Earle and Polley - [2017] FamCA 921

FAMILY COURT OF AUSTRALIA

EARLE & POLLEY

[2017] FamCA 921

FAMILY LAW – CHILDREN – Interim application by mother seeking a summary dismissal of the father’s application pursuant to the rule in Rice & Asplund (1979) 90-725 seeking to change final parenting orders about two and a half years after the orders had been made by consent prior to the hearing of the matter – Previous proceedings involved allegations of sexual abuse by the father - Previous proceedings involved allegations of controlling and/or violent behaviour by the father – Consent orders provided that children live with the mother and that father spend supervised time with the younger child – Consent Orders provided for the possible reintroduction of the elder child to the father with a view to the father spending supervised time with the child – Where the Rice & Asplund argument was heard as a preliminary matter - Where the Court was not satisfied that there had been a sufficient change of circumstances since the final order were made to justify a re-litigation of the issues – Where Court dismissed the father’s application

Family Law Act 1975 (Cth)

APPLICANT:

Ms Earle

RESPONDENT:

Mr Polley

FILE NUMBER:

HBC

866

2013

DATE DELIVERED:

13 November 2017

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

17 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr John Munro

SOLICITOR FOR THE APPLICANT:

Munro & Associates

COUNSEL FOR THE RESPONDENT:

Mrs Kate Mooney

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Wallace Wilkinson & Webster
Mrs Van Meer

Legal Aid Commission

Orders

The father’s application for final parenting orders filed 1 June 2017 is dismissed.
The hearing date set for 5 March 2018 for five (5) days is vacated together with directions for filing affidavits.
The request for a family report is discharged.
All extant applications, except for any question of costs, are dismissed.
Any application for costs to be made in accordance with the Family Law Rules 2004.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend. `

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Earle & Polley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 866 of 2013

Ms Earle

Applicant

And

Mr Polley

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

This interlocutory proceeding is an application in a case filed on behalf of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Earle and Polley

Details

AGLC: Earle and Polley [2017] FamCA 921
Case: [2017] FamCA 921
Decision Date: 13 November 2017

CaseChat Overview and Summary

This matter came before Benjamin J concerning an application by the father for final parenting orders. The dispute centred on parenting arrangements for two children, following the parties' separation in 2013. The mother had previously asserted allegations of sexual abuse against the father concerning the elder child, and these allegations, along with the mother's assertion of unacceptable risk to the children's well-being, remained in place.

The court was required to determine whether the father's application for final parenting orders, which sought equal shared parental responsibility and significant unsupervised time, should proceed. This involved considering whether there had been a sufficient change in circumstances since the previous parenting orders were made, particularly in light of the serious allegations and the parties' prior settlement. The father's application, if successful, would reopen all issues left undetermined in the previous proceedings.

Benjamin J dismissed the father's application, applying the principles from *Searson & Searson*. The court found that the father's application was not dismissed for a technical reason, but rather on the merits, as there was an insufficient change in circumstances to justify further litigation. The court noted that the previous settlement involved supervised time for the younger child and a continuation of endeavours to ascertain the elder child's willingness for supervised time, with the father accepting that unsupervised time would place the elder child at an unacceptable risk of emotional harm. The court concluded that the child's interest in avoiding further litigation outweighed the father's application.

The father's application for final parenting orders was dismissed, and the hearing date set for March 2018 was vacated. The request for a family report was discharged, and all extant applications, except for costs, were dismissed. It was certified that it was reasonable to engage counsel to attend the proceedings.

Orders

Orders of the court

The father’s application for final parenting orders filed 1 June 2017 is dismissed.

The hearing date set for 5 March 2018 for five (5) days is vacated together with directions for filing affidavits.

The request for a family report is discharged.

All extant applications, except for any question of costs, are dismissed.

Any application for costs to be made in accordance with the Family Law Rules 2004.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend. `

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In the recent Full Court determination of Searson & Searson, [2017] FamCAFC 119 (4 July 2017) Murphy J said, at paragraph 11:-11. … [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.(original emphasis) As best I can, I will try and apply these principles to the facts as agreed and as asserted by the father. The parties commenced a relationship in 2005 or 2006, and the elder child was born in 2007. The parties married in 2008 and the younger child was born in 2010. The parties separated on 29 July 2013. At that time the mother asserted that the elder child had been sexually abused by the father and there is evidence as to the allegations made, although there has been no determination. In this case the previous hearing was to be a hearing under the Magellan protocol where there were serious allegations of unacceptable risk to be determined. The previous trial was listed for five days and the parties settled the parenting issues on the basis that the younger child would see the father for about six hours once a fortnight and have one telephone conversation on a weekly basis. With the elder child there was to be a continuation of the endeavours to see whether she was willing to see the father and if so she would then spend supervised time with the father in the same way as was arranged for the younger child and one telephone call per week. The father did not concede that he was at unacceptable risk to the children. He conceded, presumably for pragmatic reasons, that there ought to be supervision and that his time with the elder child would not happen, given his acceptance that such time would place the elder child at an unacceptable risk of emotional harm. It was agreed by the parties that the mother’s allegation that the father is at an unacceptable risk to the physical, psychological and emotional well-being of the children and the mother remain in place. The father’s application is not in any way limited. He seeks orders for equal shared parental responsibility, and significant and substantial unsupervised time. The impact of such an application would mean that all of the issues which were left undetermined from the previous proceeding would be at large. It was submitted to me that there would need to be an updated report from Dr D and it was submitted to me that a family report would be necessary.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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