DAUBNEY & JANZEN (No.2)

[2018] FCCA 3335

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAUBNEY & JANZEN (No.2) [2018] FCCA 3335

Catchwords:
FAMILY LAW – Rice v Asplund argument – application to re-open parenting proceedings.

Legislation:

Family Law Act 1975 (Cth), s.117(2)

Cases cited:

Marsden & Winch [2013] FamCAFC 177

Applicant: MS DAUBNEY

Respondent: MR JANZEN

File Number: ROC 635 of 2013

Judgment of: Judge Henderson

Hearing date: 24 October 2018

Date of Last Submission: 24 October 2018

Delivered at: Rockhampton

Delivered on: 24 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Arnold

Solicitors for the Applicant: KJB Law

Counsel for the Respondent: Mr Bunning

Solicitors for the Respondent: Phelan Family Law

ORDERS

1. That the applications filed 16 January 2018 be dismissed.

2. That the application in a case filed 4 September 2018 be dismissed.

3. That the mother pay the father's costs in the sum of twelve thousand and twenty two dollars ($12,022) within twelve (12) months of today’s date.

IT IS NOTED:

1. That if the mother files another application it is to be listed before His Honour Judge Tonkin in Canberra, if possible.

IT IS NOTED that publication of this judgment under the pseudonym Daubney & Janzen (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

ROC 635 of 2013

MS DAUBNEY

Applicant

And

MR JANZEN

Respondent

REASONS FOR JUDGMENT

1. This is an application in Daubney and Janzen by a mother to reopen the parenting proceedings finalised by consent in May 2017, I think on 22 May 2017.

2. The application is in respect of the children, [X], born 2006 and [Y], born 2008. The children live with their father in Town A. Their mother lives in Canberra.

3. Mr Arnold of Counsel represented the mother who was on the telephone and Mr Bunning of Counsel, the father.

4. The maternal grandmother also seeks leave to intervene in these proceedings if the mother is successful and she and her lawyer, Ms Black, appeared by telephone,

5. The evidence that I read for the parties is as follows:

   a)The mother:

   i)Initiating application filed in Canberra on 16 January 2018;

   ii)Affidavit and Notice of Risk filed the same date; and

   iii)Affidavit filed 2 February 2018.

6. I read the decision of her Honour Judge Tonkin delivered on 2 March 2018.

   a)For the father:

   i)His Response filed 1 February 2018; and

   ii)Notice of Risk and Affidavit filed in Canberra on the same date.

   b)Exhibits:

   i)Father:

   (1)Exhibit 1, a decision of the Full Court in Marsden & Winch[1].

   (2)Exhibit 2, an application completed by the mother when the children were spending holidays with her in January of this year for enrolment in a school in Canberra which document excluded the father’s name from the details and enrolled [X], under her surname of Daubney. This last step is prohibited by the current consent orders.

   ii)For the mother:

   (1)Exhibit 1, the Queensland police records in relation to an interview with [X] and the father arising out of the allegations made by [X] to his mother in January which she reported to the Canberra Police and which was continued by the Queensland police on the children being returned to the father in Town A. [X] was interviewed by Canberra and Queensland police.

   [1] Marsden & Winch [2013] FamCAFC 177.

7. I read Judge Tonkin’s decision and the most helpful and fulsome case outlines that each of the parties’ representatives provided to the Court.

8. The relevant chronology was dealt with by Judge Tonkin in January 2018, when she heard he father’s application that the children return to Town A with him and the mother’s application they remain with her in Canberra. This commences at paragraph 16. I will repeat that chronology and add what has happened since that time.

9. The parties commenced a relationship in 2007. That is neither here nor there. They married on 2009 and separated on 6 October 2013.

10. The father pleaded guilty to an assault in October 2013, an AVO had been taken out for a period of 13 months.

11. In December 2013 the mother and the children moved to Town B and the father filed a recovery order.

12. Interim orders were made in February 2014 allowing the mother to remain in Town B and a family report was prepared by a Dr S. Dr S has prepared two family reports on 17 October 2014 and in 2017.

13. The parties entered into final consent orders on 4 February 2014 which provided that the children would live with their father in Town A.

14. Once and if the mother relocated to Town A, there would be an equal time arrangement.

15. The parents of each commenced new relationships; the father with Ms M and they are now married, and the mother with Mr J.

16. In September 2015, the mother returned to Town A and the equal time, week-about arrangement commenced.

17. [X] is not the biological child of the respondent father and although this is irrelevant to this application, it is a highly relevant matter for the mother.

18. It appears [X] met his biological father, a gentleman named Mr D in about 2015.

19. The mother has a child with Mr J, [A] now aged two

20. The father and Ms M commenced living together in 2016.

21. There have been many changes for the children in the 2015/2016 years. A variation in their living arrangements, from living with their mother, to living with their father, then week, various new people entering their lives, children being born, and new families being established.

22. There was an AVO application brought in July by the mother but it was dismissed in 2016.

23. On 18 July 2016, the mother advised the father she was moving to Canberra with [X] and she just took him from Town A to Canberra on 22 July 2016.

24. [X] did not see his dad until about 13 December 2016, which was a long period of time, given he has, effectively, always lived with his dad.

25. The father has filed two recovery order applications prior to this and this is his third such application.

26. The first was in December 2013 when the mother went to a place called Town C near Town B, and the second one was in July 2016, when the mother just removed [X] to Canberra. The children were returned to his care on each occasion.

27. The first set of orders made by consent on 4 February 2015 for an equal time live with arrangement in Town A arose from the first recovery order.

28. The second recovery order was filed on 20 September 2016 when the mother removed [X] to Canberra. The child was ordered to be returned to Town A to live with his father.

29. A second set of consent orders were entered into on 22 May 2017, whereby the children live in Town A with their father and spend time with their mother in Canberra.

30. The third recovery application was filed by the father in February 2018 in response to the mother’s application filed 16 January 2018 that the children live with her in Canberra.

31. The basis of the mother’s application were the concerning allegations made by [X] of the father’s harsh physical punishment of him in about November 2017. The children were spending, at that time, holiday time with their mum for the January school holidays. There is nothing other than that the father has always facilitated the children spending time with their mother.

32. What the mother says her son told her starts at paragraph 61 of her affidavit and she says this, paragraph 59:

    I was casually speaking with the children about how things were going in Town A and was under the opinion the children were as happy as they could be under the circumstances. [X] looked at me with his scared face, eyes bulging and said, “No, something has happened”.

33. This this was on the evening of 9 January 2018 and the children came into her care on 4 January:

    He said [B] and [C], his nephew, were collected from school by the father, when the father began to yell and speak in a loud voice in the car about having secrets. When they arrived home [B] told her dad that [X] was planning to remain living in Canberra with his mother at the conclusion of the January school holidays. The father told [B] and [C] to go outside –

    The father then struck [X] with his belt three times on his right leg causing a mark. [X] said he cried. He felt scared. He picked [X] up by his neck in one hand, threw him on to a couch, swearing at him and calling him an “ungrateful prick”. He said he noticed his lip was bleeding and he was crying and felt scared at the time.

34. The mother reports these allegations, which are very concerning, to the Canberra police and the child, effectively, repeated similar allegations to the Canberra police. Upon the child’s return to Queensland, there was a further investigation by Queensland police, and after interviewing the child and the father, they determined no criminal proceedings would be forthcoming. That, of course, is not the end of the matter for the family law system, namely the fact that police do not take criminal proceedings.

35. The father admits he hit the child with a belt in his affidavit and his story, or his version of events, begins at paragraph 42 of his affidavit. He says this:

    [B] likes to write notes in journals. She has been doing it for a long time. In about November, my partner was cleaning up the house and showed me something. [B] had written a note, “Dear diary, my brother and mum are planning for my brother to move to Canberra and I can’t tell my dad but I want to tell him my mother doesn’t like living with my dad. Peace out.”

36. The children see a counsellor which the father arranges and he instantly arranged for the children to see their counsellor, a Mr P. He picked up the children from school. He denies yelling or talking loudly in the car, they had some afternoon tea. They were sitting in the kitchen on stools. [C] had gone off to play in [X]’s room and the father said he asked the children about the note. That was the first mistake he made. He should not have done it. It was not for them to work this issue out. It was for him and the mother to work out.

37. He was standing and the children were sitting, and the father talked about telling the truth to the children. That was his second mistake. Parents do not raise “truth” for children living in such a conflicted environment. [X], understandably, feeling quite pressured I expect at this time, said there was nothing to tell and the father said, “You need to tell me the truth. We’ve talked about safety and secrets before.” [Y] then said to her brother, “Stop lying.”

38. The father sent [Y] outside because this did not have much to do with her and the father told [X] he would get a smack if he did not tell the truth:

    I smacked him on the bottom, on the outside of his school uniform. I said, “Let’s sit up at the table, write a list of fun things you like to do at mum and dads.”

39. List writing is something that the child psychologist engages in with the children. [X] said to his dad:

    All right. Mum has been in my ear about saying I want to stay with her and about not coming back and not living here with you.

40. The father spoke to the child about that issue and said he had made an appointment for [X] to speak to Mr P. The child was not crying, he looked happy and the father believed that event was over.

41. However, the father struck the child with a belt and the father’s reaction to the diary notes was unacceptable. It must be apparent to him, as it is apparent to the Court, that the mother does not accept her decision, made twice now, for the children to remain living with their father in Town A and this is pressure on the child.

42. Despite the fact this was done by consent and she agreed the mother, no doubt, presses the children on each occasion she sees them about these issues, particularly [X]. The mother has run off with him once before and separated he and [Y], who are siblings and have a close relationship. That caused the children significant stress and it is noted at paragraph 61 of Judge Tonkin’s decision:

    One thing is patently clear from the evidence. The children have been exposed to high conflict with parents warring against each other for years.

43. According to the Family Consultant, the children know their parents are not friends. [Y] said, “They do not talk. Could not even be in the same room together.” She said it was difficult for her. The parents would say the same things but say the other parent was lying. She wanted her family to get along, to be able to be in the same room, “Can we just move on from this. I want it to stop.” These are [Y]’s words.

44. [X] said his mother told him she had gone to Canberra to get away from his dad. She was in a relationship, they had been separated for a long time. That he was sad to go to Canberra. He missed his friends. [Y] had been sad and lonely. His parents fought a lot. He raised concerns his mother drank too much and said stuff about him that he did not like. Mr D drank a lot of beer. The father did not drink much.

45. The Court is concerned that each of the parents may continue to exert pressure on the children to achieve his or her end and the mother to a great extent than the father. The mother he has not accepted the decisions she voluntarily entered into.

46. The father would have known this so why punish the child? You raise it with the mother, in an email, in a letter because it is clear to me, on this evidence, the mother takes a non-child focused and self-focused position at times and that is reported on by the Family Consultant in the two reports she prepared. That the mother is unaware of the impact of her behaviours upon the children and the importance of their relationship with their father and the father’s family. I accept what [X] said that “Mum has been in my ear”, I’m sure she had been because she wants her son to live with her, understandable though that may be she has agreed twice now that he lives with his father.

47. The father clearly acted out of frustration and he fell into a trap, perhaps set up by the mother, I do not know, and lashing out at his blameless child is unacceptable. Judge Tonkin said so. I said so and I am sure the father will never do that again.

48. The mother submits the father’s actions are of grave concern and warrant a reopening due to the violence perpetrated on [X]. Although I cannot assess the level of this violence, it is admitted, it occurred, it is unacceptable and the father tells me it was unacceptable and he regrets it.

49. Interestingly, as an aside, the mother’s affidavits in these proceedings is replete with incidents of the father’s violence towards her in their relationship, and to [X], not [Y]. Thus at one level what is the change, I might say cynically, given that the mother entered into consent orders twice with this fulsome history she repeats again and again.

50. However, if the Court formed the view that this incident in November was a pattern of behaviour and the usual way the father dealt with the children, particularly [X], then this case would be reopened as the child would clearly be at risk and that would be unacceptable and this would be a change in circumstances.

51. I do not so find in this matter. This was a one-off isolated incident which the father regrets. He is contrite, has shown some insight and understanding of. The mother has shown no responsibility or acceptance that she too contributed to this incident by her non-acceptance of the agreement she made on two occasions, and most latterly in May 2017 that her son live with his father. Such is her desire to have the children, or [X] in particular, live with her that she will use her children to further those desires is clear to me.

52. At paragraphs 74 and 76 of Judge Tonkin’s judgment, she refers to the family report prepared by the Family Consultant in the last proceedings. Paragraph 92:

    The mother appears to lack any real awareness of the children’s needs. For example, despite this being identified as a concern in the previous family report, she has continued to emphasise the differences in [X] and [Y]’s biological relationship with the father, without considering the emotional consequence for the children. Both children have had to cope with the added psychological burden to their parents’ separation, of having [X]’s relationship with the man acknowledged previously to be his father questioned and undermined.

53. That is very self-centred for a parent to do to a child. The Family Consultant also raised, as noted in paragraph 76 of her Honour’s decision that the mother was likely to prioritise her relationship with her partner over her responsibility to act protectively with respect to [Y] and she concluded that:

    The father is more likely to facilitate the children’s relationship with their mother in Canberra if they live with him in Town A. If the children live in Canberra with their mother, it is anticipated that the mother will find apparently valid reasons to directly prevent them from spending time with their father in Town A. They will also not have the extended support networks that will be protective of them.

54. The mother has previously not returned the children in accordance with the orders citing she had no money. They were returned two days later. No doubt the father sorted that out but those words reported by the Family Consultant were prophetic indeed because that is exactly what has happened and the Family Consultant was correct.

55. Before a parenting matter is reopened, the Court must be satisfied there is cogent evidence of a change in a child’s circumstances or a parent’s circumstances to warrant a reopening; something that is going to impact upon the Judge’s decision, the Judge’s discretion as to where children live.

56. A risk of physical harm occurring on an ongoing basis would clearly fulfil that test and the Court would reopen the matter pronto and conduct an interim hearing to protect the child. I am not satisfied this is the case in this matter or the fact in this matter. Given that the mother’s evidence is, otherwise than as reported in the incidents in the father’s home in November, only a repetition of the past.

57. Her behaviour in changing [X]’s surname, enrolling the children in a new school without the father’s name being noted, all the old violence allegations she continues to drag up in her affidavit, which have been before the Court on many occasions, do not satisfy me and her application to reopen this parenting matter is dismissed, as is the grandmother’s application to intervene as there is now no longer any proceedings for her to intervene in.

58. The application that now flows from my decision is the father’s application for his costs, initially on an indemnity basis. I indicated I would not entertain that application but costs at scale for the recovery order application brought in Canberra in January 2018 in which he was successful, and defending the mother’s application to reopen the parenting proceedings which I have heard today, where again the father was successful.

59. It is true under section 117(2) of the Act[2] both parties bear their own costs generally in these proceedings but these are not substantive proceedings. They are, if I could use the word peripheral, but important proceedings.

    [2] Family Law Act 1975 (Cth), s 117(2).

60. The Court must be satisfied that there are good reasons why it would exercise its discretion to depart from the usual order, which is that both parties bear their own costs. Those circumstances clearly exist in this matter, as I see it. The fact the matter is about parenting does not take it into any particular realm or category of matters, as I see it, and it is still within my discretion to make these orders. The factors that I have had regard to in this matter are as follows.

61. This is the third occasion the father has brought this matter to the Court to have children returned to him pursuant to consent orders entered into in 2015 and latterly 22 May 2017. This is the third recovery application where the father has been successful in having the children returned to him and live with him and then consent orders follows.

62. If I can just deal with the recovery application in January 2018 where her Honour reserved the costs, was brought about wholly by the mother’s failure to comply with consent orders entered into in May 2017 to return the children to their father at the end of her time with them in January.

1. The mother raised allegations of poor behaviour and physical risk of the children in the father’s care and the father admitted he had behaved poorly and had physically chastised and perhaps abused his son in November 2017 but consistent with my decision her Honour found this:

   There is no evidence before me the father has breached Court orders in the past.

2. That cannot be said for the mother. She has done so on many occasions, and not just the three recoveries but on other occasions as well:

   In making an order that the children return to the father in Town A, I am satisfied that [X] will not be exposed to an unacceptable risk of family violence, given the safeguards in place pursuant to these orders.

3. That should have told the mother what these proceedings were about. I have found this is a one-off concerning incident but a one-off incident borne out of frustration which the mother, to this day, fails to recognise she has had a significant hand in creating, not that this justifies the father’s behaviour in any way whatsoever. It is the mother’s conduct that has brought about both sets of proceedings in this jurisdiction. This is the, as I said, the third occasion the father has been back to Court to obtain a recovery order, and the second set of proceedings that he has had to deal with since the consent orders were made in May 2017.

4. The mother has been wholly unsuccessful in each of her applications. That is, to have the children remain in Canberra with her, and in her application to reopen these parenting proceedings. I accept that the mother is in a difficult financial position as is the father. He has the full-time care of the children and he tells me the mother is in arrears of child support. There are significant high costs of the children spending time with their mother. However, that is a consequence of choices adults make and the mother’s choice to live in Canberra, for which I do not criticise her, given her support is in that area.

5. However, that is simply consequences of how parents choose to lead their lives. There were consent orders made. The mother simply will not accept the orders she agreed to by consent. I said it in my judgment. Judge Tonkin referred to it and this lack of child focus of the mother is the reason we are here today. These are matters that the mother really needs to address. It may be difficult for her to accept but she entered into the orders. The children are with their father. They are progressing well. He complies with orders for them to spend time and it is a matter that she really needs to deal with so that she can move on with her life.

6. Going back to the factors that are relevant to the costs decision, impecuniosity, inability to pay a costs order is not necessarily a reason why a Court would not impose a cost order. As I see it, I would be making a significant error if I did not impose some cost order in this matter. This father has had to borrow money for these proceedings. He travelled to Canberra to have his children returned to him in January. He has defended the application to reopen the parenting matter which was clearly an application that must succeed, having regard in what her Honour Judge Tonkin said, and the difficulty in reopening parenting matters in such a short compass of time, less than 12 months since the consent orders were made.

7. I formed the view that it is proper that I make an order that the mother to pay the fathers’ costs at scale in the sum of $12,022 as I have assessed.

8. The father seeks the mother have six months to pay. Given her particular circumstances at this stage, I will give her 12 months to pay.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 16 November 2018