care so I signed … ”.
As the mother has previously been unrepresented and is currently unrepresented it seems improbable that a threat by her lawyers to withdraw created a circumstance of duress. Further, as the proceedings were between parents and this Court has no jurisdiction to make an order for the children to be placed in “short term care” it seems improbable that any such suggestion could affect the legitimacy of the mother’s consent. I also note that the parties negotiated for an entire day and then had overnight to consider their respective positions prior to the order being made. I am not persuaded that the matters now raised by the mother about the nature of her consent, should be given significant weight in the context of this case. In the absence of any compelling evidence to the contrary, I am satisfied that the mother provided her consent at the time the order was made on 4 April 2023 for the reasons outlined in the reasons for judgment. While the mother may have had a change of heart since the making of the order, that is not a sufficient basis for re-opening the parenting proceedings.
The facts relied upon by the mother to establish a significant change in circumstances since the 4 April 2023 order, largely consist of mere assertion or opinion unsupported by evidence from herself or anyone else. For example, the mother rarely discloses any evidentiary source to support her assertions. If the mother intended to rely upon what someone told her rather than mere suspicion, the detail of any conversations should have been set out in her affidavit.
Turning then to consider the alleged changed circumstances, the mother contends as follows:
(a)The father “has broken court orders and got into bed with the children on the very first night after his mother left”;
(b)The father “exposed the children to abuse and yelling and screaming at his mother [in April] 2023”;
(c)The father made inappropriate comments about “girls ‘bottoms’” at the beach such as “look at her beautiful bum”;
(d)The father “continues to say derogatory comments about the mother being a whore, a maggot, how much he hates mother (sic) and tells children they will never see mother (sic) again”;
(e)The father “took the girls on the push bikes and made them show him where they lived”;
(f)The father made comments to one of the children, namely, “[…] virgin, […] vagina”;
(g)The father tried to get one of the children to suck his toes for his birthday, offering her money to do so;
(h)The father “exposed himself to children (sic) on two visits the first was [in mid] 2023 and the second time [the following month]. On both occasions text messages were sent to mother (sic) one saying ‘mum he acting really weird’ and the next was ‘help mum’”;
(i)The father permitted the children to “swipe” through profiles of women on a dating app, while making inappropriate comments about their “boobs” etc;
(j)The father told the children he had weapons in the garage;
(k)The father took the children’s “safe phone” away from them;
(l)The father is awaiting a court date for “[…] weapons charges [in mid] 2023”;
(m)The father locked the children outside in the cold and dark on Friday 2 June 2023;
(n)The father took the children on a bike ride to the train station to meet his friend Ms G and one of the children observed Ms G “taking white pills from her bra and placing them on car seat (sic) and [the father] put them in his bag”. When they arrived home, the father and Ms G went into a room and locked the door;
(o)On 3 June 2023, the father was crying and said to the children that he wishes he was someone else;
(p)The father has refused to pay the children’s school camp costs, interschool sports costs, extracurricular fees, and for shoes;
(q)On occasions the father has not transported the children to school, extracurricular activities, and functions because he has no licence, no car and no money;
(r)The father refused to cater for a child’s birthday party;
(s)The father did not provide winter clothing for the children;
(t)The father is still using drugs and has not sought any medical or professional help with his addiction;
(u)The children have refused to engage with the father since 1 July 2023;
(v)The mother was advised by an unnamed neighbour of the father’s that in mid-2023 an incident occurred at the father’s home involving the father and another man while both were intoxicated and one chased the other down the street with a weapon and police were called;
(w)J Family Services provided a letter dated 26 July 2023 stating that they “hold significant concerns” about the father based on what the mother and the children have told them (although what they have been told is not disclosed), and on the basis of this they have assessed the father (whom they have never met) of being a “very high risk perpetrator of coercive control” and have reported their concerns to Child Safety;
(x)The school have made reports to Child Safety;
(y)The father did not produce hair follicle drug test results until September 2023, despite being required by the 4 April 2023 order to undertake the test within 7 days of a request being made.
Several of the mother’s contentions are trivial and could not possibly support a reopening of the parenting proceedings. The source of some of the mother’s contentions could only have come from the children and the mother does not disclose the circumstances in which any such information was provided e.g., what questions she may have asked the children to elicit certain information. Opinions expressed by others which do not disclose the factual basis for that opinion cannot be persuasive and opinions expressed that are based entirely on information provided by the mother cannot be given significant weight in the circumstances of this case.
Ms C’s records
The children have attended upon a psychologist, Ms C, on several occasions since the 4 April 2023 order. Parts of Ms C’s notes have been tendered and reflect the children’s repeated wish not to spend time with the father. The children’s refusal to spend time with the father is not a new development. The family report prepared by Ms B on 14 January 2023 noted that the children and father were not observed together because of the children’s refusal. Despite the children’s stated wishes, the mother and father agreed to the children spending time with the father, and the children spent time with the father pursuant to the 4 April 2023 order on seven occasions until the mother unilaterally ceased time on 28 June 2023.
Ms C’s notes of her session with the child, X, on 22 May 2023 records the child saying that her mother told her that the father “does drugs” and that her mother would not lie. This must call into question the reliability of any information purportedly provided by the children at least in relation to his alleged continuing drug use. During a session on 11 July 2023, X said that the father exposes himself at the beach and in the park by pulling his pants down and exposing his buttocks to girls and the children. It is impossible to know what, if anything, may have occurred but it seems improbable that if the father had indeed acted in the way suggested that he would not have come to the attention of police. During a session on 21 July 2023, Y said that her biggest worry about the father was that he would hit them with a wooden spoon and put curry paste in her mouth. This was an admitted fact by the father in the previous proceedings. The child did not say this had occurred since 4 April 2023. During a session on 17 November 2023, Y said that her father favoured X. Ms C most recently saw the children on 2 December 2023 when she described them as happy and relaxed.
Records from the Department of Child Safety, Seniors and Disability Services
Records from the Department of Child Safety, Seniors and Disability Services have been tendered and the information contained therein includes the following:
(a)In early 2023, information was provided by an undisclosed source that the father is a drug addict and has dangerous weapons;
(b)The next day, the reporter was contacted and provided additional information:
(i)Both parents using illicit substances during the relationship but no longer use illicit substances;
(ii)The father was controlling and abusive and addicted to illicit substances;
(iii)Neither parent poses an unacceptable risk of harm to the children;
(iv)The father would not act inappropriately in a sexual way with the children.
(c)Prior to the 4 April 2023 order, a check was undertaken of the father “to understand the extent of [the father’s] criminal offending” in the twelve months prior to 1 April 2023 to “assess the level of risk to the children who are spending time in his sole care” and the following was noted:
The father was subject to [weapons related charges in late] 2022, [other charges in late] 2022, [drug related charges in early] 2023, and [other charges in early] 2023.
(d)Given the lack of information to indicate that either parent has harmed the children or is placing the children at an unacceptable risk of harm, the information received from the reporter was recorded as a child concern report. It was noted that the children are “well sighted by mandatory reporters”;
(e)In early 2023 various reports were received repeating allegations previously made prior to the 4 April 2023 order. For example, that:
(i)The father was physically violent and the children were scared of him;
(ii)The father used to hit Y with a wooden spoon and put curry powder in her mouth;
(iii)The father had put his hands in one of the children’s pants “before”;
(iv)There is a history of domestic violence;
(f)Given the “historical concerns” it was assessed that the information received did not meet the threshold for a notification;
(g)In mid-2023, additional reports were received, for example:
(i)The older sister had experienced sexual abuse from her father;
(ii)X was really scared;
(iii)“he” hopped into bed with them;
(iv)“he asked her to suck his toes”;
(v)“he has hurt them”;
(vi)“they are scared of him and he has been accused of sexual abuse towards [X]”;
(h)It was concluded that the “[i]nformation does not suggest significant or detrimental harm has occurred … [t]he father’s conduct and comments is (sic) questionable … but does not suggest he is being abusive or neglectful. … no information to suggest that sexual abuse has occurred. … Neither of the children are displaying any other sexualise[d] behaviours. Previous allegations of sexual abuse has (sic) been investigated, with no further police action taken. Primary worries are known and have already been assessed and considered.”;
(i)In mid-2023, a report was received that X had said the father made “comment about the breasts [of some women]”;
(j)It was concluded that while “the father’s comments are of a sexually inappropriate nature, there is no information to suggest that [the father] is making these comments in an attempt to sexually coerce or groom his daughters”;
(k)In mid-2023, a report was received that the children are fearful of the father and that he has weapons and that “has pulled his pants down … and tells them to look”;
(l)It was concluded that the concerns were historical in nature and did not raise a reasonable suspicion that the children were at an unacceptable risk of harm;
(m)In mid-2023, reports were received that the father had “pills”, had “pull[ed] his pants down”, that the father “always yells” and “kept getting angry”, and that he had “[weapons] in his shed”;
(n)It was concluded that the information did not suggest there were new concerns that placed the children at risk from the father.
Records from Queensland Police
Records from Queensland Police have been tendered and the information contained therein includes the following:
(a)In mid-2023, police attended the father’s home in response to a report raised by the mother that the children were unsafe. Police spoke to the father and the children separately. The children told police that the father had become angry with them when they told him they did not really like him after he asked if they loved him. The father raised his voice and said “fine” and slammed the door. One of the children messaged the mother and told her that the father was angry at them and the father then grabbed the child’s phone. When asked if they felt unsafe with the father, neither child said they felt unsafe. The children denied, when asked, if the father had been physically or verbally abusive to them and stated that after the small altercation he had been “super nice to them”. The father admitted yelling at the children but said it was because they were on their phones late at night and needed to go to sleep;
(b)It was concluded that the report was unfounded;
(c)There is no record of police attendance in relation to an incident involving a weapon.
DISPOSITION
Given the admitted history of this family, it is certainly understandable for the ICL to retain ongoing concerns about the suitability of either parent to care for the children. Particularly, when there is some suggestion that the parents have not adhered to some of the provisions of the 4 April 2023 order that were intended by the ICL to provide some measure of safeguard for the children. It was on this basis that the ICL supported the reopening of the parenting proceedings.
However, it cannot be the role of this Court, nor indeed for an ICL, to maintain an ongoing supervisory role after a final parenting order has been made unless the order itself provided for same and for a finite period.
To the extent that reports have been made to the statutory authority concerned with child welfare, none have met the threshold requiring intervention.
The evidence before me is insufficient to establish a significant change in circumstances warranting the reopening of the parenting proceedings.
The mother’s application to vary the parenting order made on 4 April 2023 will be dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 11 February 2024
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