Dooley and Roache (No.2)

[2018] FCCA 505

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOOLEY & ROACHE (No.2) [2018] FCCA 505

Catchwords:
FAMILY LAW – Parenting – final parenting proceedings May 2017 after four day contested hearing – mother filed recovery application in response – father argues significant change of circumstances justifying further parenting proceedings – no significant change of circumstance.

Legislation:

Family Law Act 1975, s.117

Federal Circuit Court Rules 2001, sch.1

Cases cited:

Roache & Do [2017] FCCA 1027

Rice & Asplund (1979) FLC 90-725
Marsden & Winch [2009] FamCAFC 152
Munday & Bowman (1997) FLC 92-784
Colgate-Palmolive Company & Cussons Proprietary Limited [1993] FCA 801
In the marriage of Kohan and Kohan (1993) FLC 105
Prantage & Prantage [2013] FamCAFC 105

Applicant: MS DOOLEY

Respondent: MR ROACHE

File Number: MLC 9284 of 2015

Judgment of: Judge Harland

Hearing date: 16 February 2018

Date of Last Submission: 16 February 2018

Delivered at: Melbourne

Delivered on: 16 February 2018

REPRESENTATION

Counsel for the Applicant: Ms Colla

Solicitors for the Applicant: Pearsons Lawyers

The Respondent: Self-represented

ORDERS

1. All Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

2. The Father to pay the Mother’s costs fixed in the sum of $9,000.

3. The Father have 3 months within which the pay the costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9284 of 2015

MS DOOLEY

Applicant

And

MR ROACHE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. In this matter I have delivered reasons after a four-day hearing in April, on 19 May 2017.  Those reasons need to be read in conjunction with these further reasons for the context and the background.[1]  The current proceedings are before me because the mother filed an urgent application seeking a recovery order with respect to X born (omitted) 2004 (“X”) on 14 December 2017.  The matter came before me on 11 January 2018.  By that time, X had been returned to his mother’s care.

   [1] See, Roache & Dooley [2017] FCCA 1027

3. The father filed a response to the mother’s application in a case seeking significant changes to the orders I made, including a change from sole parental responsibility in the mother’s favour to shared parental responsibility and a change of residence for the children.  He sought that the mother have supervised time with the children.  He filed a further response to the application in a case seeking a family report and that X live with him pending a final hearing.

4. The mother raised the issue of what is often referred to as the Rice & Asplund principle and argues that there have been no significant change of circumstances in that the father should not be permitted to re-agitate issues that have been recently determined.[2]  I adjourned the matter for argument today on that issue.  Ms Colla provided the father with a copy of the decision of Rice & Asplund on that occasion, and the father has been given the opportunity to obtain legal advice and to consider his position.

   [2] See Rice & Asplund (1979) FLC 90-725.

5. The father has filed further material in support of his application, and the mother has filed further material in opposition.  The father relies on three affidavits that he has filed himself on 9 January 2018, 11 January 2018 and 29 January 2018, as well as an affidavit of his adult son, Mr A.  I have read those affidavits.  The mother relies on her affidavit of 12 December 2017 and a further affidavit filed on 7 February 2018.  At the beginning of the hearing today, the father sought the opportunity to cross-examine the mother about her affidavit material.

6. I refused that application as I determined that it was appropriate that this issue be determined as a preliminary issue rather than after a contested hearing.  That is within my discretion with respect to these types of matters.  With respect to any argument that raises the principle originally set out in Rice & Asplund and referred to since, in many decisions of the Full Court of the Family Court of Australia is, that it is simply a manifestation of the principle that the children’s best interests are the paramount consideration.

7. In Rice & Asplund, Evatt CJ made the following comment with respect to the consideration the Full Court had to have as to what principle should apply when a Court is faced with an application to change an earlier parenting order and said the following:

   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 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 change in circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at a previous hearing which would have been material.

8. I also refer to the comments of the Full Court of the Family Court of Australia in Marsden & Winch [2009] FamCAFC 152 and, in particular, paragraph 58 of that decision. At that paragraph, the Full Court acknowledged that there are circumstances where there are significant changes and where further hearing concerning the parenting matters is necessary. In determining whether or not there should be such further hearing, the court has to consider the particular facts in each case. The Full Court set out three matters that the court should consider.

9. The first being the past circumstances, including the reasons for decision and the evidence upon which it was based, the second being whether there is a likelihood of orders being varied in a significant way as a result of a new hearing, and the third, that if there is such a likelihood the nature of those changes have to be weighed against what the potential detriment would be to the children caused by the litigation, itself, such that if the changes were small there might not be sufficient benefit to compensate for the disruption that further litigation would cause.

10. In these reasons, I will not refer to all of the issues raised in the affidavits as it is unnecessary.  There really are two primary points that are raised by the father.  It is his case that, in particular, the incident that occurred on 10 December 2017 is what constitutes a major change of circumstances where it is his case that X was subjected to physical abuse by the mother that was not a matter of her self-defence and was excessive force and that X, in particular, but the younger children as well, are being exposed to ongoing abuse and psychological harm in the mother’s household.

11. He also raises an issue with respect to parental responsibility and seeks that there be an order for shared parental responsibility varying the order I made for the mother to have sole parental responsibility and refers to the mother not continuing the younger two children’s education at (omitted), but changing their school this year.  It is his case that the mother had intended to do that all along at the final hearing and that this represents a matter that was not disclosed at the hearing as significant.

12. He says there were other options that were not explored that he could have had some input to if there was an order for shared rather than sole parental responsibility.  He also points to the fact that since the hearing the proceedings in the Magistrates’ Court against the mother were concluded and there was a two-year order restraining him from making any contact with the children.  Those proceedings were on foot at the final hearing.  The father also says that the children have made ongoing complaints about their grandmother hitting them with a stick.

13. The mother denies that and that was an issue that was raised at the final hearing.  The two issues that are of most significance, as I indicated, are the circumstances surrounding the incident of 10 December 2017 and the issues the father raises with respect to parental responsibility.  In her affidavit in support of the recovery order, the mother sets out her version of what occurred on Sunday, 10 December 2017.  She refers to an incident where X refused to do what she asked him to do.  She says that she told him she would confiscate his laptop if he did not do what he was told and the situation escalated from there.

14. She says that X placed her in a headlock and they struggled.  She says that X was taller than her and stronger than her and that when she freed herself she pinned him to the bed to prevent him from attacking her again.  The mother says that she wanted someone independent to speak to X and called the police.  She says she saw X taking photographs of the red hand print of the left side of his chest, which she says was caused when they were struggling and when she pinned him to the bed.

15. She says that X told her that she was not allowed to touch him and that he was going to send the photo to his father, and she saw him sending several text messages.  She also refers to text messages that she received from Mr A.  I will return to those later.  In his affidavit filed on 9 January 2018, the father says that on 10 December the mother came into X’s bedroom and asked him to get ready to go see a friend.  He says that X stated that the mother hit him and pinned him down on the bed with both of her hands.

16. He says that X, at that point, didn’t resist her and that the mother used excessive force against him to hurt him.  He says that X told him that she dug her nails into his shoulder causing him pain that felt like multiple bee stings and was a pain rating of seven out of 10.  He says that whilst the mother was on the phone X saw the marks on him and took photos, because he knew that the mother was not allowed to physically attack him. 

17. He says that X told him that the mother told him to pack his bags and go and live with the father. X told him that he wanted to get away from his mother and took the photos to send to his father and his brother, Mr A, so that either of them could come and pick him up straightaway.  The father then says he saw a number of missed calls and texts from X.  The father says he tried to call him, but X did not answer and then communicated with him via text.  The texts are annexed to the father’s affidavit, and I will not set them out.  He also annexes a colour photograph that shows physical injuries to X.

18. X also told his father that he tried to leave the house, but the mother had locked the doors.  The father also contacted the police.  He says he was advised to take X to a police station to give a statement.  The father also contacted the Department of Health and Human Services (“the Department”) and X’s school.  X remained with the father for the next several weeks.  There is no evidence that the police took any action.  X did make a statement to the police and that statement is annexed to the father’s affidavit, as well.

19. The mother’s position with respect to this incident is that it is another story with the same theme as to what was raised and examined at the final hearing, and, in particular, it raises similar things.  In my reasons delivered on 19 April 2017, I expressed concerns about X’s troubled behaviour, which I found to be due, in no small part, because of the high level of conflict and the fact that both parents, but particularly the father, had empowered X rather than setting X clear boundaries.

20. I referred to incidences of X’s defiant behaviour with respect to his mother and referred to a few incidents that had occurred which did result in physical altercations between the two of them.  I also expressed concerns about the way X frequently contacted his father and made complaints about his mother to him and that the father’s responses to this was to not to reality test with X, but to accept what he said on face value and the effect of what he was doing was undermining the mother’s parenting. 

21. I had the benefit at the hearing of assessing both parties as they were cross-examined and also had the expert evidence of Dr N, as well as evidence from X’s psychologist, Ms W, and in that regard I refer particularly to paragraph 79 of my reasons in the primary decision.  Paragraph 54 is also of some significance as I refer to X seeing living with his father as the ideal scenario and seeing his father as being his champion.

22. I expressed some concern that there would be a real possibility that X would be disenchanted living at his father’s home if his father had to impose discipline upon him in the same way that has occurred in his mother’s home, and what was very concerning with respect to X’s emotional well-being was the way that he was enmeshed in the dispute between his parents, and in this regard I made criticisms of both parents and really it was speaking about what the least detrimental arrangement was going to be.

23. Paragraph 59 was also significant as I recorded that:

    So long as the father believes the children are not safe in the mother’s care he’s likely to continue to interfere and undermine the mother’s parenting, particularly with respect to X, who he sees as being most at risk.

    Currently, I have some concerns that the father will not accept the Court’s assessment of this.  There is no doubt, as I also refer to in those reasons, that the mother has difficulties in managing X’s behaviour, and X’s behaviour at times is physically aggressive.

24. The father says that the photographs and the reports to the police support X’s case that, essentially, his mother used inappropriate and excessive force on him physically when it was not necessary.  This echoes incidents that I outlined in my final reasons, that I will not set out again here, but, particularly with respect to the incidents where X was defiant with the mother with respect to emptying out his bag and also with respect to the use of his laptop and the internet that led to the Department becoming involved and X being placed in his father’s care for a period of time.

25. The father’s position is that X and the younger children are at risk in the mother’s care, and that he cannot ignore the complaints that X raises.  He says that he cannot communicate with the mother and check with her as to what is happening, and, certainly, that was also an issue in the case at the final hearing.  The texts between the father and X and X and Mr A are troubling, as is the text between Mr A and the mother as it really is further examples, and consistent with what I found in my reasons at the final hearing of undermining of the mother’s parenting.

26. X knows that the father will react in this way if he makes complaints about the mother.  There have been instances of physical altercation where X has been aggressive towards his mother.  This has been an ongoing issue of X’s defiant behaviour that the mother at times struggles to handle, and as I had referred to in my primary reasons and noted again today, it is concerning that both parents resort to calling the police and involving X, in particular, speaking to the police.

27. X is well aware that if he contacts his father and his brother and makes these types of complaints they will validate him, support him and encourage him to take action to leave the mother’s home, and that’s exactly what happened.  It seems that the additional factor is now Mr A is involved in it as well, and he either is unaware of the reasons for decision or, like his father, does not accept them.  I accept the mother’s submissions that the text exchanges have the same flavour of the text exchanges that were in evidence before me at the final hearing with the example of what occurred on the Easter weekend being one, and I do not accept the father’s argument that Mr A was simply seeking to help to diffuse the situation.

28. His communications with X and the mother do not reflect that at all.  The mother submits that Mr A has really become the father’s agent and is essentially acting as his mouthpiece and in his shoes, and she submits that Mr A’s affidavit, rather than assisting the father’s case, harms it. I share that view as it reflects exactly the same concerns that were in the affidavit as to what the father was doing, but now it is the father and Mr A.

29. In the mother’s second affidavit, she in the last paragraph refers to two portions of my primary reasons for decisions, in particular, being at paragraph 43, which refers to the incident that led to the Department becoming involved and my comments that the father did not appear to appreciate that X complaining about his aunt not allowing him to use the internet is a minor issue and that X had been told and did not like being told to follow a reasonable direction, and what I said in the final sentence:

    My impression is that X knows all he has to do is call his father and complain about these kinds of things and his father will validate his complaints, rather than reality test X and tell him he has to follow reasonable directions

30. The father pointed out that a couple of times in his submissions and said that he finds it offensive that the mother would characterise the incident on 10 December 2017 as being a minor incident and the father says that she is taking it out of context because what I was referring to in that paragraph was something minor and not anything like what occurred in December.  The point that needs to be emphasised is that final sentence, and in fact, it is an example of the father’s real lack of insight because when looking at it the December incident starts with X not wanting to do something that he has been told he should do.

31. It echoes the previous incidents in the material that was before me.  The other paragraph that the mother referred to is paragraph 196, and in that paragraph I refer to my real concerns that the father would not accept the outcome of this case and would continue to undermine the mother’s and X’s relationship causing X long-term psychological damage.  I also take note of my last paragraph in that affidavit.  In my view, the evidence that is before me with respect to what has occurred since my decision is evidence of, rather than being a change of circumstance, evidence of some of the predictions and concerns that I had coming true and it does not bode well for the future and particularly with respect to X’s mental and emotional well-being.

32. I will turn briefly to the issue of parental responsibility.  Really, the father is raising what would be raised on an appeal, and I note that there was no appeal in this decision, and he acknowledges that the mother exercised her sole parental responsibility, but complains that she changed the children’s school and had really meant to do that at the time of the hearing, and he seeks an order for shared parental responsibility, so that that does not occur in the future and so that he can have input into those decisions.

33. That also shows the father has not come to grasp with my reasons for decision.  These parents do not communicate.  There is no effective way as to how they could exercise equal shared parental responsibility, and it is quite clear that the father has no respect for decisions that the mother makes and that it would lead to further conflict.  Certainly, as the mother’s counsel said, it is preferable for the children to have had stability with their school, but the mother had to move and a change of school happened at the end of the school year and, certainly what occurred in that respect does not justify any change to that order.  The father has not established that there has been a significant change of circumstance.  Quite to the contrary.  It is a continuation of the same problems that I identified in my primary judgment.

1. For these reasons I dismiss his application, and I express some concern that if incidents like this continue to occur it may well be that there has to be further changes to the orders, but it may be that that means having to restrict the father’s involvement with the children even further, because for X’s sake, in particular, he needs to be a child in the relationship and not feel that he is empowered to play his parents against each other and to go from one parent’s house to the other if he does not get his way or does not like what he is doing, and, indeed, the mother referred to an incident on 30 November 2017 where X had complained about his father and wanted to go home early and says that the difference is that she shut that down and did not encourage it.

2. The mother seeks costs on an indemnity basis or alternatively in accordance with the court’s scale of costs set out at schedule 1 of the Federal Circuit Court Rules 2001. Section 117 of the Family Law Act 1975 addresses the issue of costs and the usual position is that each party be responsible for their own costs in Family Law proceedings. If the court is to make an order for costs there needs to be justifying circumstances with reference to the matters set out in paragraphs 2A of section 117. In this case, neither party is in receipt of Legal Aid.

3. In terms of the financial circumstances of the parties, they did have property settlement proceedings last year where the father received a payment of $65,000 from the mother.  It is apparent that the mother is, in terms of income, in a stronger position than the father.  She remains employed full-time and the father is unemployed and the mother is not receiving child support.  The mother has had to fund these proceedings privately.  The father has appeared unrepresented.  One factor that is significant in this case is the fact that these proceedings were necessary because of a failure to comply with a previous order of the court.

4. The mother brought these proceedings to seek a recovery order, which was in effect, seeking an enforcement of the orders that I had made with respect to X.  If X had not had been over-held then the proceedings would not have begun.  She has not sought to agitate other orders, although she did seek some injunctions in her application, given that by the time the matter came to court X had been returned.  The father has been wholly unsuccessful in these proceedings.

5. This is not a matter where there have been offers of settlement, so that consideration is not relevant.  What is relevant is that the father was placed on notice when the matter came before me in January that he would face the argument that there had not been a significant change of circumstance, and I raised the concerns with him then that the issues that he raised are the very kinds of issues that had been dealt with at length in the judgment.  I adjourned the matter to today to give the father the opportunity to put on further material, receive advice and prepare for this hearing.

6. The father in opposing the mother’s application for costs says that he could not have foreseen that he would not be successful, if not with respect to the change of living arrangements, at least with respect to parental responsibility.  Given that the father was self-represented, there may be some merit in that comment as to the first appearance in court.  There is not with respect to the second appearance.  He was provided with the case of Rice & Asplund.  He was put on notice of the issues that were going to be raised. 

7. There was absolutely no merit in seeking to change the sole parental responsibility order and that was really trying to seek an appeal, and I find it really concerning that the very things that I warned about in the judgment and raised as concerns is what has, in fact, come to pass, and that the father continues to show a complete lack of insight into the issues and the concerns that I raised, and that is not to say that the mother is a perfect parent, she is not, but no parent is.  It is significant that the mother has had to incur some significant expense in bringing these proceedings in circumstances where it is an enforcement of orders, not fresh proceedings, and in continuing these proceedings and substantive argument today, which has taken half a day.

8. The mother has the primary care of the children and is not receiving child support, and that is a relevant factor, and I accept that the father is in a weak financial position, but impecuniosity in itself is not a bar to the court making a costs order in appropriate circumstances.  Seeking indemnity costs is a further exception to the ordinary rule and indemnity costs should only be made in exceptional circumstances, and in that regard I refer to the decisions of Munday & Bowman (1997) FLC 92-784, Colgate-Palmolive Company & Cussons Proprietary Limited [1993] FCA 801 and In the marriage of Kohan and Kohan (1993) FLC 105, as well as Prantage & Prantage [2013] FamCAFC 105 (“Prantage”).

9. Certainly, the mother has provided, as Prantich requires, the amount at scale and a departure from the scale.  The scale amount that she seeks is $7,444 and the indemnity amount she seeks is $12,349.  Bearing in mind what I have said about the first appearance and noting that that was not a half-day appearance, I propose to not make the order in the indemnity terms, but I do find that the circumstances in this case justify a costs order and justify a departure from the scale given that this is very much proceedings that were brought about by noncompliance with orders and that, certainly the preparation for today’s argument was necessitated by the father pursuing his position being on notice that there were real problems with it.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  2 March 2018