Donella and Donella (No 2)

[2014] FamCA 1009

FAMILY COURT OF AUSTRALIA

DONELLA & DONELLA (NO. 2) [2014] FamCA 1009

FAMILY LAW – CHILDREN – With whom children spend time – application by father to increase children’s time with him to equal time – final orders made 19 months previously – no change of circumstances.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725
Marsden and Winch (2009) 42 Fam LR 1
Freeman and Freeman (1986) 11 Fam LR 293

APPLICANT: Ms Donella

RESPONDENT: Mr Donella

FILE NUMBER: MLC 2881 of 2011

DATE DELIVERED: 9 April 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 27 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glass

SOLICITOR FOR THE APPLICANT: Altavilla Vessali

COUNSEL FOR THE RESPONDENT: Ms Stavrakakis

SOLICITOR FOR THE RESPONDENT: Kyriacou Lawyers Pty Ltd

Orders

1. That paragraphs 1 to 6 inclusive of the final orders sought in the husband’s Response filed 6 August 2013 be dismissed.

2. That paragraph 1 of the Interim Orders sought in the husband’s Response filed 6 August 2013 be dismissed.

3. That should any party seek costs arising out of these orders, such application be made by written submission and filed and served no later than 17 April 2014 with such submission being endorsed with the fact that it has been so served on the other party, and any recipient of such submission have until 1 May 2014 to file and serve any response and such response be endorsed with the fact it has been so served upon the other party and upon receipt of any such application for costs it or they be determined in Chambers.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Donella & Donella 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 MELBOURNE

FILE NUMBER: MLC 2881 of 2011

Ms Donella

Applicant

And

Mr Donella

Respondent

REASONS FOR JUDGMENT

1. Following a contested hearing of five days’ duration final parenting orders were made by Forrest J on 6 January 2012. The orders were extensive, addressing the issues of parental responsibility, with whom the children live and spend time, as well as making specific provision for the husband to obtain therapeutic assistance. An order was made for the supervision of the implementation of the orders pursuant to s 65L of the Family Law Act 1975 (“the Act”). 

2. His Honour provided extensive reasons for judgment spanning some 281 paragraphs.  He made findings in relation to the allegations of sexual abuse levelled against the maternal grandfather and the wife, the allegations as to the wife’s capacity to care for the children as well as in relation to the husband’s conduct.

3. On 27 June 2013 the wife filed an Initiating Application in which she seeks final property orders.  By his response filed 6 August 2013 the husband seeks to alter the final parenting orders (made approximately 19 months before) and seeks orders that the children live with the parties on a “week about” basis.  The wife seeks a dismissal of that application on the basis that there is no change of circumstance that would justify the re-litigation of the parenting issues, including with whom the children should live and how much time they should spend with the husband.  The wife relies upon the principles enunciated in Rice and Asplund (1979) FLC 90-725.

BACKGROUND

1. The husband was born in 1970 and is aged 44 years.  He states that his occupation is “domestic duties”. 

2. The wife was born in 1978 and is aged 35 years.  Her occupation is homemaker.  The wife has multiple sclerosis. 

3. The parties started living together in 2003 and married in 2005.  They separated in 2011 and were divorced in 2012.

4. There are three children of the marriage, B born in 2005 who is aged eight and a half years, J born in 2006 who is aged seven years and five months, and N born in 2008 who is aged five years and eight months.

5. At paragraphs 2 and 3 of his Reasons for Judgment, Forrest J records the difficult litigation history the parties endured following their separation.  His Honour notes that the parties had proceedings in relation to family violence in the Magistrates’ Court of Victoria.  Upon the conclusion of those proceedings, child-related proceedings immediately commenced in the Federal Magistrates Court (as it then was).  His Honour notes that there were a number of interim hearings in the Federal Magistrates Court and that the proceedings were ultimately transferred to this Court and placed in the Magellan list of cases.  At paragraph 3 of the Reasons for Judgment his Honour notes:-

   There has been a lot of external forensic and therapeutic involvement in the lives of the members of this family in the last two years, particularly so in the months since separation.  Very few families that come before this Court have as much forensic effort directed at them in such a short space of time as this family had. 

6. His Honour heard the matter over five days in November and December 2011 and delivered judgment in January 2012. 

7. During those proceedings the husband levelled extremely serious allegations against the wife and members of her family.  Those allegations include:-

   ·That the maternal grandfather had sexually abused B, J and possibly N;

   ·That the wife was involved in the alleged sexual abuse and that at least on one occasion she was in bed with B when the maternal grandfather sexually abused him and that she acquiesced in the abuse of B by her father and that she engaged in sexual activity with her father at the same time;

   ·That the wife and her elder sister were both sexually abused by their father when they were growing up;

   ·That the wife has a history of mental health problems which have manifested themselves in chronic compulsive lying, depressed mood and suicidal ideation; and

   ·That the wife suffers from multiple sclerosis and as a consequence of her illness is incapable of caring for the children.

8. Each of those allegations was found to be untrue.  At paragraph 249 of his Reasons for Judgment, Forrest J made findings that the children were not sexually abused by their maternal grandfather.  Further his Honour confirmed that he was positively satisfied that the wife was not involved in any sexual abuse of the children. 

9. At paragraph 248 of the judgment his Honour found that the husband and other members of his family have gone so far as to make up some of the assertions to support the allegations of sexual abuse and that the husband had gone so far as to deliberately encourage B to make disclosures of sexual abuse. 

10. In summary, the orders made by his Honour are as follows:-

    ·That the wife have sole parental responsibility in respect of all major long-term issues;

    ·That the children live with the wife;

    ·That the children spend no time nor communicate with the husband before 4 February 2012;

    ·Between 4 February 2012 and 18 August 2012 the children’s time with the husband be supervised and occur as follows:-

    (i)Initially 9.00 am to 11.00 am each Saturday; and

    (ii)From 17 March 2012 to 18 August 2012 from 9.00 am to 5.00 pm on the first, third and fifth Saturday of each month.

    ·The husband’s time with the children be on an unsupervised basis as follows:

    (i)From 1 September 2012 to the commencement of the 2013 school year from 9.00 am Saturday to 5.00 pm Sunday each alternate weekend.

    (ii)Commencing in 2013 from after school Friday to the commencement of school Monday each alternate weekend and for one half of school holiday periods.

11. In addition, orders were made with respect to special days including Christmas, birthdays, Mother’s Day and Father’s Day.

12. The husband now wishes to vary the orders such that the children spend time with him on a “week-about” basis.  The wife opposes any change to the orders.  It was the position of the wife that there was no evidence presented to the Court that would justify a finding that there has been a significant change of circumstances since the orders were made.  I agree with that submission for the reasons that follow.

How the hearing proceeded

1. The parties agreed that the threshold issue in relation to Rice and Asplund could and should be dealt with on submissions taking into account the evidence in the affidavit material each relied upon.

2. On 11 December 2013 orders were made listing the threshold issue for hearing noted as a half-day matter.  That day, directions were made for the filing of further affidavit material and case outlines in relation to the threshold issue.

3. For the purposes of the threshold issue the wife relied upon the following material:-

   ·Case outline dated 14 March 2014;

   ·Affidavit of the wife filed 27 June 2013 (paragraphs 24-26 inclusive);

   ·Affidavit of the wife filed 4 September 2013;

   ·Affidavit of the wife filed 24 February 2014.

4. The husband relied upon the following material:-

   ·Case outline dated 14 March 2014;

   ·Affidavit of the husband filed 6 August 2013 (paragraphs 7-40, 72, 79 and 80);

   ·Affidavit of the husband filed 18 September 2013;

   ·Affidavit of the husband filed 30 January 2014.

Relevant law

1. It was held by Evatt CJ in Rice and Asplund that a Court “should not lightly entertain” an application to reverse earlier parenting orders.  The rationale for that position was to avoid the “endless litigation” that might otherwise ensue since “change is an ever-present factor in human affairs”. 

2. At page 78,905 of the judgment Evatt CJ suggested that a court would only hear an application to vary an earlier order if it was satisfied that there:-

   …is some change of circumstance which would 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…

3. It was acknowledged by Evatt CJ that there are a wide variety of circumstances that would warrant the application of the above principle.  This is apparent at pages 78,905 to 78,906 of the judgment where her Honour notes:-

   These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.  It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served.  These principles apply whether the original order was 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.

4. That on-going litigation is likely to have a deleterious effect on children has been recognised by the Court.  In the decision of Freeman and Freeman (1986) 11 Fam LR 293 Strauss J noted at pages 76,470 to 76,471:-

   Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely.  It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family.  It is financially burdensome…the welfare of the children is, in this case as in any others concerning custodial arrangements, the paramount consideration.  But once the Court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the Court is treated as determining the dispute and be given the necessary support.  Stability in the lives of children and also in the lives of adults is an essential prerequisite to their wellbeing…

5. Section 69ZN(3) of the Act specifically directs the Court to have regard to the impact that the conduct of the proceedings may have on the children in determining the conduct of the proceedings.

6. In determining when the Court should embark upon another hearing concerning parental arrangements the Full Court in Marsden and Winch (2009) 42 Fam LR 1 stated as follows:-

   50. 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.

7. At paragraph 58 the Full Court described a two-step process to be followed when the Rice and Asplund “rule” is invoked.  There Honours said:-

   58. …there is a requirement:

   (1)for a prima facie case of changed circumstances to have been established; and

   (2)for a consideration as to whether that case is a sufficient change of circumstance to justify embarking on a hearing.

8. It is also important to recognise that in applying the “rule” in Rice and Asplund, the best interests of the children remains the paramount consideration.

What are the alleged changed circumstances?

1. In support of his application to change the parenting orders, the husband pointed to three factors which he said were changed circumstances.  Those factors were:-

   ·That the husband had accepted the findings of Forrest J with respect to the husband’s allegations of sexual abuse;

   ·That the parties’ communication had improved; and

   ·That between September 2012 and February 2013 the wife had permitted the husband to spend more time with the children than provided in the orders.

Is acceptance of the trial judge’s findings a changed circumstance?

1. In relation to the husband’s alleged acceptance of the trial judge’s findings the husband relied upon the email forwarded by him to the wife on 13 April 2012.  That email said in part:-

   I know your parents are good people.  I understand and believe everything that [B] has said about your dad and you is completely made up and not true.  I have seen it first-hand the things he can make up.  I know you and your dad are good people and I completely respect you both.  I am sorry that you both went through what you both did, as for your mum we did not see eye to eye a lot of the time but I know that she is a good person.  You do not need to respond to this, but I thought it would be the wright [sic] thing to you to know what I’m thinking.[1] 

   [1]Husband’s affidavit filed 6 August 2013, paragraph 9.

2. The wife responded to that email as follows:-

   I appreciate your apology and it’s a beginning to a long healing process. 

3. It was submitted on behalf of the wife that that email exchange of itself does not demonstrate a change of circumstances.  In support of that submission, counsel for the wife noted that during the course of the hearing, the husband and the other members of his family said that they would accept the Court’s finding if it was that sexual abuse of the children as alleged did not happen.[2]  Further, Forrest J noted that the therapeutic assistance the husband was ordered to attend would assist him in coming to terms with the effect of His Honour’s decision and findings, as well as the breakdown of the marriage, and would enable him to move forward in an appropriate and child-focussed manner.[3]

   [2]Reasons for Judgment, paragraph 280

   [3]Reasons for Judgment, paragraph 275

4. It was submitted on behalf of the wife in light of those findings the fact of the husband’s emailed apology of itself was not a significant change of circumstances.  I accept that submission. 

5. In my view, such acceptance of the trial judge’s findings does not demonstrate a change of circumstances.  The husband’s acceptance of the findings represents some improvement in his attitude to and relationship with the wife.  No doubt, the children have benefitted from that shift.  However, that change is no more than what was expected by the trial judge as is apparent from his Reasons for Judgment.  Indeed, such a shift is no more than would be hoped for in most parenting cases litigated in this Court.  As such, it is not, in my view, a change that would justify a re-litigating of parenting matters.

6. It was also submitted on behalf of the wife that whilst the husband had proffered an apology, that apology contained no acknowledgement or acceptance by the husband of the psychological abuse suffered by the children as a result of his allegations and conduct.  Forrest J made specific findings that the husband had engaged in conduct that was psychologically abusive of the children[4], that it was his view that the husband does not actually believe that the maternal grandfather and the wife sexually abused the boys and that the husband’s case had grown out of his “unwillingness to accept the end of the relationship with the wife and his determination to maintain control of the family”[5].

   [4]Reasons for Judgment, paragraph 268

   [5]Reasons for Judgment, paragraph 250

7. The husband’s apology, when read in conjunction with the findings of the trial judge, does not indicate any significant shift in the husband’s attitude.  Indeed, what is striking about the husband’s apology is his failure to accept any responsibility for the manner in which the proceedings were conducted and the impact of the proceedings on the children.  Instead, the apology appears to shift blame to the child B for fabricating the allegations of sexual abuse. 

8. The fact that the husband does not appear to accept responsibility for his own conduct in the proceedings or its impact upon the children bolsters my view that the husband’s apology to the wife does not demonstrate a change of circumstance.

Is there improved communication between the parties?

1. Counsel for the husband submitted that since the husband’s apology to the wife, communication between them has improved significantly.  She submitted that since the apology, the parties demonstrated that they were able to communicate effectively in relation to a range of issues relating to the children.  In support of that submission she relied upon the affidavit of the husband filed 6 August 2013 and particularly to the email exchanges between the parties annexed to that affidavit which she said were examples of the parties communicating effectively.  Those emails traversed areas such as discipline of the children, the children’s behaviour, the parties’ approach to parenting the children and the like.

2. Counsel for the husband sought to highlight the contrast between the  husband’s attitude and behaviour as identified by the trial judge (for example, the findings that the husband had deliberately attempted to influence B to make disclosures that he was sexually abused[6]; and that the husband was “dominant and controlling by nature in his relationship with [the wife]”[7]) with the positive relationship between the parties which now exists, which she says is evidenced in the SMS texting and email communications between the parties since the apology. 

   [6] Reasons for Judgment, paragraph 247

   [7] Reasons for Judgment, paragraph 248

3. Counsel for the wife submitted that there were only oblique references to the parties’ communication at the time of the final hearing.  Accordingly, it was submitted on behalf of the wife that there could be no meaningful comparison between communications between the parties at the time of the final hearing as compared with the communications relied upon by the husband in support of his submission that the parties’ level of communication had improved. 

1. It was submitted on behalf of the wife that the orders of Forrest J were directed towards improving the husband’s ability to focus on the needs of the children and therefore improve the parties’ ability to communicate in relation to the children’s needs.  In support of that submission counsel for the wife referred to paragraph 8 of the orders which required the husband to complete a parenting program and men’s behaviour change program. 

2. It was submitted on behalf of the wife that it was anticipated that upon completion of the therapeutic intervention, the husband would be able to focus his energies on the children in a more productive manner.  In support of that submission I was referred to paragraph 275 of the Reasons for Judgment wherein his Honour stated:-

   I expect the husband will have, with therapeutic assistance I ordered him to receive, by then have come to terms with the effect of my decision and findings, as well as the breakdown of the marriage with the wife and will be able to move forward with appropriate child-focus. 

3. I am satisfied that the fact that the parties are able to communicate effectively in relation to the children is a matter that was anticipated by the trial judge at the time he made the orders.   The manner in which the trial judge drafted the orders supports that view.  For example, paragraph 2 of the orders specifically requires the wife to communicate with the husband prior to making any major long-term decision in respect of the children.  Further and significantly, paragraph 6 of the orders provides:-

   …time between the children and their husband may be unsupervised and shall occur at all such times as the wife and husband may agree in writing and failing any such agreement… (emphasis added).

4. I do not consider the fact that the parties have been able to communicate in a child-focussed manner to be a significant change of circumstance that would warrant further court intervention. 

Is the provision of additional time a change in circumstance?

1. The orders provide that the husband have supervised time with the children between February and August 2012.  From 1 September 2012 the time between the children and the husband was to be unsupervised and to occur at such times as agreed between the parties in writing.  Failing such written agreement the husband was to spend time with the children from 9.00 am Saturday to 5.00 pm Sunday each alternate weekend until the commencement of school in 2013 and thereafter from after school on Friday to the commencement of school Monday each alternate weekend.

2. It was common ground between the parties that between September 2012 and February 2013 the husband had additional time with the children to that provided by the orders.  The parties had in accordance with those orders entered into agreement in writing as to the time the husband was to spend.  The most significant change to the orders was that rather than spend time for one night per fortnight with the husband, by agreement, the children commenced spending time with the husband from after school Friday to the commencement of school Monday each alternate weekend.  Further, on approximately four of those weekends the husband’s time was extended to conclude on Tuesday morning rather than Monday morning.

3. It was submitted on behalf of the husband that the agreement to provide that additional time constituted a change in circumstance. 

4. Counsel for the wife submitted that what had occurred was nothing more than what had been contemplated by the trial judge’s orders, that is, that the parties would enter into agreement as to the time the husband should spend with the children.  The weekend time specified in the orders was what was to occur were the parties unable to reach agreement.

5. In essence, what occurred was that the implementation of the extended overnight weekend time was accelerated.  Rather than commencing at the beginning of the 2013 school year, such time commenced in September 2012.  Ultimately, in late February 2013, the wife wrote to the husband indicating that she preferred to rely upon the time specified in the orders with respect to the children’s weekend time.  Thereafter the children spent time with the husband in accordance with paragraph 6(iii) of the orders. 

6. Almost six months elapsed between the wife informing the husband of her decision to rely upon paragraph 6(iii) of the orders and the husband filing his application to vary the orders.  The husband’s application to change the parenting orders was filed in response to the wife’s property application. 

7. I am satisfied that the provision of the additional time to the husband (as set out above) does not constitute a change of circumstances sufficient to justify re-litigating the parenting proceedings.

8. What has occurred in terms of the time spent by the children with the husband was no more than was provided in the orders of the trial judge.  Even were such additional time considered a change of circumstance, having regard to the history of the litigation and its likely impact upon the children, I do not consider such change so significant as to warrant a re-opening of the parenting issues.

The impact of the litigation upon the children

1. In support of her opposition to re-opening the parenting case, the wife relied upon the extensive exposure the children had to a number of health professionals during the course of the previous proceedings. 

2. The matter was heard as a Magellan case.  Due to the allegations of sexual abuse, B was exposed to no less than eight separate interviews between April and August 2011.  The Reasons for Judgment record that the  professionals who interviewed B included:-

   (a)his general medical practitioner on 21 April 2011[8];

   (b)a female police officer attached to the sexual offences and child abuse unit on 22 April 2011[9];

   (c)a Department of Human Services (“DHS”) worker on 9 May 2011[10];

   (d)a second DHS worker who attended B’s school and interviewed him on 7 June 2011[11];

   (e)Mr M, social worker who saw B on three occasions on 6, 13 and 18 August 2011[12]; and

   (f)the Family Report writer. 

   [8] Reasons for Judgment, paragraph 129.

   [9] Reasons for Judgment, paragraph 146.

   [10] Reasons for Judgment, paragraph 174.

   [11] Reasons for Judgment, paragraph 218.

   [12]Reasons for Judgment, paragraph 228.

3. It was submitted on behalf of the wife that the children’s exposure to that range of professionals in the context of the previous court proceedings was likely to have had an adverse effect upon the children’s psychological and emotional wellbeing.  It was submitted that it would be contrary to the children’s best interests to re-open those proceedings in light of that history.  I accept that submission. 

4. There can be little doubt that the protracted proceedings between the parties and the obvious involvement of the children in that process, as is demonstrated by the range of interviews the children were subjected to, would have impacted upon them.  Further there can be little doubt that the parties’ ability to parent was likely adversely impacted as a result of those proceedings.  By their very nature court proceedings are stressful and costly.  The burden of such litigation must impact upon the children for whom the litigants care.  I am satisfied that the children would be so impacted were parenting issues to be re-litigated.  I am also satisfied that were the matter to be re-litigated there is no evidence that would support any significant variation to the current orders.

CONCLUSION

1. The wife submits and I accept that the children need a period of stability in the aftermath of the litigation.

2. In all of the circumstances, I am satisfied that there is not a change of circumstance sufficient to warrant a re-litigating of the parenting proceedings.

3. In my view it is in the children’s best interests that there is no reconsideration of the parenting issues at this time. 

4. Further I am satisfied that having regard to the provisions of s 69ZN of the Act, such a re-opening of the facts in this case would not benefit the children. Given the history of the previous proceedings, as outlined herein, I am satisfied that the children are entitled to have an extended period of stability in their lives without further litigation.

5. Accordingly the application of the husband must fail. 

6. I will make provision for the parties to file written submission in relation to the question of costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 April 2014

Associate: 

Date:  9 April 2014