Dwyer and Ireland (No 2)

[2021] FCCA 86

FEDERAL CIRCUIT COURT OF AUSTRALIA

Dwyer & Ireland (No 2) [2021] FCCA 86

File number:

DNC 545 of 2013

Judgment of:

JUDGE YOUNG

Date of judgment:

22 January 2021

Catchwords:

FAMILY LAW - parenting - incessant parental conflict - mother seeks variation of existing orders - principle in Rice & Asplund - no likelihood of substantial change in orders - application dismissed  

Legislation:

 Family Law Act 1975 (Cth), ss 11F, 60CC

Care and Protection of Children Act 2007 (NT)

Domestic and Family Violence Act 2007 (NT)

Cases cited:

Rice & Asplund [1978] FamCA 84; (1978) 6 FamLR 570

Number of paragraphs:

21

Date of last submission:

9 November 2020

Date of hearing:

9 November 2020

Place:

Darwin

Counsel for the Applicant:

Ms Alexander

Solicitors for the Applicant:

Central Australian Women’s Legal Service

Counsel for the Respondent:

Ms Franz

Solicitors for the Respondent

Darwin Family Law

ORDERS

DNC 545 of 2013
BETWEEN:	MS DWYER Applicant
AND:	MR IRELAND Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	22 JANUARY 2021

THE COURT ORDERS THAT:

1.That pursuant to s.11F of the Family Law Act 1975, the children only: X born in 2004, Y born in 2005, Z born in 2006, do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on 2 March 2021 at 9.00am. The parties are to confirm the attendance of the children to the Case Co-ordinator Child Dispute Services by email at [email protected] or alternately call 1300 352 000 fourteen days prior to the date of the interview and in the event such confirmation is not received the interviews will be cancelled NOTING that the family consultant is to have discretion as to how and where the children attend in City F.

2.That following thereof the Family Consultant provide a brief advice to the Court, particularly in relation to the repair of the relationship of the older children and the mother, and any recommendations as to interim or procedural orders.

3.That the matter be adjourned to 18 March 2021 at 9.00am for further consideration.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE YOUNG:

1. This is a parenting application in respect of five children: X, 16 years old, Y, 15 years old, Z, 14 years old, W, 11 years old, and V, seven years old.  Orders were made by consent by the Family Court of Australia on 11 April 2018 that provided, in summary, for shared parental responsibility, that the children live with the mother and that the children spend time with the father.  On reaching the age of 14 the children were to live with the parent with whom they chose to live with.  There was also an order that the four older children attend the B School if the mother paid the fees.  If not, the children were to attend public schools.

2. It is not in dispute that X went to live with his father and his father's partner soon after turning 14.  It appears to be an agreed position that Y has chosen to live in approximately equal time with each parent.  Z went to live with her father in early 2020 when she was approximately 13 ½. The two younger children, W and V continue to live with the mother.

3. On 28 August 2020 the mother filed an initiating application seeking to reopen parenting orders.  She sought, in summary, sole parental responsibility for the five children, that the children live with her, that the two younger children spend supervised time with the father and that a family report be prepared.  As interim orders she sought the appointment of an independent children's lawyer and orders for counselling of the children.  She also sought orders that the father attend on a family therapist and obtain a report

   … as to his progress in:

   (i)Gaining insight into the effect on the children of:

   A.Emotional manipulation;

   B.Intrusive parenting; and

   C.Emotional abuse.

   (ii)Acceptance of the children’s living arrangements in the care of the Mother.

4. In relation to X, Y and Z she sought interim orders that they spend time with the father on Sunday from 11 AM to 4 PM and at other "reasonable times" by agreement.

5. In the mother's two affidavits filed in support of her application she made a number of serious allegations.  She alleged that the father had made repeated applications for domestic violence orders that were "completely false". She referred to an application for a domestic violence order dismissed by Judge C in the Local Court at City F on 4 June 2020, another application for domestic violence order dismissed by Judge D on 5 November 2020 and another application for domestic violence order which was made subject to a stay order by Judge E on 1 September 2020.  The mother more generally alleged that the father was engaged in a process of alienating the children from her and she thought the children should attend counselling.  She referred to expert advice to that effect, although there was no such advice put into evidence. She also alleged the father refused to accept that W suffered from asthma and needed to be treated with Ventolin.

6. In the father's response he sought an injunctive order restraining the mother from causing bodily harm to the children or using physical discipline.  He also sought orders permitting him to obtain a passport for the children and to permit overseas travel. He sought interim orders for the preparation of a family report and the appointment of an independent children's lawyer and an order for costs against the mother.

7. In the father's affidavit in support he made various allegations against the mother including “lax parenting”.  More substantially, he alleged that the two younger children, W and V had been hit by the mother hard enough to cause bruising. He alleged that on 8 November 2019 the mother had “caused” bruising on V and on 9 November 2019 “caused” bruising to W.  This was the subject of an application brought by police for a domestic violence order to the Local Court in City F on 4 June 2020.  Judge C dealt with this application and dismissed it, finding that a domestic violence order was not justified in the circumstances.  His Honour gave careful attention to the matter.  He heard evidence from the mother and she was evidently cross-examined.  Z, an older daughter of the parties, participated in a police interview, although it does not appear that she gave oral evidence against her mother. His Honour also mentioned that Territory Families had investigated the matter and apparently were not satisfied the allegations of “harm” were made out for the purposes of the Care and Protection of Children Act 2007 (NT).

8. Judge C generally accepted the claims against the mother. He apparently accepted that V had bruising to the left chest area and that W had bruising to the upper buttock.  He appeared to accept Z’s statement to police that she had seen the mother pinching W causing her to bruise and her claim that her mother "drags W around."  The mother denied causing any bruising to W by pinching her or dragging her along the hallway, as was alleged, and denied pinching V.  His Honour said that he accepted the claims of the children and he disbelieved the mother.  Nevertheless, he was not satisfied that the threshold for an order under the Domestic and Family Violence Act 2007 (NT) was satisfied.

9. On 24 June 2020 the father claimed that he noticed further bruising on V's arm and on 26 June 2020 he applied for a further domestic violence order.  He said that he also noticed another bruise on V's right upper buttock.  This application was heard before a different judge, Judge D, and dismissed on 5 November 2020.  The mother's affidavit filed on 6 November 2020 annexes what appears to be an uncorrected draft transcript of his Honour’s reasons. According to the transcript Judge D found that the father "lacked credit" and he was "evasive in his answers, and obviously unhappy that previous domestic violence orders had not been confirmed by this court".  He was critical of the father for involving V in a police complaint and taking her to police stations and hospitals.  His Honour did not accept the evidence of the children because it was inconsistent. 

10. I was also informed by the mother in her affidavit that on 1 September 2020 another judge of the Local Court in City F, Judge E, had stayed an application of the father for a domestic violence order.  The details of this were not before me but I understood it was said that this application was stayed because it referred to the same circumstances as a previously dismissed application. 

11. Reference should also be made to the response of Territory Families to the notices of risk filed by the parties.  The response outlines some 28 notifications to Territory Families between August 2013 and 2 September 2020 alleging that the children (one or more of them) were at risk of harm or neglect.  Of those notifications, two were substantiated, one made on 21 March 2016 and one made on 8 May 2019.  In relation to the first notification, Territory Families substantiated emotional abuse due to nonviolent parental conflict with both parents held responsible and in relation to the second notification emotional harm was substantiated with both parents held responsible. A notification made on 24 July 2020 was said to be “under investigation”.

12. An order pursuant to s 69ZW was made directed to Territory Families. The material produced in response was the subject of detailed submissions. Of six (according to the mother) or seven (according to the father) notifications to Territory Families in 2020 all except two were “screened out” with no action taken.

13. A notification was made on 24 July 2020, apparently by the father, in relation to bruises seen on V. This, and other allegations made by the father, were investigated by Territory Families. Territory Families, while expressing concern about the harmful effect of parental conflict, concluded that none of the children were in need of protection under the Care and Protection of Children Act. This matter seems to have been the same as the one considered by Judge D in November 2020. 

14. A further notification made on 2 September 2020 was “screened in” for investigation. Territory Families again expressed general concern that parental conflict was likely harmful for the children but no further action was taken. 

15. I was referred to a multitude of cases by the mother's counsel about the so-called rule in Rice & Asplund [1978] FamCA 84. In my view, it is not necessary to refer to that material in any detail. It is well understood that the governing principle in deciding whether or not to reopen a case where there are existing parenting orders is ultimately that the best interests of a child or children are the paramount consideration. How a court determines what is in the child's best interest is set out in s 60CC of the Family Law Act 1975 (Cth). The primary considerations are the benefit to the child of having a meaningful relationship with both of the child's parents, the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence with the latter consideration to be given greater weight.

16. The decision in Rice & Asplund [1978] FamCA 84 emphasised that continued, repeated or unnecessary litigation about children is likely to be psychologically harmful to those children and that factor should be given significant weight by a court. Consequently, a court will not usually consider reopening a parenting case unless there is some relevant or significant change in circumstances. Further, the court will ordinarily reopen parenting issues only if it is "on the cards" that some other orders will be made.  Obviously, a change in circumstances, however significant, that is not likely to result in any variation of existing orders or only a small variation would not justify reopening parenting issues or every parenting issue.  In my view, that is the case here. 

17. The mother seeks orders that the older three children who currently live with the father should live with her and she should have sole parental responsibility for those children.  The existing orders, made on 11 April 2018, provide that the children should determine with whom they wished to live once they reach 14 years of age.  Three of the children are now 14 years or older.  It is evident that X and Z are estranged from the mother to some degree.  Y spends significant time in both households.  In my view, it is unlikely on the material before me that a court would make an order that the older three children return to live with the mother if that were against their wishes. For similar reasons, I see no prospect of an order for sole parental responsibility for the children to repose in the mother.

18. Nevertheless, there may be some point in consulting the older children, particularly X and Z, with a view to finding out if there is any utility in offering counselling to repair their relationship with their mother. I propose to make an order pursuant to s. 11F that they attend on a family consultant for that purpose.

19. The father consented to an interim order that he was to permit W to use Ventolin as required for symptoms of cough, or shortness of breath, or any other medication prescribed for that purpose. I would be surprised if he opposed that as a final order. If he does he should notify my chambers within 7 days.

20. It is unnecessary to make an injunctive order, as sought by the father, restraining the mother from physically disciplining the children as such an order was made in respect of both parents by consent by the Family Court on 11 April 2018.

21. In relation to passports for the children there is obviously no urgency about that at the moment but given the ages of the children I would expect that they may wish to travel for holidays or other purposes once the present travel restrictions are lifted. If the parties are unable to reach agreement about that issue they should notify my chambers within 7 days and I will list the matter for argument.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated: 22 January 2021