CLARKE & VARGAS
[2015] FamCA 292
•24 April 2015
FAMILY COURT OF AUSTRALIA
| CLARKE & VARGAS | [2015] FamCA 292 |
| FAMILY LAW – Application to vary parenting orders – Where final orders were made after five day trial in February 2014 - Consideration as to whether there were changed circumstances to justify a new hearing – Principles in Rice & Asplund (1979) FLC 90-725 discussed – Preliminary issue – Where change in father’s circumstances is not of sufficient significance to justify revisiting the parenting arrangements – Where it is not in the child’s best interests to be involved in further litigation – Application dismissed. FAMILY LAW – REVIEW – where father seeks to review Order dismissing interim parenting application – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Bennett (1991) FLC 92-191 Caracini & Paglietta [2009] FamCAFC 188 CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 DL & W (2012) FLC 93-496; [2012] FamCAFC 5 Freeman & Freeman (1987) FLC 91-857 G & G [2000] FamCA 12 In the Marriage of McEnearney (1980) FLC 90-866 King & Finneran (2001) FLC 93-079 Langmeil & Grange [2013] FamCAFC 31 Lowe & Lowe (unreported, High Court of Australia, Mason, Dawson and Toohey JJ, 6 April 1990) Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 Miller & Harrington (2008) FLC 93-383 Newling and Newling; Mole (Applicant) (1987) FLC 91-856 Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128 Rice & Asplund (1979) FLC 90-725 SCVG & KLD (2014) FLC 93-582 SPS & PLS (2008) FLC 93-363 |
| APPLICANT: | Ms Clarke |
| RESPONDENT: | Mr Vargas |
| FILE NUMBER: | BRC | 10951 | of | 2011 |
| DATE DELIVERED: | 24 April 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 2 March 2015 |
| REPRESENTATION |
| SOLICITOR FOR THE APPLICANT: | Ms Byrne from W P Lawyers |
| THE RESPONDENT: | In Person |
Orders
The Initiating Application filed 15 August 2014 is dismissed.
The Application in a Case filed 31 December 2014 is dismissed.
In the event Ms Clarke (the Applicant) seeks an order that Mr Vargas (the Respondent) pay the costs of and incidental to the Initiating Application filed 15 August 2014 and/or the Application in a Case filed 31 December 2014:
(a)the Applicant shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and
(b)the Respondent shall file and serve any brief written submissions in answer to the submissions filed and served by the Applicant seeking costs within a further fourteen (14) days thereafter; and
(c)the Applicant shall file and serve any brief further written submissions, strictly in reply to the submissions served by the Respondent, within seven (7) days of its service,
and any such application for costs shall be considered in Chambers.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clarke & Vargas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10951 of 2011
| Ms Clarke |
Applicant
And
| Mr Vargas |
Respondent
REASONS FOR JUDGMENT
On 28 February 2014, Bell J made orders, after a five day trial, in relation to the care arrangements for the child B, born in 2011. These Orders included that the child live with his mother and spend supervised time with the father - preferably on a weekly basis but, at least, on an alternate week basis – at a Contact Centre. The Order also accorded the mother sole parental responsibility for major long term issues relating to the child.
The February 2014 Order was not the subject of appeal.
What has happened since February 2014?
Before Bell J, the father had sought an order for equal shared parental responsibility and that the child live with each of his parents on an alternate week basis.[1]
[1] Paragraph 3, Reasons for Judgment delivered 28 February 2014.
On 15 August 2014 - not quite six months after the February 2014 Order was made - the father filed an Initiating Application by which he sought, on both an interim and final basis, to vary the February 2014 Order.[2] He proposed that an order for equal shared parental responsibility be made, together with orders for the child to spend unsupervised time with him on a gradually increasing basis: if made in the terms proposed, after the expiration of two months, the child would spend from 10.00 am Friday until 10.00 am Monday in week 1 and from 10.00 am Thursday until 10.00 am Saturday in week 2 with the father until he commences school and, thereafter, depending on where the father lived, for a five night block during school term and for half of the school holiday periods.
[2] s 65D(2) of the Act.
The father’s application for interim parenting orders, as outlined in the August 2014 Initiating Application, was dismissed by the Principal Registrar on 2 October 2014. Included in the Order made that day was an order that the father pay the mother’s costs of the Interim Application on a party/party basis.
On 31 December 2014 – about 87 days after the October 2014 Order was made - the father filed an Application in a Case by which he sought leave to apply for a review of the October 2014 Order.
On 7 January 2015, the mother filed an Application in a Case seeking that the father’s Initiating Application be dismissed.
The Applications requiring determination
I accept that neither the mother nor her solicitor were served with the December 2014 Application nor the affidavit material filed in support of it - nor a more recent affidavit upon which the father was permitted to rely at the hearing - until the morning of the hearing. Thus, the mother and her legal representative, who thought the Court was hearing the January 2015 Application, were taken by surprise.
Sensibly, the mother determined to proceed and to have the Court determine all outstanding applications, namely:
a)that by which she seeks[3] that the Court dispose of the August 2014 Initiating Application at a preliminary stage on the basis the father has not established there has been a sufficient change of circumstances so as to warrant the Court, acting in the child’s best interests, revisiting his parenting arrangements; and
b)the father’s application for review of the October 2014 Order.
[3] Application in a Case filed 7 January 2015.
The father’s Application for a review of the October 2014 Order is clearly well out of time.[4] Whether formulated as an application:
a)seeking leave to review out of time; or
b)for an extension of the time prescribed by the Rules as that within which an application for review must be made,
the father bears the onus of persuading the Court that such indulgence is appropriate.
[4] Rule 18.08 Family Law Rules 2004.
The mother opposes the Court granting the father leave to review the October 2014 Order or extending time pursuant to Rule 1.14 of the Family Law Rules 2004. I accept the submission that the father has failed to explain why the application for review was not filed within the time provided for in the Rules.
The most efficacious way to dispose of the outstanding applications is to consider the January 2015 Application first. If I am persuaded, as the mother submits I will be, that the father has not demonstrated a sufficient change of circumstances since the five day trial in February 2014 to warrant the Court, acting in the child’s best interests, again to consider the child’s parenting arrangements, the father’s application for leave to review and/or an extension of time within which to review the decision dismissing his application for interim parenting orders is likely to be shortly determined.
The ‘rule’ in Rice v Asplund[5]
[5] (1979) FLC 90-725.
In Rice and Asplund, Evatt CJ, with whom Pawley SJ and Fogarty J agreed, said:[6]
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 page 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.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.
[6] At 78,905 – 78,906.
In Poisat & Poisat[7] the Full Court said at [13]:
Whether or not the principle might be properly called a “binding rule” in the sense used by Mason and Deane JJ, for present purposes it can be said that the “rule in Rice and Asplund” is of long standing, has been consistently recognised and applied both in this court and at first instance, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.
[7] (2014) FLC 93-597.
I do not accept the submissions made by the father to the effect that the rule in Rice and Asplund does not apply in this case. The orders made by Bell J were clearly final parenting orders and the father seeks to vary them subsequently.
The rationales underlying the rule – which is merely a manifestation of the best interests principle[8] at whatever stage of proceedings it is applied[9] - have been outlined in earlier Full Court and first instance decisions. As long ago as in In the Marriage of McEnearey (1980) FLC 90 – 866, Nygh J said:[10]
The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
[8] See the discussion of Warnick J in SPS and PLS (2008) FLC 93 – 363.
[9] SPS and PLS, at 48;
[10] At 75, 499.
In Newling and Newling; Mole (Applicant)[11] Nygh J[12] said:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the court…
[11] (1987) FLC 91-856.
[12] With whom Barblett and Fogarty JJ agreed; referred to by the Full Court in Poisat & Poisat
In CDJ v VAJ[13], the majority remarked, albeit in the context of an appellant against an order changing children’s living arrangements seeking leave to tender further evidence (on appeal) pointing to changes in circumstances, outlook or apparent welfare, that:[14]
……….
…..So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
[13] (1998) 197 CLR 172.
[14] Ibid, at [118].
In G & G[15] Holden and Jerrard JJ commented that the emphasis is whether the Court is satisfied that a child’s best interests are being served by further litigation on a matter already decided upon and already the subject of Court orders, whether made by consent or after a contested hearing.
[15] [2000] FamCA 12.
Further authority to which I have had regard also relevantly establishes that:
a)a purpose of the rule is to discourage “endless litigation” whilst an end served by it is to avoid the substitution by a judge of his or her opinion of that which is in the best interests of a child for the opinion of another judge in circumstances where both opinions are based on the same or similar facts;[16]
[16] SPS and PLS, at 56 and 58.
b)the “best interests” issue arises because, given that there are so many changes in the lives of families, those changed circumstances which will permissibly allow re-litigation of a decision must be circumscribed otherwise there would, in some cases, exist the “spectre of endless litigation” which ends only when the child attains 18 years of age and the Court no longer has jurisdiction;[17]
[17] Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 at 48.
c)the application of the rule is closely connected with the nature and the degree of change sought to the earlier order;[18]
[18]SPS and PLS at 48; adopted in DL & W (2012) FLC 93-496 at [70].
d)the rule is founded on the idea that continuous litigation over a child is not generally in that child’s interests, it being usually hoped that the determination of a controversy concerning them by a Court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children;[19]
[19] Marsden & Winch at 49.
e)the Court must determine whether the party seeking the variation or discharge of an existing order has established there is a sufficient change of circumstance so as to justify embarking on a further hearing of the application; [20]
[20] Miller and Harrington at [81].
f)the Court is bound to take into account best interests considerations and to apply the legislative requirements;[21]
[21] Miller and Harrington (2008) FLC 93-383 at 72.
g)whether in a particular case a Court should be willing to embark upon another hearing concerning a child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case having regard to:
i)the past circumstances, including the reasons for the decision and the evidence upon which it was based;
ii)whether there is a likelihood of orders being varied in a significant way as a result of a new hearing;
iii)if there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child caused by the litigation itself as, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation;[22]
h)a two-step process should be followed when the rule is invoked in that there is a requirement:
i)for a prima facie case of changed circumstances to have been established; and
ii)a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing;[23]
i)the focus of the enquiry must be to determine whether there are changed circumstances sufficient to warrant an application being made with the consequence that issues previously considered by a Court will be re-litigated.
[22] Marsden & Winch at [50].
[23] Marsden & Winch at [58].
The January 2015 Application: that the rule be applied on a preliminary basis
In Poisat & Poisat[24] the Full Court said, at [18]:
In Miller and Harrington this court said:
72. It may be, however, that neither the expression “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
[24] (2014) FLC 93-597.
As the application of the rule in Rice and Asplund occurs within proceedings to which the provisions of Division 12 A of Part VII of the Act apply:
a)the Court hearing argument as to the application of the Rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act, included in which are the mandatory requirements:
i)to decide which of the issues in the proceedings require full investigation and which may be disposed of summarily;[25] and
ii)to deal with as many aspects of the matter as it can on a single occasion.[26]
b)the Court is empowered to make a finding of fact in relation to the proceedings, to determine a matter arising out of the proceedings and to make an order in relation to an issue arising out of the proceedings if it considers that it may assist in the determination of the proceedings;[27]
c)the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;[28] and
d)the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect and the parties to the proceedings against family violence.[29]
[25] s 69ZQ(1)(a) of the Act.
[26] s 69ZQ(1)(g) of the Act; Miller and Harrington (2008) FLC 93-383, at [74]
[27] s 69ZR of the Act.
[28] s 68ZN(3) of the Act.
[29] Miller and Harrington at 67
There being no principle that the rule should never be considered prior to a trial[30], I consider, in the exercise of my discretion,[31] that the rule in Rice & Asplund should be considered at a preliminary stage of the current proceedings.
[30]Caracini & Paglietta [2009] FamCAFC 188 at [18]; Miller & Harrington (2008) FLC 93-383; Poisat & Poisat (2014) FLC 93-597.
[31] Bennett and Bennett (1991) FLC 92 – 191 at 78,262.
I arrive at this conclusion because of a consideration of the child’s needs and the likely impact on him of further engagement in litigation so soon – relevantly – after the trial before Bell J.
In addition, whilst, in some cases, the qualitative question of whether a change is or is not sufficiently significant to justify a full further hearing of a parenting issue may be more difficult to answer in a preliminary hearing where there is resolution of only some disputed facts,[32] that is not the position here. Here, the mother does not dispute that the father attended courses or therapy. She simply points to the absence of evidence to establish that, through such participation, he has addressed the underlying issues identified by Bell J as the reasons for the orders His Honour made.
[32] Miller and Harrington at [82}.
Further, I have had regard to the following matters which I consider are encompassed within s 68ZN(3) of the Act:
a)the importance of there being an end to litigation so as to limit or minimise, in this jurisdiction, the “enormous psychological harm” parents are likely to inflict on each other and the child as a consequence of the ability to canvass again and again the question of his living and parenting arrangements;[33] and
b)that continuing and seemingly endless and inconclusive litigation – in the absence of sufficiently established changes circumstances - is usually emotionally damaging to parents and is likely to affect the child adversely in that it may well impair the mother’s ability (as the unchallenged primary care provider) to discharge her parenting of him, is highly likely to impose an emotional burden on the parents and is highly likely to undermine the stability in the mother’s household in a way that is highly unlikely to be beneficial to the child’s general well-being;[34] and
c)the important private interests of children, including the child, are unlikely, save in special circumstances, to be served by the uncertainty of prolonged and repetitive proceedings;[35] and that,
d)if addressed as a preliminary matter, the rule in Rice & Asplund is clearly more effective in discouraging “endless litigation” than if it is applied at the conclusion of a hearing.[36]
[33] McEnearney and McEnearney (1980) FLC 90-866 per Nygh J at 75,499
[34] Freeman and Freeman (1987) FLC 91-857 per Strauss J at 76,470-71
[35] DL & W (2012) FLC 93-496; [2012] FamCAFC 5 at [66].
[36] DL & W (2012) FLC 93-496; [2012] FamCAFC 5 at [69].
Having determined to apply the rule on a preliminary basis, the issue is whether the circumstances disclosed by the evidence reveal a change of circumstance of such significance that the child’s best interests require revisiting earlier parenting orders.[37]
[37] Poisat at [43].
I am cognisant that an application such as this may be determined by either consideration of the affidavit material relied by an applicant, cross-examination of some witnesses relied upon to determine how strong the case for a change of circumstances is or a combination of these approaches[38] and record that, in this case, no application was made to cross-examine the father or his witness. Further, the nature and extent of the necessary consideration of the relevant s 60CC considerations depends on the nature and breadth of the issues the subject of proceedings.[39]
[38]Poisat & Poisat at 39 and 40 referring to: Mason J in Lowe & Lowe (unreported, High Court of Australia, Mason, Dawson and Toohey JJ; 6 April 1990); Warnick J in SPS & PLS, approved in Marsden & Winch (2009) 42 Fam LR 1; Langmeil & Grange [2013] FamCAFC 31.
[39] SCVG & KLD (2014) FLC 93-582.
The mother’s legal representative submitted that, given the parties participated in a five day trial in February 2014, the father has failed to establish a significant change to the parties’ circumstances such as would justify a further consideration of the operative parenting orders. The father rejects such contention.
As I pointed out to the father during the course of the hearing, the determination of the competing applications before me is not the forum in which a critique of the findings made by Bell J, nor of the Reasons his Honour expressed for arriving at the same, is undertaken. However, it is – of course – necessary to have regard to the cases advanced by each parent before Bell J and the circumstances as found by him (as recounted in His Honour’s reasons for judgment) in order to determine whether the father has established a sufficient change of circumstances that further parenting litigation is in the child’s best interests.
The father’s case before Bell J involved assertions that:
a)the mother was mentally ill, suffered from schizophrenia and had, on occasion, been admitted to hospital for mental ill health;[40] and
b)the mother consumed alcohol to excess;[41] and
c)the mother was violent and physically abusive toward the child;[42] and
d)he had been supported by members of the medical profession in his view that injuries to the child have been caused by the mother;[43] and
e)the mother’s eight-year-old child from a previous relationship was a “psychopathic predator” who was abusive toward the child.[44]
[40] Paragraph 5, Reasons for Judgment delivered 28 February 2014.
[41] Paragraph 5, Reasons for Judgment delivered 28 February 2014.
[42] Paragraphs 5 and 21, Reasons for Judgment delivered 28 February 2014.
[43] Paragraph 21, Reasons for Judgment delivered 28 February 2014.
[44] Paragraph 6, Reasons for Judgment delivered 28 February 2014.
The mother’s case before Bell J included assertions that:
a)the father had an excessive - almost obsessive - attitude toward the child such that the child was taken to medical practitioners on virtually every occasion he spent unsupervised time with the father;[45] and
b)the father was obsessed with the child’s injuries and photographed him on virtually every occasion he (the child) spent unsupervised time with the father.[46]
[45] Paragraph 7, Reasons for Judgment delivered 28 February 2014.
[46] Paragraph 7, Reasons for Judgment delivered 28 February 2014.
The findings made by his Honour included the following:
a)the father was the subject of a Domestic Violence Order in respect of an assault against the mother;[47]
[47] Paragraph 18, Reasons for Judgment delivered 28 February 2014.
b)the father has been the subject of more than one Domestic Violence Order arising out of assaults by him upon women other than the mother;[48]
[48] Paragraph 18, Reasons for Judgment delivered 28 February 2014.
c)the father was obsessive in relation to the child and, at every opportunity, took him to a medical practitioner, a hospital or to the Independent Children’s Lawyer’s office;[49]
[49] Paragraph 22, Reasons for Judgment delivered 28 February 2014.
d)the father had, on his own admission, breached an order restraining him from taking the child to any medical practitioner and/or hospital unless in the case of emergency;[50]
[50] Paragraph 22, Reasons for Judgment delivered 28 February 2014.
e)the father was totally obsessive in relation to the child’s well-being;[51]
[51] Paragraph 58, Reasons for Judgment delivered 28 February 2014.
f)that on only one occasion did a medical practitioner indicate that the injuries suffered by the child – being two small finger type bruises – were not consistent with normal childhood injuries but likely brought about by a hard pressure being applied by hand to the child;[52]
[52] Paragraph 58, Reasons for Judgment delivered 28 February 2014.
g)that, without substantiation of the child sustaining injuries, the father’s actions for the child were considered to be progressing towards a trajectory of detrimental and cumulative harm and were likely to result in not only a high risk of the child experiencing issues with medical facilities/examinations as he ages, but his (the father’s) actions were also likely to diminish the relationship the child currently has with him;[53]
[53] Paragraph 59, Reasons for Judgment delivered 28 February 2014.
h)the father’s behaviour had escalated such that, given his Honour’s acceptance of the evidence of the author of the Family Report, the child’s best interests were only likely to be further compromised the longer he was exposed to unsupervised time with the father;[54]
[54] Paragraph 61, Reasons for Judgment delivered 28 February 2014.
i)the mother did not have mental problems of any substance and did not now drink to excess;[55]
[55] Paragraph 64, Reasons for Judgment delivered 28 February 2014.
j)the mother had not abused the child in any way which caused concern and was capable of looking after the child;[56]
[56] Paragraph 64, Reasons for Judgment delivered 28 February 2014.
k)the father was obsessive and his continued taking of the child to medical practitioners and hospitals was in no way benefiting the child;[57]
[57] Paragraph 66, Reasons for Judgment delivered 28 February 2014.
l)the father did not put the child’s welfare first;[58]
m)the father’s credit had been severely damaged by his admission to using false representations in an attempt to obtain a Justices Examination Order directed to the mother;[59]
n)the father showed signs of paranoia and narcissism and did not put the child’s interests before his own;[60]
o)the father had not realised that continuing to take photographs of the child – on 14 occasions in a period of approximately six months – and removing his clothing in front of the Contact Centre supervisor in no way advanced his welfare but, rather, tended to make the child concerned about his own physical being and affected him in his relationship with the mother and his half-brother;[61]
p)the father had a selfish and self-centred view and would do anything to blacken the mother’s name in relation to the child;[62]
q)the mother was “much more preferred” to look after the child than the father in any way whatsoever;[63]
r)the father’s conduct toward the child and his (the father’s) view of the mother was quite disturbing;[64]
s)The child’s time with the father needed to be supervised to protect him from the father continuing to take him to medical practitioners;[65]
t)the father had failed in any way to endeavour to encourage a relationship between the mother and the child, had not put the child’s welfare first and considered his own position more important than that of the child’s;[66] and
u)the father’s excessive, narcissistic and paranoia personality could in no way allow the child to develop in a proper manner and, generally, the father’s conduct was such that the child could come to psychological harm.[67]
[58] Paragraph 66, Reasons for Judgment delivered 28 February 2014.
[59] Paragraph 73, Reasons for Judgment delivered 28 February 2014.
[60] Paragraph 73, Reasons for Judgment delivered 28 February 2014.
[61] Paragraph 75, Reasons for Judgment delivered 28 February 2014.
[62] Paragraph 76, Reasons for Judgment delivered 28 February 2014.
[63] Paragraph 77, Reasons for Judgment delivered 28 February 2014.
[64] Paragraph 82, Reasons for Judgment delivered 28 February 2014.
[65] Paragraph 83, Reasons for Judgment delivered 28 February 2014.
[66] Paragraph 86, Reasons for Judgment delivered 28 February 2014.
[67] Paragraph 86, Reasons for Judgment delivered 28 February 2014.
The parties’ submissions
The father submits, in essence, that:
a)as he has now done those things Bell J identified in his Reasons as necessary, his application for different parenting orders is just him taking up the ‘invitation’ expressed by Bell J to do so; and
b)the contents and/or context of the Reasons delivered by Bell J means that he is not bound to satisfy the ‘rule’ espoused in Rice & Asplund; and
c)because of the sentiments expressed by Bell J in his Reasons, the Order made in February 2014 was not a ‘final’ order and does not attract the operation of the rule in Rice & Asplund; and
d)the ‘invitation’ extended to him by Bell J in his Honour’s Reasons means that there should be implied into the February 2014 Order a term extending to him liberty to apply to the Court for further parenting orders.
In advancing such propositions, the father relies specifically on paragraph 88 of Bell J’s Reasons:
I note that permanent supervision according to the Full Court, is not in the best interests of anybody. But in this case, the applicant has not endeavoured to comply with suggestions of experts to seek help. Should he carry out such suggestions and seek help, the onus is upon him to make an application for unsupervised contact with the child.
The father says the criticisms expressed by his Honour in this paragraph refer to his failure to comply with a previous order[68] - which required his attendance at a Triple P Parenting Program and a Post Separation Parenting Program - and his failure to follow recommendations made by Doctors P and F that he receive treatment.
[68] Made 8 May 2013.
The essence of the submission made on behalf of the mother is that:
a)the February 2014 Order does not require the father to complete the parenting or post separation parenting programs or engage in sessions with a psychologist; and
b)had the Court intended to provide the father with liberty to apply, such a term would have been included in the February 2014 Order; and
c)nothing in the material relied upon by the father establishes a significant or material change in circumstances in the time since the February 2014 Order was made.
I accept the submission outlined in paragraph 37(b) and reject that outlined in paragraph 34(d). Had Bell J intended to make an order affording the father liberty to apply in relation to further parenting orders, the February 2014 Order would have contained a term to that effect.
The evidence relied on by the father
The father’s evidence establishes that, since the February 2014 Order was made, he has:
a)completed a two hour Triple P Parenting Program - on 15 April 2014;[69] and
b)completed a Parenting Orders Program offered by D Organisation – on 14 April 2014;[70] and
c)started seeing Mr DD, a psychologist – on 7 August 2014.
[69] Father’s affidavit filed 15 August 2014, at paragraph 26.
[70] Father’s affidavit filed 15 August 2014, paragraph 27 .
Mr DD’s evidence[71] establishes the following:
a)the father had attended four appointments: on 31 July 2014, 7 August 2014, 21 August 2014 and 22 September 2014; and
b)the father had appointments booked for 20 October 2014 and 3 November 2014; and
c)the father self-referred to him, reported he was engaged in proceedings relating to the child and provided a copy of reports including that prepared by Dr F and a Family Report by Ms E.
[71] 2 October 2014 affidavit.
No specific mention is made of the report prepared by Dr P (a clinical psychologist and clinical neuropsychologist) or the Reasons for Judgment.
The father submits that, as he has done the very things Bell J identified as necessary and in respect of which he had been deficient at the trial in February 2014, he has established a sufficient change of circumstance to persuade the Court that it is in the child’s best interests to permit the August 2014 Initiating Application to be determined after another final hearing.
Whilst Mr DD expressed the opinion that the father does not pose a risk to the child, there is no evidence from him to suggest the father had addressed his underlying issues, identified and found by Bell J, as summarised in paragraph [33] above.
In fact, there is nothing to suggest Mr DD has seen a copy of his Honour’s Reasons for Judgment or a copy of Dr P’s report (a document commissioned by the father). The extent of his evidence – exclusive of the opinion that he does not think supervised ‘contact’ is required - is that the father had attended sessions with him on a “regular basis” and does not pose a risk to the child.
Mr DD provides no evidence to suggest that the father has, via engagement with him, addressed those issues identified by Dr P and included within the February 2013 report’s recommendations: that is, there is no evidence that the father has:
a)addressed his difficulties with conflict management; and/or
b)engaged in work around increased or improved communication skills when in conflict; and/or
c)addressed the difficulties identified in the manner in which he resolves conflict; and/or
d)been assisted to adjust to and cope with the situation involving the child.
Additionally, there is no evidence to suggest that participation in the courses and therapy with Mr DD has caused the father to gain insight into those of his behaviours toward the child against which – for the reasons expressed in his Honour’s Reasons for Judgment – the Orders made by Bell J were intended to guard and insulate the child.
Mere attendance at parenting or other courses does not, of itself, establish that the father has developed the insight into his behaviours toward the child or that he has recognised the need not to expose the child to the harm Bell J found exposure to his father’s actions caused and would be likely to cause the child or that that there has been a change to the father’s underlying attitude toward the child, his parenting of him, his attitude to the mother’s care of him (the child) or his (the father’s) interaction with the mother.
On the evidence proffered by the father, there is little – if any – likelihood of orders being varied in a significant way as a result of a new hearing. I consider that, without evidence establishing a change of attitude and approach by the father to parenting the child and/or the development of insight into the adverse effects on the child of exposure to his parenting, the position remains as it was at the time of the February 2014 trial.
I also consider that it is more likely than not that a renewal of litigation between his parents, undertaken so soon after the completion of a five day trial, is highly likely to cause the child significant disruption, even if only indirectly via the impact on his primary care provider of further involvement in such a process. Given my assessment of the lack of likelihood of significant variation to the existing order, such disruption is unlikely to be outweighed by any benefit.
The reality is that the father’s Initiating Application and Application in a Case seek to do far more than simply remove the imposition of supervision over his time with the child. Rather, he seeks orders which, if made, would see the child living in his care for five nights per fortnight within a two month time frame. As he did before Bell J, he seeks an order for equal shared parental responsibility.
As outlined earlier, there is no evidence to suggest the father has addressed his difficulties in managing conflict, especially when under stress. He clearly continues to assert that the child is at risk of physical harm in the mother’s care – in the same way he did before Bell J. None of the matters relied upon by Bell J as requiring the imposition of supervision to safeguard the child from harm appear to have disappeared: the father appears as convinced about harm to the child whilst in the mother’s care as he clearly was before Bell J. Such presentation suggests it is more likely than not that he will, in the future, behave toward the child in the same way as found and discussed by Bell J.
I am not persuaded that the circumstances outlined by the father in the material he relies upon are such:
a)as to require the Court, acting in the child’s best interests, to consider afresh how his “welfare” should best be served;
b)that the Court is left in no doubt that it is necessary to re-litigate the parenting issues – previously determined by Bell J in February 2014 – asserted to be in dispute between the parties;
c)that, if taken into account, there is a real likelihood that a change to the existing parenting order may follow;[72]
d)that the child’s best interests are likely to be served by further litigation on matters already decided upon and the subject of the existing parenting order.
[72] Per Collier J in King v Finneran (2001) FLC 93 – 079.
I am not persuaded that the evidence relied on by the father establishes that circumstances have changed so significantly as to justify the parties embarking on another hearing at which issues substantially the same as those previously ventilated before and considered by Bell J will be re-litigated.
I am not persuaded that the evidence the father relies upon establishes such a sufficient change to the circumstances considered by Bell J as to justify a conclusion that embarking on a fresh hearing in relation to parenting orders for the child is something in that child’s best interests. His best interests are better served by not being the subject of further litigation than by permitting the current application for parenting orders to continue.
Unavailability of the B Contact Centre
The B Contact Centre ceased operation at around the end of June 2014. The father’s material suggested that this event amounted to a matter justifying the Court revisiting the existing parenting orders. However, since early September 2014, the parties have been able to utilise an alternative Contact Centre at Suburb EE.
This means that the child continues to have the opportunity to spend time with the father in the manner provided for in the operative parenting order and to continue his relationship with him.
Application for Review of the October 2014 Order
Given the conclusions I have reached, as outlined above, I am not persuaded that the interests of justice[73] require the exercise of discretion in favour of extending time in relation to the application for a review of the October 2014 Order and I dismiss that application.
[73] Gallo v Dawson (1990) 93 ALR 479; Tormsen & Tormsen (1993) FLC 92-392.
Costs
The mother seeks that the father pay her costs of and incidental to her Application in a Case. The parties will have the opportunity to provide written submissions in relation to this issue and it will then be considered in Chambers.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 April 2015.
Associate:
Date: 24 April 2015
0
6
0