Dominic and Dominic

[2012] FamCA 782

FAMILY COURT OF AUSTRALIA

DOMINIC & DOMINIC [2012] FamCA 782

FAMILY LAW – CHILDREN – Application to re-open finalised residence orders pursuant to Rice and Asplund principles – where the father applied to have the matter re-opened in relation to the residence of one of his children  – where the application to re-open the case was refused on the basis that the father could not establish any significant change of circumstances – where the circumstances alleged to have changed were predictable and anticipated by the Court - where the mother’s decision to recommence a relationship was not a significant change in circumstance – where the subject child of the father’s application’s anxiety and depressive state were not a significant change in circumstances and had subsisted throughout the entirety of proceedings – where the fact that the child was now aged 15 was not a significant change in circumstances in regards to the veracity of his views - where the expressed wishes of the child were to live with the father - where the issues of parental responsibility and the time to be spent with the father were still before the Court

FAMILY LAW – CHILDREN – Interim Orders for spending time still pending – where there four children of the marriage – where there were three children who were minors at time of final hearing – where previous orders reversed the children’s residence so that the children lived with their mother – where the family consultant had provided evidence in previous proceedings that the children may have been alienated from their mother and were aligned with their father– that previous interim orders provided for no time to be spent with the father for a period of two months and thereafter to spend time with him on alternate Saturdays with no overnight time so as to allow the children to re-establish a relationship with the mother – where time has been increased by consent - where the two eldest children of the marriage remained hostile in their views of the mother

Family Law Act 1975 (Cth)

Rice and Asplund (1979) FLC 90-725

APPLICANT: Mr Dominic

RESPONDENT: Ms Dominic

FILE NUMBER: (P)NCC 1403 of 2010

DATE DELIVERED: 11 September 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 30 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Catherine Henry Partners

COUNSEL FOR THE RESPONDENT: Mr Sundstrom

SOLICITOR FOR THE RESPONDENT: APJ Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Leave to proceed with a further application for residence contained in the amended response of the father filed 11 May 2012 is refused.

2. The matter is adjourned to 9.30 am on 30 October 2012 for appointment of hearing dates in 2013 for determination of remaining issues, namely parental responsibility and time between each of the children and their father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dominic & Dominic 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 NEWCASTLE

FILE NUMBER: (P)NCC1403 of 2010

Mr Dominic

Applicant

And

Ms Dominic

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application for the Court to consider whether there has been a sufficient change of circumstances to justify re-opening the issue of residence for one child, N. The child is 15 and in Year nine.  The applicant on this occasion is the father, Mr Dominic (“the father”).  The respondent is the mother Ms Dominic (“the mother”).  Both parents are 38 years old.

2. The parties began a relationship in 1991 when they were 17.  They married in 1995.  They separated on 2 April 2010 when the father moved with the four children out of the family home.  The parties were divorced in June 2011.  They have four children C aged 18; N aged 15 (the subject child); X aged 13 and T, who will be nine in November 2012.  C has lived with her father since her parents separated.  The three younger children lived with their father for 18 months after separation and then with their mother by order of this Court, from late November 2011 to date (about nine months). 

3. It is submitted on behalf of the father that events in and around the life of N justify a reconsideration of his residence. 

History of litigation

1. On 5 May 2010 the mother filed an application in the Local Court seeking:

   ·Equal shared parental responsibility.

   ·Equal shared time on alternating weeks;

   ·Orders for other specific issues.

2. Two weeks later, on 20 May 2010, the parents consented to interim orders for the four children to live with their father and spend time with their mother for four hours per week on Monday nights[1].  The orders provided that any time C and N spent with the mother was subject to their discretion.  They also allowed for the two younger boys to spend more time than the stated four hours if they wished.  The matter was transferred to the Federal Magistrates Court at Newcastle.

   [1] The orders were formalised by a Registrar of the Local Court on 24/05/2010

3. On 5 July 2010 an order was made for the appointment of a joint expert to enquire into the mental health of the mother. 

4. On 16 August 2010 a report was finalised by Dr W, Psychiatrist[2].  That report reflected on certain difficulties of the mother relating to personality and a fluctuating mood disorder which “should not have a substantial impact on her parenting abilities.”[3]

   [2]  The report was formally released in December 2010 but appears to have been available to the parties and Family Consultant soon after its completion.

   [3]   Report of Dr W, dated 16/08/2010, par 8 p 10

5. On 29 October 2010 the Children and Parents Issues Assessment of Family Consultant Ms D was released. Ms D noted that the two older children C and N, had not spent any time with their mother, as contemplated by the consent orders made in May 2010.  The report also indicated that at that time contact with the extended maternal family had ceased.  In relation to N, Ms D noted that he presented as:

   Upset and angry with his arms folded across his body, with his legs folded and one foot continually jiggling[4]. 

   Ms D identified N’s developmental needs at the time as follows:

   The need for assistance to help him deal with his grief and anger around the parental separation.  [N] also needs firm boundaries in place with consistency across both homes, to help regulate his behaviour as he enters the risk taking stage of adolescence[5].

   [4] CAPIA Ms D dated 29/10/2010, par 4 p 6

   [5]  CAPIA Ms D dated 29/10/2010, par 4, p 7

6. On 20 December 2010 the earlier interim orders were discharged by consent.  Further interim orders were made providing for:

   ·Equal shared parental responsibility;

   ·Residence with father;

   ·Progressive amounts of time with mother;

   ·Family therapy to be undertaken.

7. On 10 March 2011 additional interim orders were made by consent, to extend the time for N and X with their mother.  A family report was ordered.

8. On 14 June 2011 the family report was released. Ms D noted the following matters in relation to N:

   ·       The father had arranged for N to see a psychologist, Mr H[6].

   ·       That the mother had objected to N seeing Mr H as he was already seeing Mr K pursuant to Orders made on 12 December 2010.

   ·       When the father was asked why he had originally taken N to see Mr H, he said, ‘It was because [N] was crying a lot at home and at school and because he was having problems sleeping and would end up in the father’s bed.’[7]

   ·       The paternal grandmother, Ms N Dominic, stated that she worried a lot about N and noted that she and this grandson were very close and that he spoke to her about most things[8].

   ·       The mother stated that the two older boys, N and X, were often openly hostile towards her and N had at times called his mother ‘a bitch’ and ‘a whore’ to her face.[9] 

   ·       “[N] said that he felt safer with his father and [when he is] ‘closer’ to him. He said that he and his father have a really good relationship and like to do things together, but that he and his mother don’t really have much in common. He said that he really doesn’t get on with his mother’s partner, [Mr M], who makes ‘smart comments’, but that he really likes his father’s partner and her children and would rather spend the time with them”.[10] 

   ·       “[N] said he didn’t mind going to see his mother but it did tend to get in the way of his plans to do things with his friends”.[11] 

   [6]  Report of Ms D dated 14/06/2011, par 53, p 15

   [7]  Report of Ms D dated 14/06/2011, par 69, p20

   [8]  Report of Ms D dated 14/06/2011, par 85 p 22

   [9]  Report of Ms D dated 14/06/2011, par 93 p 23

   [10] Report of Ms D dated 14/06/2011, par 129

   [11]  Report of Ms D dated 14/06/2011, par 130

9. Ms D noted that all four children appeared to have a warm and loving relationship with one another and with each of the paternal grandparents and their father. Ms D in her evaluation section, said this about N[12]:

   [N] is showing some very disturbing behaviour for a 14 years old boy.  One wonders whether the father understands that it is not normal fore a teenager of [N]’s age to be ‘shadowing’ his father around or trying to sleep in his bed with him, or to be suffering from chronic insomnia and high levels of anxiety.  This is very abnormal behaviour and needs to be addressed as a matter of urgency.  There is every reason to believe that N’s anxiety will generalise to other areas in his life and that his future emotional and psychological wellbeing is at grave risk.

   [12]  Report of Ms D dated 14/06/2011, par 154 p 32

10. It appears that the children were at that stage still rejecting their mother.  Family therapy with Mr K and the use of a communication book had not yet made a significant difference.

11. On 21 November 2011 the matter was listed for four days of final hearing.  On the third day, the father withdrew from the proceedings and the matter proceeded undefended.

12. On 24 November 2011 final orders were made providing:

    ·       Residence of the three younger children with their mother on a final basis;

    ·       Ongoing therapy for the whole family;

    ·       Interim orders were made awarding sole parental responsibility to the mother, with a period of no time with the father of about two months, followed by regular day time contact commencing in the first term of 2012, plus a further report on the issues of parental responsibility and time to be spent to be prepared in April 2012. 

13. On that same date, upon the application of the mother to the Court, an order for recovery was made for the children when the father failed to deliver them to the mother.  Orders were thereafter complied with.

14. In April 2012 the family report on outstanding issues was released. The recommendations of Ms D were[13]:

    ·       That the mother have sole parental responsibility for the children, who would continue living with her,

    ·       That time between the children and their father should be increased in accordance with the mother’s proposal, i.e. on alternate weekends from 5.00 pm Friday until 5.00 pm Sunday, and for half the school holidays and some other special times. 

    [13]  Report of Ms D dated 26/04/2012, p 21

15. Ms D noted in her report the following matters in relation to N:

    ·Testing revealed that his anxiety had fallen quite considerably and was now in the average range. His anger had also reduced to the moderately elevated range[14]. 

    ·N said he was getting along ‘so so’ with his mother, but that he got frustrated with her because ‘she won’t let him have the freedom that he feels he is entitled to’.  He said that she has taken away his phone and ‘pretty well controls every aspect of his life.’  N said that it was time for his mother to start to trust him and to let him be a normal teenager.  [N] was able to concede that this trust issue went both ways and that he would have to demonstrate to his mother that he would not let her down.[15] 

    ·The children, particularly N and X, continued to align themselves with their father who they perceive to be the injured party and the one in need of emotional support at this time[16]. 

    ·T who enjoys a good relationship with both parents has a tendency to copy the behaviour of his older brothers (including N)[17].

    Ms D noted a positive shift in the attitudes of all the children towards the mother.[18]  The father had no fresh proposals to put forward at the time of interview.

    [14]  Report Ms D dated 26 April 2012, par 72, p 17

    [15]  Report of Ms D dated 26 April 2012, par 75 , p 17

    [16]  Report of Ms D dated 26 April 2012, par 85, p 19

    [17]  Report Ms D dated 26 April 2012, pars 63-64, p 15

    [18]  Report  of Ms D dated 26 April 2012, par 87

16. On 11 May 2012 the father filed an Amended Response seeking:

    (1)      Discharge of the orders of 24 November 2011;

    (2)      Residence with him for N, X and T;

    (3)      Sole parental responsibility;

    (4)The mother to spend time with the children as recommended by the joint expert proposed by the father to be appointed, Dr R.

17. On 13 June 2012 the matter came back before the Court for directions on the final determination of the outstanding issues, namely parental responsibility and time. 

18. On 9 August 2012 the orders for time were varied to increase the time the three youngest children spent with their father to alternate weekends from 10.00 am Saturday to 3.00 pm Sunday, commencing 14 July 2012, together with one week of the third term school holidays.  On that day the father pressed for re-opening the issue of residence for the three youngest children. 

19. Time for a short hearing on the discrete issues of change of circumstance was allocated.

20. On 30 August 2012, the date of the short hearing, counsel for the father indicated that re-opening residence for the two youngest children was no longer agitated only in respect of N did the father seek to re-open.

The issue for determination

Should the issue of residence for N be re-opened?

1. The question taken at its highest is, could the evidence relied on justify a re-opening of this issue. 

2. The principles to be applied in determining such an issue are summaried by the remarks of the then Chief Justice Evatt in Rice and Asplund (1979) FLC 90-725 at 78,905 - 78,906:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680)…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.

3. Can it be said that in this case there is some changed circumstance which would justify such a serious step, some new factor arising, or some factor which was not disclosed at the previous hearing which would have been material?

4. The submission for re-opening was considered by the Court, nine months after the making of a final order for residence. 

5. The father was not present when the orders of 24 November 2011 were pronounced and ex tempore reasons given.  He had chosen on the third day of a hearing to disengage from the proceedings and leave the Court.  However, he knew that the matter would proceed to conclusion on an undefended basis. He had been legally represented and had received the family report which recommended a change of residence to the mother.

6. A final order was made for a change of residence with the three younger children going to live with their mother.  Six months after that final order was made, the father filed his Amended Response seeking to proceed effectively with a fresh residence application.  This proposed course is opposed by the mother and the Independent Children’s Lawyer.

7. In support of the argument that there has been a sufficient change of circumstance to justify re-opening, the father relied on the following material:

   (a)affidavit of the father sworn 10 May 2012, filed 11 May 2012;

   (b)affidavit of the father sworn 8 June 2012, filed 12 June 2012 (N’s conduct with a knife and referral to a further psychologist);

   (c)affidavit of the father sworn and filed 24 August 2012;

   (d)transcript of proceedings 23 November 2011, p 38, pars 25-35 inclusive (the restoration of the mother’s relationship with Mr M);  and

   (e)documents produced by School A in relation to N’s welfare at school.

8. The thrust of the submissions were as follows:

   (i)That it could not have been anticipated that Ns would become depressed and behave in the way he did with a knife.

   (ii)N is now 15 and has strongly held views.  He has consistently said that he wants to live with his father.

   (iii)That the mother had restored her former relationship with Mr M, having stated in the final hearing in November 2011 that the relationship was over.

1. N’s psychological state and “the Knife” incident

1. I do not consider that this ground has any real substance.

2. There is evidence referred to in these reasons that N was in a state of distress, sufficient for his father to take him to a psychologist immediately after separation, such distress having dated back for a significant period of months.

3. N is said to have reported to his father on 19 May 2012 that he had tried a few days prior, to cut himself with a knife, although he had not done so. N revealed to his father that he had been disciplined by his mother for alleged bullying of his brother X, that he and his mother had been drawn into an argument, that he went into the kitchen and grabbed the knife out of the drawer and made the following statement to his mother: “Is this what you fucking want to push me over the edge and kill myself.  Would you be happy then?[19]” N did not injure himself physically at all, although he had clearly become distressed.

   [19] Affidavit of the father sworn 8/06/2012, par 9

4. The father arranged for N to be seen by Mr B, a local practising Clinical Psychologist. Mr B gave evidence by telephone, attesting to the truth of the evidence provided in his proof of evidence on 29 August 2012. He gave oral evidence and was cross-examined. 

5. Mr B said that N had been referred by his general practitioner under a mental health care plan in May 2012 and that the general practitioner had referred to N as being depressed. Mr B said he did not have any grave concerns for N’s mental health, nor did he consider N was at continued risk of self harm.  Mr B considered that the behaviour that led to N’s referral (the threat of self harm with a knife), had been influenced by N’s awareness that the court was in the process of determining his parenting arrangements.  He also considered that N’s depressed mood was reactive to his family situation and his perceived lack of control in the circumstances. Mr B felt that N was mellowing in his attitude towards his mother and moving in the right direction in improving that relationship. 

6. In his oral evidence, Mr B said that N had told him that he did not intend to hurt himself or anyone else with that knife, that he had seen events unfolding in a fog and had felt that he was having a panic attack. Mr B provided further evidence that:

   [N] doesn’t like depression and wants to be better. 

1. Naturally, Mr B agreed that he had significant concerns about N and that this had been a seriously troubling event. However, he felt that N’ depressed mood was less severe than a depressive episode or a major depressive disorder.  It was clear that this was an episode where N was distressed and reactive, he did not need any physical care, and it was some days later in his father’s household that he revealed his feelings surrounding the incident.  Unfortunately such incidents, although not with a knife in hand, have occurred for N before, when he has become intensely distressed and has found it difficult to come back to equilibrium. 

2. The possibility of such incidents occurring was anticipated in the reasons for judgment delivered on 24 November 2011, in particular paragraphs 19, 34 and 36.  Further, the evidence of N’s behaviour in May does not establish that to the extent that he is depressed, or simply very unhappy,  that state was not predictable, or that it was the inevitable consequence of not living with his father.

3. Ms D previously indicated that it is psychologically damaging not to have finality in the proceedings. Mr K predicted that N would demonstrate loyalty to his father. N has settled into the arrangements with his mother, his attendance at school has improved and his school reports tendered into evidence[20] are impressive.  N’s anxiety levels have reduced.  That his progress has been uneven was in my view, predictable.

   [20]  Exhibit ICL ‘1’

(ii)  N is now 15 and has strongly held views. 

1. N has consistently expressed a view to Ms D, to Mr K and to the parties that he wishes to live with his father.  The fact that he continued to express the same desires, despite the relationship with his mother improving, was entirely predictable.  Mr K noted that N was likely to display loyalty to his father and he has done so. I do not discount the likelihood that N does wish to live with his father independently of that loyalty.

(iii)  That the mother has restored her formal relationship with Mr M.

1. The mother gave evidence in the hearing in November 2011 that the relationship between herself and Mr M had ended, but that she was hopeful of it being restored in time[21].  Apparently the relationship has been restored.  If it has, this too was a predictable event.  That N has continued to react to any attempts by the mother’s partner to exercise authority is also entirely predictable, especially as N believed and may still believe that the mother’s relationship with Mr M was the complete explanation for the breakdown of his parent’s marriage.

   [21] Transcript of proceedings 23 November 2011, pars 25-35 p 38

2. I do not consider that any of the events and the matters raised constitutes such a change of circumstances such that the issue of residence should be revisited.   Leave is not granted to re-open the issue.  In fact, I consider it would be deeply unhelpful to N to change his residence away from his mother and younger brothers into the household of his father and older sister at this time.  This is despite his strong wish to live with his father.

3. The risk of simply granting N’ wish is that his emotional state which has been improving will be destabilised and the restoration of his relationship with his mother undermined.

More time between N and his father

1. I have found that the issue of residence should not be revisited.  Having said that, there has recently been an extension of weekend time, including overnight each alternate weekend and a block of time in the holidays. 

2. The submissions by counsel for the father have considerable force in relation to the issue of the amount of time N spends with his father.

3. Given N’s close relationship with the father it is quite understandable that he is upset by any attempt on the part of Mr M to exercise that role.  He no doubt feels antagonised by the reintroduction of Mr M into his life and is protective of his father’s continued role as parent.  It may well be that he would benefit from more time with his father.

4. In less than three years he will be beyond the jurisdiction of this Court and both his parents.  He has asked Ms D about living independently from both parents at age 16.  N, as stated above, has been anxious and distressed both in the lead up to his parent’s separation, and in the aftermath.  But he is also a normal adolescent young man.  He has a girlfriend whose company means as much to him as his parent’s company does. He craves more freedom and independence and is frustrated at present that these needs appear to go unnoticed while he lives in the home of his mother.[22]  It is a critical age for his parents to be united in the limits and boundaries they establish for N.

   [22] Report of Ms D dated 26/04/2012, par 75

5. On balance, I consider that N is not simply turning to a parent who will give him what he wants more often than the other. He has felt closer to his father for years.  The mother reported to Dr W in 2010: “He is very close to his father and wants to be like him.”[23]

   [23]  Report of Dr W dated 26/08/2010, par 2 p 4

6. It is within the hands of the parents, especially the mother now that she has authority in the matter, to consider N as an individual.  His sister C was given that consideration when she was a year older than he is now.  He must be conscious of that. More time with his father would probably be enjoyable and helpful to N, but only in the context of the parents agreeing on new arrangements and then sticking to them.  That is the essential element, that the parties agree and do not use N as a conduit for requests for further time, or conflict if the answer is no.  If there is to be more time for N, the arrangements should be routinely implemented, unless there is advance agreement between the parents otherwise.

7. If the parents can do that for N more time would not cut him off from his brothers, realign him with his father and sister, or damage his relationship with his mother, which for now remains fragile.  The decision to grant N more time with his father, whilst leaving him in residence with his mother, is a matter for the parents right now. If they cannot agree this aspect will be determined on a final basis in due course.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 11 September 2012.

Associate: 

Date:  11 September 2012