Daniel and Fulton
[2018] FamCA 39
•2 February 2018
FAMILY COURT OF AUSTRALIA
| DANIEL & FULTON | [2018] FamCA 39 |
| FAMILY LAW – CHILDREN – Where final parenting orders were made in October 2016 – Where both parties apply for those final orders to be discharged and different orders be made – Where the Independent Children’s Lawyer seeks that both applications be dismissed as the parameters of the dispute appear to be a replica of what was in dispute at the final hearing and should not be traversed again – Where the threshold test in Rice & Asplund (1979) FLC 90-725 needs to be satisfied before either parties’ application can be entertained – Where the father points to behaviours by the mother which emanate from her genuine belief that the child has been sexually abused and is at risk of future sexual abuse at the hands of the father – Where the rule in Rice & Asplund is a manifestation of the best interests principle and the fundamental question is whether or not it is in the child’s best interests to embark upon another final parenting hearing – Where nothing raised by either party demonstrates a significant change in the circumstances explored in the earlier final hearing that would lead to the conclusion that it was in the child’s best interests to embark upon another parenting hearing. |
| Family Law Act 1975 (Cth) |
| CDW v LVE [2015] WASCA 247 Marsden v Winch (2009) 42 Fam LR 1 Rice & Asplund (1979) FLC 90-725 SPS and PLS (2008) FLC 93-363 Walter & Walter [2016] FamCAFC 56 |
| APPLICANT: | Mr Daniel |
| RESPONDENT: | Ms Fulton |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Luke |
| FILE NUMBER: | WOC | 780 | of | 2017 |
| DATE DELIVERED: | 2 February 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 18 December 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Aboriginal Legal Service |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lukes Law |
Orders
The father’s Application filed 20 July 2017 is dismissed.
The mother’s Response filed 13 October 2017 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniel & Fulton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: WOC 780 of 2017
| Mr Daniel |
Applicant
And
| Ms Fulton |
Respondent
REASONS FOR JUDGMENT
A final hearing for parenting orders in relation to the parties’ child, B (“the child”), born in 2011 aged six was held between 7 March 2016 and 11 March 2016. There was an additional hearing on 12 October 2016 when the mother retained the child outside times provided in the interim parenting orders. On 26 October 2016 final parenting orders were made and Reasons (52 pages) were published (“the October 2016 Reasons”). Those orders provided inter alia:
1.1.The father have sole parental responsibility for major long term decisions about education, health and the Aboriginal cultural upbringing of the child on the condition that he consult with the mother in regard to any such issue before making a decision;
1.2.The mother have sole parental responsibility for major decisions about the religious upbringing of the child on the condition that she consult with the father in regard to any such issue before making a decision;
1.3.The child live with the father and spend increasing time with the mother such time to be monitored until the completion of term 1 in 2017.
From term 3 2017, pursuant to the orders made 26 October 2016, the child was to spend time with the mother each alternate weekend from after school Friday to the commencement of school on Monday.
On 20 July 2017 the father filed an Initiating Application seeking that the final orders made be discharged and orders be made for:
3.1.The father have sole parental responsibility for the child;
3.2.The child live with the father;
3.3.All contact between the child and the mother be supervised;
3.4.Telephone contact occur between the child and the mother between 5.30pm and 6pm on Tuesday and Thursday.
The mother also seeks that the final orders be discharged. In a Response filed 13 October 2017 she seeks that the final orders be discharged and orders be made for:
4.1.The mother have sole parental responsibility for the child;
4.2.The child live with the mother;
4.3.The child’s time with the father be supervised pending assessment;
4.4.The father not attend the mother’s home or approach the mother or the child with any other person in public;
4.5.Telephone contact occur between the father and the child each Tuesday and Friday at 4pm.
The Independent Children’s Lawyer sought orders that both parties’ applications be dismissed. She submits that the parameters of the current dispute appear to be a replica of what was disputed in the proceedings prior to final orders being made in October 2016. Neither parent appealed that decision and therefore the Independent Children’s Lawyer submits that the issues raised in those proceedings should not be traversed again.
Both parents have filed a volume of material in support of their applications for a new trial. The Independent Children’s Lawyer has provided a tender bundle of documents from subpoenaed material relevant to circumstances and events that have taken place since the first hearing. Based on that material it could be confidently estimated that a new hearing could take the same length or even longer than the first hearing.
RELEVANT LEGAL PRINCIPLES
Before either of the parties’ applications can be entertained, the threshold test in Rice & Asplund (1979) FLC 90-725 needs to be satisfied.
At [41] to [49], the Full Court in Marsden v Winch (2009) 42 Fam LR 1 said:
41.Warnick J in SPS v PLS (2008) 39 Fam LR 295; FLC 93-363; [2008] FamCAFC 16 (SPS) said at [1]:
[1] The “rule” in Rice … that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
42.The application of the rule was again described by Warnick J in [45] – [49] inclusive. Before turning to what Warnick J said of it, it is useful to recall that Rice involved an appeal from custody orders which reversed an order made 9 months beforehand. In her reasons for judgment (at Fam LR 572; FLC 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
… 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
43.Evatt CJ went on to say that the threshold question was not necessarily one for preliminary determination.
44.As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in In the Marriage of McEnearney (1980) FLC 90-866 at 75,499:
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. 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.
45. Warnick J opined in SPS (above) that (at [58]):
[58] Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This "evil" is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
46. Warnick J had earlier said (at [48]):
[48] In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".
(iv) Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits".
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) "Shorthand" statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
47.We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary: s 60CA of the Family Law Act 1975 (Cth); see also In the Marriage of Newling and Mole (1987) 11 Fam LR 974; (1987) FLC 91-856; In the Marriage of F and N (1987) 11 Fam LR 664; (1987) FLC 91-813; McEnearny (above). We agree with the conclusion reached by Warnick J (at [81]) that:
[81] … when the threshold question described in Rice is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
48.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49.However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children 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. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
(Footnotes omitted)
The Full Court recently considered the principles of Rice & Asplund in Walter & Walter [2016] FamCAFC 56. At paragraphs [48] to [51] Ainslie-Wallace J stated:
48.In Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725 Evatt CJ said at [78,905]:
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...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 ...
49.In discussing the application of those principles, the Full Court said in Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1:
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the 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. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
50.In Carriel & Lendrum (2015) FLC 93-640, the Full Court said at 80,173:
57. In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
51.Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
At paragraph [85] Murphy J referred to CDW v LVE [2015] WASCA 247 at [88]:
... Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned...
Justice Murphy then refers to comments made by Warnick J in SPS and PLS (2008) FLC 93-363:
96.Warnick J said in SPS that “[w]hat the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing”. Importantly, his Honour went on to say that “... [a]ccordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes”.
(Footnotes omitted)
At first blush it might seem that Warnick J’s comments adopted by Murphy J in relation to an application for small changes to parenting orders might be inconsistent with what the Full Court said in Marsden & Winch at [50(3)] (quoted above). The Full Court in [50(3)] however had in mind “significant re-litigation” about small changes whereas Warnick J was speaking about a situation where small alterations would not require anything other than a narrow inquiry.
Justice Murphy makes the following comments at paragraphs [110], [113] to [115]:
110.The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
…
113.It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3)The first principle is that 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.
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
114.In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “... even where the evidence demonstrates a material change since the previous order”.
115.Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
THE FATHER’S POSITION
The father sought to press his application. The father did not expressly indicate whether or not he supported the mother’s ability to make her application or supported the Independent Children’s Lawyer’s application that the mother should not be able to make her application. However, it is axiomatic that if the father’s application for a new hearing is successful, the mother’s new proposals would need to be considered.
The father asserts that there has been a material or significant change in circumstances pursuant to the principles set out in Rice & Asplund which justifies the final orders being discharged. He asserts that there are five circumstances which have arisen which demonstrate a significant change since the October 2016 orders were made.
15.1.The mother has continued to agitate allegations against the father which allegations have previously not been substantiated by child protection agencies and there was no unacceptable risk found to the child in the October 2016 Reasons;
15.2.The mother has continued to intrude on the privacy of the father and the child through the use of recording devices;
15.3.The mother has continued to arrange and take the child to be examined by medical practitioners;
15.4.The mother continues to denigrate the father in the hearing or presence of the child;
15.5.The mother continues to abuse alcohol.
The father asserts that the orders he seeks are necessary to protect the child from the psychological harm posed by the mother evidenced by those five circumstances.
Allegations of Sexual Abuse
The father says that the mother has continued to make allegations against him. The allegations of sexual abuse previously made by the mother are summarised at paragraphs [192]-[204] of the October 2016 Reasons.
The mother says she has not made any allegations to the police or the Department and has only spoken about her concerns to II Group, the family advocacy support service, the child’s former counsellor, her GP and psychologist.
On 7 November 2016 a report was made to the Department by a mandatory reporter that the mother had ongoing concerns about the level of care and of possible “parental alienation” occurring while the child was in the father’s care. The reporter stated that in September 2016 the mother’s partner heard the child make some distressing comments. He had recorded the conversation and the child was heard to say “my Daddy wants to kill you dead”.
On 7 December 2016 a report was made to the Department by a mandatory reporter that the mother had requested a welfare check be completed as she was concerned the father was substance affected and has a history of ice use and overuse of benzodiazepines. The caller stated that the child had previously said to his mother and the mother’s partner that his father made threats to kill them both. The mother gives evidence in her affidavit that she attended upon a social worker at a hospital on this date who she spoke to about her concerns regarding the father’s aggression following an incident where she says the father threatened to kill her partner.
On 20 December 2016 a report was made to the Department by a mandatory reporter which noted that the mother had reported that the child had stated that the father hit him in the abdomen. It states that the mother alleged that the child was previously reluctant to talk about inappropriate sexualised behaviour by the father “because he was fearful of retribution by the father” but “was happy to discuss with the caller today”. It was noted that the child had “a very tiny bruise on his right hip area which was very faint about size of less than 5 cents piece”. The child complained to the mandatory reporter about having tummy pain and when asked if anybody had hurt him in relation to his tummy, said yes. The child told the mandatory reporter that his father had hurt him and “motioned his stomach by repeatedly hitting it with his fist”. He also motioned to his right buttock and hip area. The child also said that his father “pulls my willy”. Those notes correlate with those produced by Health Care JJ which record a consultation with Dr KK on 20 December 2016 where the mother also stated that the child reported his father punching him in the abdomen and also reported (over weeks to months) of his father playing with his penis and “forcing the child to sit on toys (eg rubber ducks) onto anus”.
The father says the matters the child reported to Dr KK were similar to matters previously investigated by JIRT in 2015. He says that the mother purposefully took the child to attend upon the doctor to have the father investigated again. The mother says she took the child to attend upon this doctor after he repeatedly told her things which were distressing him and asked her to help him.
On 4 January 2017 a report was made to the Department that the child punches his penis and states “my dad does that”. It was noted that the child informed the mother that the father punches him in the stomach and he has pain when using the toilet. The report states that the child had told his psychologist, “my daddy told you he didn’t hurt me, but that’s a lie”. It was also reported to the Department that the child punches himself in the head with a wooden toy to manage difficult feelings. That report states that on 9 December 2016 it was reported that the child had been saying sexually inappropriate things such as “eat my willy”, “eat my bum, kiss my bum”.
On 27 June 2017 a report was made to the Department that the father had slammed the child’s penis in a toilet seat in October 2016 (an allegation made by the mother at the final hearing. See [300] of the October 2016 Reasons). It was also reported that the father had been telling the child “about how he is going to kill his mother and chop off her legs and head. The father also tells [the child] that his mother is dead and that she is a zombie and that he is going to kill [the child’s] step father. [The child] has been seen praying and saying ‘please god I can’t live like this anymore’ when he was going to return to his father’s house the next day and has also been singing ‘kill yourself until you die’. Furthermore [the child] has been self harming by poking himself in the eyes and the neck.” The Department concluded that there was insufficient information to substantiate that the child had been a victim of sexual abuse. The mother’s partner describes an incident occurring on 25 June 2017 in similar terms to that reported to the Department. He says that he contacted the Child Protection Line on 26 and 27 June 2017 to express his concerns about the child.
On 30 June 2017 the mother says she spoke with a support worker at the Family Advocacy Support Service at the Family Court in Q Town. She says she spoke with the support worker regarding her concerns about the child, the continual breaching of orders by the father and fears for her, her partner’s and the child’s safety. The support worker told the mother she would be making a report as a mandatory reporter. A report was made to the Department by a mandatory reporter on 30 June 2017 that the child had disclosed to his mother that his father had been biting his penis. That report also states that the child “has disclosed to the mother on a number of occasions sexual abuse by the father and the p/grand/mother.” The mother submitted that this report was made by the support worker who she attended on and gave historical information to. The mother also said that she told the support worker that there had been a court hearing and a finding of no unacceptable risk had been made. She denied telling the support worker that disclosures had recently been made regarding the paternal grandmother.
On 3 July 2017 JIRT interviewed the child about the allegations that the father was biting him on the penis. The child did not make any disclosures and denied all information in the report. It was noted that the mother was unhappy that he did not disclose sexual abuse and left the interview prematurely. There were concerns held by police and the Department that the mother may be coaching the child to disclose abuse in order for the current orders to be discharged. The allegations were unsubstantiated and JIRT advised the father that there were no grounds for any further investigation.
The mother says at [84] of her affidavit that on 17 September 2017 the child said to her “mummy I didn’t like it when those people came to our door”. The mother interpreted the child to be referring to JIRT coming to her house on 3 July and subsequently interviewing him. She says the child went on to say, “when they asked me questions, I told them a lie mummy, I said no because I was scared to tell them what daddy does”.
The mother says that on about 6 July 2017 the child started walking up to her and her partner, then pulling his pants down and going to cuddle them.
The father says that he contacted the FACS Child Protection Helpline following the child’s interview with JIRT to report his concerns about the child’s welfare and the mother’s mental health. On 6 July 2017 a report was made to the Department that the mother:
has a history of making false allegations against [the father] as well as coaching [the child] to make allegations because [the mother] is unhappy that [the father] has sole custody of [the child]. In addition, [the mother] reportedly denigrates all decisions made by [the father] for [the child], such as [the child’s] school, as well as denigrating [the father’s] family. When asked, the caller stated that the impact of [the mother’s] behaviour is that [the child] is ‘very anxious’ and has a fear of elevators, is very quiet, and has a lack of confidence.
The mother previously raised allegations that the father was inappropriately touching the child. The allegations contained in the Department’s records set out above are not substantially different to those canvassed at the final hearing (except perhaps the allegation that the father was biting the child’s penis which JIRT interviewed the child about).
The child has previously been interviewed by JIRT on 1 July 2015 and 1 December 2015. The Department failed to substantiate facts to support any new allegations against the father. At the final hearing, it was found that there was no unacceptable risk that the child had been or will be sexually interfered with by his father or paternal grandmother (at [205] of the October 2016 Reasons). The single expert at the final hearing was of the opinion that while the mother had not intentionally coached the child, “her anxiety, fear and concern for the child’s welfare may have impacted upon her judgment of the child’s behaviour and her anxiety could have become conditioned” (at [196] of the October 2016 Reasons).
The father says that it is now difficult for him to cooperate with the mother when he believes she is continuing to make false allegations against him.
The father submits that the mother’s continuing allegations of sexual abuse against him means that the child is continually exposed to investigations and intervention by child protection agencies which is harmful to the child. He says it appears the mother has again been encouraging or coaching the child to report things which aren’t true so that he is investigated.
Recording Devices
When the mother returned the child to the father on 10 July 2017 the father says that she came into his house for a couple of minutes during which time she asked to use the bathroom. On 11 July 2017 the father says he found a recording device in his bathroom under the toilet system. He believes this was planted by the mother. After he found the device, the father contacted the Department and made another report. He also contacted JIRT. He says this is the second time the mother has planted a recording device (the first occasion occurring between September and October 2013 described at [83] of the October 2016 Reasons).
The mother’s affidavit is littered with occasions where she says she has recorded her time with the child or recorded incidents involving the father and the child (see for example paragraphs [25], [49] and [69]).
The father says that the mother’s use of recording devices makes it difficult for him to have a working parental relationship with her and to trust her. The Independent Children’s Lawyer similarly submitted that the material in the tender bundle makes it obvious that there is no trust between the parties and the planting of electronic recording devices by the mother has been an extreme breach of the privacy of the father.
The father submits that the fact that the mother has continued to utilise recording devices since the final judgment presents one reason why there has been a significant change in circumstance as it was never expected that it would continue to occur.
At the original hearing the father did not seek any order to restrain the mother using recording devices. No such order was made. The October 2016 Reasons however set out the history of the mother’s behaviour in that regard in the past and the use to which the mother has attempted to put previous recordings that she has made (see [83] to [85]; [87]; [90]; [101]; [127]; [138]; [163] and [165] of the October 2016 Reasons). The father in this application seeks no order to restrain the mother from using recording devices.
Parental Responsibility
As already discussed, sole parental responsibility orders were made in the father’s favour in relation to decisions about education, health and the child’s Aboriginal culture on the condition that he consult with the mother before making a decision. Similarly, the mother was given sole parental responsibility for major decisions about the child’s religious upbringing on the condition that she consult with the father before making a decision.
The father points to actions by the mother which he says breach the order in his favour for parental responsibility. As discussed below, the mother alleges that the father has also breached these orders.
In addition to the general orders for parental responsibility order 10 made on 26 October 2016 specifically provides:
10. Except in the case of an emergency, the mother is not to take the child to a doctor unless she has the father’s written permission and only to a doctor or medical service authorised by the father.
The mother has taken the child to attend upon medical practitioners.
The father says he was not made aware by the mother that she was taking the child to attend upon an optometrist in August 2017 or a dentist in October 2017. The mother also took the child to see Dr KK at Health Care JJ in December 2016 (described above) and to Dr U for the treatment of sunburn (discussed below) without the father’s knowledge.
A record by the Department dated 20 December 2016 states that “the mother alluded that during FLC proceedings there was an appointed medical officer and mother was not allowed to bring [the child] to see her own doctor. The mother however states that since the FLC matter is now finalised there was no restriction on which doctor she could take him to.” This note is in relation to the mother taking the child to attend on Dr KK on 20 December 2016 (referred to above). The father submits that what the mother told Dr KK was a fabrication as the orders only allowed her to take the child to a doctor for something which was an emergency which this attendance was not.
The mother argues that while the final orders state she cannot take the child to a doctor, those orders do not prevent her from taking the child to an optometrist or dentist.
The notes produced by LL Healthcare indicate that on 31 August 2017 and 4 September 2017 the mother rang the centre requesting the child’s medical records and was advised that they could not give her the records due to the current orders. While the father complains about these actions by the mother, order 22 of the final orders states that “[t]he father shall advise the mother of the names and contact details of all of the child’s treating medical practitioners and specialists and authorise such medical practitioners to give the mother information about the child’s treatment.”
Denigration
Both parties are concerned that the other denigrates them and discusses these proceedings in front of the child in breach of orders 15 and 28 made 26 October 2016. Order 28 was varied by consent on 21 July 2017 to read “the mother and father shall be restrained from speaking about or making any post to social media concerning the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion.”
The father says that in further breach of that order, the mother has made posts on social media which have been denigrating, insulting and offensive about him. The mother says she regrets making those posts on social media but says she stands by the truth of them in relation to the father subjecting her to family violence. The mother previously made denigrating posts on social media which were discussed at the final hearing and which the mother apologised for (see paragraphs [162]-[165] of the October 2016 Reasons). The father submits that it was not contemplated that the mother would continue to make denigrating statements about the father on social media after final orders were made.
The father says after the child returns from spending time with his mother he makes derogatory statements about Aboriginal people. The mother denies this assertion.
Abuse of Alcohol
The mother’s history of alcohol abuse is set out in the October 2016 Reasons.
Order 16 of the final orders restrained the parents from consuming any alcohol while the child was in their care and for 24 hours prior to the child coming into their care.
The father submits that the subpoenaed material indicates that the mother’s problematic use and reliance on alcohol has resumed.
On 6 December 2016 notes produced by Suburb K Local Health District indicate that the mother was recorded to drink five standard alcoholic drinks per day and has three alcohol free days per week.
The mother was admitted to MM Hospital on 13 March 2017 for alcohol and opiate detoxification and was discharged against medical advice on 17 March 2017 due to “custody issues”. In the admission details for that hospital on 7 March 2017 it is noted that the mother was “[w]anting to come in for detox from alcohol and reduce the Panadeine Forte”. The notes on 13 March 2017 record the mother to drink “Alcohol 3 midi to 10 midi per day”. The notes continue to state on 14 March 2017 “heavy alcohol since Oct 16.”
On 30 June 2017 the mother attended upon Dr U. Those notes state that the mother saw Dr W for alcohol reduction and was prescribed Valium oxazepam but “only 3 days and then went back to [ethanol] use”. The father submits that despite the mother being admitted to hospital to reduce her alcohol intake, she has been unsuccessful in abstaining for any significant period of time.
The mother says that she undertook a detoxification program from Panadeine Forte and ceased Valium for a period of seven months up until the recent JIRT interview demonstrating her willingness and ability to abstain from prescription drugs.
The Independent Children’s Lawyer submitted that while the mother’s alcohol use is concerning, it does not appear that her suicidal behaviour as was previously evident, is currently an issue.
The father submits that the child is at risk of being exposed to the mother’s alcohol abuse which is compounded by the amounts of medication the mother consumes which reduces her parenting capacity and ability to make rational decisions.
The father says that the mother’s mental health has deteriorated since final orders were made in October 2016. He is concerned that the mother’s behaviour is a result of her deteriorating mental health and is further concerned about the impact of the mother’s behaviour on the child if her time with him is unsupervised.
The mother denies she has any problems with her mental health and relies upon evidence from Ms I which is discussed below.
THE MOTHER’S POSITION
The mother also submits that the matter should be reopened but for different reasons than those asserted by the father. She lists her concerns at paragraphs [90]-[104] of her affidavit filed 20 September 2017.
The mother is concerned that the father is allowing the child to access videos and play games which are violent and sexually inappropriate.
The mother says that there is “constant psychological abuse of the child, possibly physical abuse, and possible sexual abuse”. The mother also submits that the father is making vexatious allegations of sexual abuse against her and is likely recording those in front of the child. However, the mother did not point to any evidence to support this assertion except for asserting that based on things the child has said, the father has told the child that if the mother marries her partner he will die.
Similar to the father, the mother is concerned that the father and his family members denigrate her in front of the child. She says that the child has been “cut off” from members of the maternal family. The father denies discussing the proceedings or making negative comments about the mother in front of the child.
The mother says that the father lacks the ability to properly educate the child. She says that since the final hearing the child has commenced school which is a significant change from preschool. She says he needs assistance with his reading and homework and that the father is not coping with the shift to school and the child is not coping in his care. She points to the records of his absences from school but the records from the Department of Education indicate he was only absent from school two days in one semester. The mother says that the child changed schools during this period and the absences from the second school have not been included in that figure. The AMS records however record on 16 March 2017 that the child had four episodes in sick bay at school.
The mother points to what she says are the father’s breaches of the order for sole parental responsibility. The father concedes that he did not communicate with the mother nor seek her views before he relocated to JJ Town and changed the child’s school.
The mother asserts the father has removed her details from the child’s AMS medical records on several occasions and instructed doctors to give her no information. The father denies that he has removed the child’s name from any medical records and rather says that he has advised medical practitioners that the mother does not hold parental responsibility in relation to the child’s health and medical care. As earlier discussed, order 22 of the final orders requires the father to authorise medical practitioners to give the mother information about the child’s treatment.
The mother says she has had no opportunity to have any input into the child’s religious upbringing. She says she had no input into the child’s school enrolment form where the father did not list the mother anywhere and noted on the form that the child had no religion. The Independent Children’s Lawyer points out that this is more a breach of an order than demonstrating a need to change the orders. The father seeks that the final orders be changed so that he has sole parental responsibility for religion. The Independent Children’s Lawyer submits that if that order was made, the child may receive no religious education whereas the mother appears to take him to church.
The mother says that the father has failed to properly care for and maintain the child’s medical needs. The mother took the child to hospital for treatment of sunburn in January 2017 after the father did not take any action when she says the child was “seriously sunburnt” in his care. She says that she sent the father a text message requesting permission to take the child to a medical centre in accordance with the final orders but heard no response. She subsequently took the child to the medical centre as she considered that the burns fit the description of an emergency. She says that the child developed large blisters during the time that he was in her care. The mother later took the child to Q Town Hospital where she says she was advised the child had first degree burns and required treatment. This assertion seems inaccurate as the notes from Q Town Hospital on 9 January 2017 state that on examination the child did have blisters but it was “deemed superficial”.
The mother says the child was bitten by a dog on his finger on 23 October 2017 while in the father’s care and the father did not seek medical attention for the child. The mother took the child to a doctor who she says advised her that the wound should have been earlier cleaned by a doctor and deemed it necessary that he be placed on antibiotics. The mother says that she chose not to inform the father at that time.
The mother says the child is in need of vision therapy which the father has not addressed and he has not progressed the child’s counselling which was previously recommended by JIRT. She also more generally asserts that he gives the child inappropriate medication, does not provide her with accurate information as to the child’s medication and does not follow up with medical appointments.
The mother raised similar concerns at the final hearing as to the way in which the father attends to the child’s medical needs.
The mother says that since the final hearing the father’s aggression towards her and her partner has increased with him threatening to kill her partner in front of the child on 7 December 2017 and stalking her (referring to a text message suggesting that he was watching the mother drop the child off at school and the mother observing the father’s car outside a hospital where the mother was admitted).
The mother says the father has a “violent history and dishonest nature”.
The mother alleges that the child is exposed to “drug culture and violence” among the father’s friends and family.
The mother is concerned about the father’s long history of substance abuse including large amounts of various sedatives and illicit drug consumption. She says he also has a long history of mental illness and takes medication for depression and anxiety. She submits that the AMS records reference that the father is also drinking. However, a note dated 7 April 2016 indicates that the father describes being abstinent from drugs and alcohol for nine years. On 25 November 2016 the notes state that he had not had alcohol for one year.
The mother raised concerns about the father’s drug use at the final hearing but there was no finding that the father had misused prescription drugs.
Since the final hearing the mother says the father has commenced medication for Hepatitis C. She says his health is significantly impaired and he does not maintain the treatment for Hepatitis C. The mother says this diagnosis affects his ability to care for the child and there is a risk that he will infect the child. It was known during the final hearing that a blood test undertaken by the father between July and August 1996 revealed the father had Hepatitis C (see paragraph [44] of the October 2016 Reasons). No finding was made in the October 2016 Reasons that this posed a risk to the child.
The mother says, “[t]he applicant’s PTSD and the fact that this has never been investigated by the court, or the Independent Children's Lawyer even though there were medical records stating referrals were written to a specialist regarding these matters. Those letters were never obtained or followed up by the Independent Children's Lawyer and the specialist was never subpoenaed.” The mother did not point to any evidence in support of this assertion.
The mother says the father constantly disturbs the child’s routines and changes plans organised with the mother.
The mother also relies upon, as a significantly changed circumstance, evidence in respect of her current mental status. In the October 2016 Reasons I concluded that the mother had a diagnosis of Borderline Personality Disorder and that her history of mental health difficulties may pose a risk to the child in her care. The mother has obtained a letter from Ms I dated 13 October 2017 which states that she has provided psychological services to the mother in a medium-long term therapeutic relationship which concluded with a consolidated session on 3 April 2017. She states the mother does not meet the clinical threshold for any mental health diagnosis outlined in the DSM-5. This is inconsistent with the diagnosis by Dr BB, the single expert, at the final hearing of personality disorder with borderline and dependent traits. However, Ms I’s evidence in relation to the mother’s mental status at the final hearing was also somewhat inconsistent with that of the single expert in that she did not believe that the “normal behaviours associated with Borderline Personality Disorder were being exhibited by the mother in any major way at the current time” (paragraph [161]). At the final hearing I accepted Dr BB’s opinion.
The mother submits that she is now in a stable relationship with her partner, Mr O, and they are engaged to be married. She says that relationship will role model a loving relationship and family life to the child. In the October 2016 Reasons I stated at [186] that:
186.Within a very short period of time, [Mr O] has formed very negative views about the father based on what the mother has told him and on documents that have been made available to him to read. I am unable to predict the role and influence [Mr O] may play in the future of the parental relationship between the mother and the father, but there are signs he may not be a positive influence on the mother’s ability to construct any type of future parenting relationship with the father.
The mother has filed an affidavit by Mr O. Annexure E to Mr O’s affidavit is a letter from his psychiatrist, Dr PP dated 26 July 2017. Dr PP has been seeing Mr O since 2000 and treating for him for Bipolar 1 Disorder. Mr O was hospitalised in February 2008. Dr PP opines that Mr O regularly takes lithium and is stable on his medication with extremely well controlled Bipolar Disorder. Mr O sees himself as the child’s step-father. Mr O expresses confidence in the mother’s mental state but says he has cause for concern about the father’s mental state. Mr O accompanied the mother and the child to the JIRT interview and was critical about the environment in which the interview was conducted by JIRT. Mr O’s affidavit makes it clear that he continues to have a negative view about the father’s behaviour and parenting capacity.
The mother says that she is in a significantly better position than she was at the final hearing to care for the child and provide for his needs.
CONCLUSION
As emphasised above in Marsden & Winch, the rule in Rice & Asplund is a manifestation of the best interests principle.
Neither parent appealed the final orders made on 26 October 2016.
The fundamental question is whether or not it is in the child’s best interests to embark upon another final parenting hearing. As indicated the first parenting hearing took five days. Based on the tender bundle in this hearing it is possible that a new full final hearing could take the same length of time or even longer. The potential risks to the child as a result of that process of litigation need to be weighed against the possible advantages that might flow from it by way of the court being able to restructure orders that would be likely to better serve the child’s best interests than the orders that were put in place in October 2016.
On the father’s case, the most powerful argument relates to the effect on the child of the mother’s behaviours which emanate from her ongoing genuine belief that the child has been sexually abused and is at risk of future sexual abuse at the hands of his father. Those behaviours relate to retelling prior discredited allegations to persons in authority associated with the child and the mother’s use of recording devices. The father submits that it was not contemplated that the mother’s behaviour, such as the allegations and recording, would continue after final orders were made.
At paragraph [213] of the October 2016 Reasons I stated that “[i]f the mother continues to maintain those beliefs and in particular if she conveys those beliefs to the child as he gets older that will be psychologically and emotionally damaging to the child.” Similarly, the single expert had opined that damage could be caused to the child if the mother’s belief persisted when the child was seven or eight years of age. The child will turn seven in May 2018.
In an assessment by the Department dated 15 August 2017 it is noted that:
Both parents have been spoken to about the need to protect [the child] from their issues and not to discuss their differences around the parenting and care of the child with him present.
Mother’s capacity to place [the child’s] need for stability above her own issues is questionable and father may need to return matter to Family Court if the current order proves to create problems for [the child].
An earlier assessment by the Department on 12 July 2017 states:
[The child] has been exposed to a long drawn out and contentious family court dispute and repeated allegations that he has been sexually abused by n/father and other paternal family members, including an 83 year old grandmother (not substantiated).
Mother does not appear to accept that [the child] has not been abused by his father and goes to extreme lengths to support her claims including a three hour recording of [the child] in an attempt to get a disclosure – placing listening devices in [the child’s] bag when he goes to his father’s and recently placing a listening device in the bathroom of the home [the child] shares with his father. Mother has a diagnosed borderline personality disorder and it remains unknown just what lengths she would go to prove [the child] has been harmed.
This places [the child] at some risk of psychological harm by the mother – [the child] is in need of generalist counselling to address the changes in his life and the disputes between his parents.
Ms HH, psychologist at the QQ Program, has met with the child and his family 18 times since 11 April 2016. In a letter dated 23 March 2017 she states:
[The child] has experienced substantial change in his home life over the past year. There is, at present, a high level of conflict between his parents. The child appears to respond to this by trying to ‘keep the peace’ and internalising his concerns.
…
At this stage I have recommended the focus now shift to creating a more stable pattern of communication between [the mother] and [the father] (most likely utilising their [II Group] workers), as this systemic change would likely assist [the child] in letting go of some of his ‘caretaker’ role and help him feel more comfortable expressing his own needs
An evaluation by II Group dated 25 July 2016 states:
This worker acknowledges limited capacity of short-term family intervention work in light of ongoing adversarial parental conflict and complex family court issues and likelihood of matter returning to court. This worker has concerns for [the child’s] needs being compromised amongst this continuing conflict in spite of work done with [the mother] to promote consistency between homes and level of some kind of normality for [the child].
On 16 March 2017 a GP at AMS in Q Town contacted Ms HH, psychologist. The AMS notes record that “the child tends to internalise his feeling”; “very strong bond with both parents”; “feels that this presentation may well be psychosomatic”; “stresses the importance of mum and dad communicating effectively”; “she’s reluctant to resume therapy so early – feels Mum and Dad communicating will be far more effective”.
There is some evidence from the mother that in her view the child “has psychological and behavioural issues, including serious problems around sharing food. He sometimes engages in self-harm, punching himself, pushing his fingers into his eyes and throat, choking himself etc. He has some anger management issues, at times responding to minor things with aggression, throwing punches and spitting or threatening to kill himself or other people including myself and [Mr O]. He often talks about death and dying or killing people or smashing things. I believe that [the child] needs to attend a psychologist or counsellor to work through whatever issues are bothering him.” The mother had previously raised these matters in the context of the mother making an oral application on 12 October 2016 to reopen the final hearing to lead further evidence. I dismissed that application. The reasons for doing so were set out at [285] to [313] of the October 2016 Reasons. That evidence was consistent with evidence that had been presented during the five days of the final hearing and I determined that that further evidence was not so material that the child’s best interests would require that it be admitted in circumstances where it would further delay the finalisation of the proceedings. I concluded that it was in the child’s best interests to move as soon as possible to make final orders.
The child has been directly affected by the mother’s continuing reporting of her genuine beliefs in that JIRT reinterviewed the child on 3 July 2017. Even on the mother’s evidence, the child was stressed by what happened on this day. Based upon more recent Departmental notes, I infer that it is likely that unless there are new, serious and credible future allegations made against the father, the Department will deal with any further complaint by the mother or by anybody reporting what the mother has said without directly involving the child in the consideration of those allegations.
The child’s current difficulties do not emanate only from the mother’s ongoing behaviour. More fundamentally, the child’s difficulties arise from the unresolved parental conflict that remains high. The material in the tender bundle and the parties’ affidavits demonstrates difficulties in the parenting relationship. Both parties complain about telephone calls and negotiations in changing the times that they spend with the child.
The father’s proposal on a final basis is to change the child’s time with his mother to be supervised only. I infer that the father thinks that that will lower the level of current parental conflict. The father does not explain how such an order would be sustainable in the long term. As with the October 2016 orders, any restrictive order of that nature has to be balanced against the potential it would have to do damage to the child’s relationship with his mother.
In relation to the mother’s mental status, although Ms I has confirmed her original opinion, based upon subsequent sessions with the mother, a possible new finding in relation to the mother’s medical diagnosis is not a change which would be significant enough to warrant a reopening of the case particularly given the continuation of the behaviours of the mother in maintaining her belief that the child has been sexually abused by his father and her intrusive use of recording devices.
The father’s complaints about the mother’s use of recording devices are set out above. If it was not already obvious to the mother from what I have previously said, future repetition of the mother’s behaviour of attempting to obtain secret recordings of the child whilst he is with his father or of the child speaking about his time with his father for possible forensic purposes can only be behaviour by the mother which negatively impacts upon any working parental relationship that she might develop in the future with the father. What the father alleges happened in July 2017 is behaviour by the mother which is consistent with previous findings and is not in itself a significant change in the mother’s prior behaviour.
In relation to the father’s allegations about the mother’s alcohol use, the child was not spending time with the mother over weekends until term one in 2017. The records indicate that the mother has three alcohol free days per week so there is no evidence to support a conclusion that she has been consuming alcohol in contravention of the final orders. The orders for the child’s time with his mother require the father to deliver the child to the mother at the commencement of time and the mother to return the child to the father at the conclusion of time. The father has led no evidence that the mother has appeared to be intoxicated at any of the changeover events that have taken place since the orders have been made.
Nothing raised by the father, taken individually or as a whole, demonstrates a significant change in the circumstances explored at the 2016 hearing that would lead me to conclude that it was in the child’s best interests for the parents to embark upon another full scale parenting hearing.
In respect of the circumstances raised by the mother, as set out above:
103.1.The Department have reinvestigated the more serious allegations made by her or by those mandatory reporters to whom she has spoken and have not substantiated them;
103.2.The allegations in relation to the child’s school attendance and in relation to his sunburn were not substantiated by third party records to the level of seriousness asserted by the mother;
103.3.The opinion of the mother’s treating therapist is not new in the sense that it confirms an earlier opinion;
103.4.In relation to the mother’s allegations of breaches by the father of orders in relation to parental responsibility, access to medical records and non-denigration, those allegations are more appropriately dealt with by an application aimed at ensuring compliance with orders as opposed to the application that the mother has made;
103.5.Evidence about the stability of the mother’s new relationship is not evidence of a significant change that would warrant allowing a new hearing.
As with the father’s case, nothing raised by the mother taken individually or as a whole, demonstrates a significant change in the circumstances explored at the 2016 hearing that would lead me to conclude that it is in the child’s best interests to embark upon another full scale parenting hearing.
In relation to both parties complaints about breaches of parental responsibility orders and non-denigration orders, the orders that have been made in that regard are not said to be unclear. Both parties should read them again and get some legal advice as to what their responsibilities are in respect to those orders. Fine tuning in relation to orders that are alleged to be breached can be affected more appropriately in the context of any hearing relating to alleged future contravention of the orders.
The Independent Children’s Lawyer submitted that there is nothing in the material which suggests that the child’s time with either parent should be supervised nor that the child should be placed in the mother’s full time care. She says it is clear both parents are concerned about the child’s welfare and wellbeing.
The Independent Children’s Lawyer submitted that while the father may have been lax in some respects, certainly in regard to the sunburn incident which appears to have warranted medical attention and needed treatment, by and large the parents are communicating and no court order would be able to change the barriers they sometimes face when dealing with each other.
The Independent Children’s Lawyer submits that a reopening of the proceedings would not be in the child’s best interests and will only result in further conflict between the parties. She says the October 2016 orders still remain appropriate.
I ultimately accept that submission. I accept the child has a very strong bond with both his parents. At paragraph [217] of the October 2016 Reasons it was observed that the child had a stronger attachment to his mother but had a healthy and secure attachment to his father. It is not in the child’s best interests to embark upon a new hearing based upon the father’s allegations about the mother’s behaviours since the orders were made arising from her beliefs about the father being a physical, emotional and sexual risk to the child nor from any matter raised by the mother.
On balance, I conclude having read all of the voluminous material that has been collated that it is unlikely that a new hearing would produce a set of orders that would be significantly better for the child to offset the damage that would be caused to the child as a result of the new litigation. That damage would come about as a result of the child being involving in reassessment processes and secondly the parents being on a full time war footing for the amount of time it would take to get the matter reheard.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 February 2018.
Associate:
Date: 2.2.2018
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