Earle and Polley
[2017] FamCA 921
•13 November 2017
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 | of | 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 SOLICITOR FOR THE INDEPENDENT | Wallace Wilkinson & Webster 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 Ms Earle (‘the mother’) for a summary dismissal of an originating proceeding filed on behalf of Mr Polley (‘the father’). The father is seeking changes to parenting orders made about two and a half years after final parenting orders had been made by consent. These consent orders related to the parties’ two daughters, B aged 10 (‘the elder child’) and C aged seven (‘the younger child’).
The parents separated in July 2013 and proceedings had previously been commenced between the mother and father later in 2013.
In those proceedings the mother had alleged that the father had sexually abused the elder child and that he presented as an unacceptable risk to both children in terms of the alleged abuse. Further, the mother alleged that the father had engaged in controlling and/or violent behaviour towards her. The father denied all of the allegations.
The previous proceedings were designated to the Magellan list of this Court and an Independent Children’s Lawyer was appointed.
A report was prepared by a forensic psychiatrist, Dr D, and the matter was listed for final hearing in March 2015.
On 16 March 2015 the parenting proceedings were settled. At that time of settlement each of the parties were legally represented and the settlement took place in the shadow of that final hearing, which was then due to commence. The consent orders provided in essence:-
(a)that the mother have sole parental responsibility for both of the children;
(b)that the children live with the mother;
(c)that the younger child spend supervised time with the father; generally on each alternate Sunday from 9.00am until 3.15pm and such time be supervised; and
(d)that the father telephone the younger child each Wednesday between 6.00pm and 7.30pm.
The orders provided for a continuation of family therapy to consider the possibility of reintroduction of the elder child to the father. This was with the view that, if the elder child, then aged six almost seven, was open to such supervised time and communication such time and communication should be on the same basis as the younger child. The orders contained various provisions in relation to the question of the possibility of reintroduction of the father to the elder child.[1]
[1] Orders 4, 5, 6, 7, 8 and 9 of the substantive orders made 16 March 2015.
The orders also provided various injunctions to protect the children.
By his initiating application filed 1 June 2017 the father sought different parenting orders, including the discharge of the substantive consent orders. He sought orders that he and the mother have equal shared parental responsibility and that there be further steps with regard to the reintroduction of the elder child to him, a change to the arrangements so that the younger child spend alternate weekends with him, which would step up to an arrangement for alternate weeks from Thursday until Monday.
The orders provided an arrangement for the elder child to spend time with the father progressing to a similar time as with the younger child.
The mother asserts that the father’s application ought to be summarily dismissed pursuant to the so-called principles set out in Rice & Asplund (1979) FLC 90-725. This hearing relates to the determination of that summary dismissal application.
It was the submission by counsel for the father that the proceedings should continue to hearing, which had been tentatively listed for March 2018. It was the submissions by counsel for the mother that the proceedings ought to be dismissed.
An Independent Children’s Lawyer was appointed and her response to this part of the proceedings was ambivalent. She made submissions, but proffered no view as to whether the summary dismissal application was supported or not supported.
It was asserted by counsel for the father and conceded by counsel for the mother and the Independent Children’s Lawyer that the father’s evidence, for the purpose of the summary dismissal application, ought to be treated at face value.
Legal Principles
It is always open for parties to come back to a court exercising jurisdiction under the Family Law Act 1975 (Cth)(‘the Act’) regarding the parenting arrangements for children under the age of 18 years. The Full Court in Rice and Asplund (supra) set out the principle about re-litigating parenting orders. Macmillan J in Newton & Henzel [2016] FamCA 323said:-
12. In Rice & Asplund Evatt CJ said at page 78,905 as follows:
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…
13. In McEnearney & McEnearney (1980) FLC 90-866, referring to the decision in Rice & Asplund, said at page 75,499 as follows:
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
14. Strauss J said in Freeman & Freeman (1987) FLC 91-857 at pages 76,470 to 76,471 in relation to the effect of ongoing litigation as follows:
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 well-being. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
15. Although there have been amendments to the Act, not only does the rule in Rice & Asplund apply but as pointed out by the Full Court in DL & W [2012] FamCAFC 5; (2012) FLC 93-496 the provisions of s 69ZN of the Act, which sets out the principles the court must apply in child related proceedings, apply to a hearing where the rule in Rice & Asplund is being relied upon. The first of those principles set out in s 69ZN is that the “… the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings”.
16. The rule in Rice & Asplund may be applied as a preliminary matter or at the end of a full hearing. As Warnick J observed in SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 at paragraph 48, which has been endorsed by the Full Court (see Marsden v Winch [2009] FamCAFC 152, DL & W (supra)):
(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice & Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) “Shorthand” statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
17. Warnick J in support of his observations with respect to the application being dealt with on its merits also said that:
71. An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
81. … 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.
…
84. … The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.
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.
BACKGROUND
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.
It is clear that the mother’s concerns about the father have not ameliorated in the two and a half years since the consent orders were made. As such, I determined that it was appropriate to hear the application for summary dismissal of the proceedings well in advance of any possible hearing date.
So as not to delay any hearing that might occur this Court had allocated a hearing date in March 2018 and had requested a family report, although asked that the interviews take place after the hearing of this application.
For the purpose of this interlocutory hearing I have treated the father’s evidence at its highest.
On 16 March 2015 court orders were made in the Family Court by consent and in the absence of a hearing all outstanding extant proceedings were dismissed. Each of the parties was legally represented and an Independent Children's Lawyer had been appointed and was representing the interests of the children.
After the orders were made, the father and his then partner separated in late April 2015. The father and his partner reconciled several weeks later.
On 29 June 2015 Dr E met with the mother and father separately. On 13 July 2015 Dr E met with the elder child, and sent an email to the parents suggesting a question/answer format and for the father to provide photos and videos of past times.
On about 19 July 2015 the father and the elder child chanced upon a meeting at a shopping centre. The elder child smiled and waved to the father.
Dr E met with the elder child for a second time on 21 July 2015. Dr E emailed the parents indicating that the meeting was positive, with the elder child remaining buoyant and playful during questions and answers and while examining photos.
In August 2015 the mother permitted the father to attend changeover with the younger child for the first of many occasions, despite paragraph 10(e) of the Order made 16 March 2015 which provides he must be 500 metres away.
On 28 September 2015 the elder child again saw Dr E, who in turn reported to the parents that the elder child elected to receive gifts forwarded by the father and happily took them home. The father contended that the mother later asserted that the elder child was pressured to accept gifts.
On 20 October 2015 the mother reported that she passed on a birthday message from father to that child.
On 5 January 2016, 20 January 2016 and in early February 2016, the elder child and the younger child saw the father’s partner at the home of the children’s paternal grandmother.
On 22 February 2016 a conference was convened by the Independent Children's Lawyer and it was agreed that the elder child would again see Dr E, commencing May 2016.
In February 2016 the father created a journal which his mother, and on one occasion his partner, relayed to the children.
On 28 February 2016 the father saw the mother and the elder child at a public swimming pool. The father deposed that:- [2]
73.On 28 February 2016 [the partner] and I had our normal contact time with [the younger child]. The morning was spent doing some shopping for picnic supplies and then playing various games back at home. In the afternoon, [the younger child] decided she wanted to go swimming so we all went to the H Centre to do that. After we got changed, we were walking up to the children’s pool with [the younger child] happily swinging between us when I noticed [the mother] walking ahead of us. When we got to the top of the stairs we saw that [the elder child] was sitting in the children’s pool under the water buckets, neither she nor [the mother] had seen us at that stage.
74.[The partner] took the towels and bags over to her mother (who was sitting close by). I went and sat down about 5 metres away from [the elder child] and encouraged [the younger child] to go and say hello to [the elder child]. I realised later that I should not have done this as it was contrary to the Order however as I had not seen [the elder child] since July 2013 and I reacted spontaneously.
75.[The younger child] happily started over and [the elder child] saw her immediately and waved happily to her, she then saw me and looked initially surprised, hesitated and then smiled shyly, I smiled back and waved. [The mother] also noticed me about the same time and immediately went over to [the elder child] and talked to her briefly, [the elder child]’s body language then immediately changed and she hunkered down, wrapped her arms around her knees and stopped looking at us. I said "hello" to [the mother] and she responded with "hi" as she took [the elder child] by the hand and pulled her away. Whilst she was doing this [the younger child] was hovering nearby and [the mother] pointed at her and said something which I did not hear and then turned her back and took [the elder child] away to the change rooms.
76.[The younger child] then came back over to me and over the next 10 minutes went rapidly downhill, she closed down completely, stopped playing, snuggled into me and started shivering. I took her over to the cafe, wrapped her in a towel and spent the next fifteen minutes holding her tightly and quietly reassuring her that Mummy and Daddy both love her and [the elder child] very much. [The mother] and [the elder child] then returned from the change room and we again waved to them. [The elder child] was completely closed down by then, just staring at the ground as she walked along holding [the mother’s] hand. [The mother] returned our wave but didn't come within speaking distance and immediately left with [the elder child].
77.[The younger child] appeared to slowly return to some degree of normality and I engaged her in some quite play when she was ready to do so. She said very little during this time but towards the end she said "we saw Mummy" with some degree of enthusiasm, I agreed that we had and that it was nice to see her and [the elder child] and that I hoped that we could see lots more of them again soon. By then we were back in the pool and [the younger child] had returned almost to normal.
[2] Father’s affidavit filed 1 June 2017.
For the purpose of this determination I have treated this evidence as uncontentious. Even on the father’s version it was a worrying interaction, particularly given the nature of the earlier proceedings and the clear imperatives of the consent orders. The father’s evidence was that the mother was upset, as were the children. No meaningful or satisfactory explanation was given by the father, apart from his desire to see the elder child, as to why the father failed to comply with the consent orders. The mother suffered an anxiety response in the elder child’s presence after seeing father.
On 18 May 2016 the younger child said to the father “I wish I could stay at your place for lots of days”.
On 29 May 2016 the father’s partner attended the elder child’s cross-country event.
As arranged in May and June 2016 the elder child again attended Dr E. Dr E reported that after the pool incident the elder child appeared to have regressed and was again experiencing an anxiety response to father.
On 15 July 2015 the elder child saw the father’s partner and the younger child at her paternal grandmother’s home. The elder child commented on a treasure hunt the father had created and asked the father’s partner to give the father a little box bed she had made.
On 11 August 2016 the mother provided a birthday card and present from the younger child and the elder child to the father. The elder child drew a small picture in a card
On Father’s Day 2016 the mother provided, and the younger child gave to the father a card with drawings and a message from the younger child. It also contained a drawing from the elder child in it
In early September 2016 the father gave the elder child some chocolate and a card via the paternal grandmother. The elder child sent back some drawings and a note. The exchanges of notes, and the journal continued through to November that year.
In October 2016 the father returned overseas and the mother agreed to allow the father’s partner to spend time with the children. This was followed in early November 2016 with the mother permitting the father’s partner to take the elder child and the younger child to the residence of the father and his partner, but in the absence of the father. The father telephoned that home and, in contravention of the consent orders and in the absence of the mother’s knowledge, he spoke with the elder child.
On 20 November 2016 the father’s partner was spending time with the younger child and the elder child. The father telephoned from overseas and spoke with both of the children. This was likewise in contravention of the consent orders and in the absence of the mother’s knowledge. The father said that the elder child had asked the father’s partner if she can have her own room in the anticipated home of the father and his partner.
Three days later on 23 November 2016 the mother was informed of the telephone communication between father and the elder child. The arrangement for the elder child to spend time with the father’s partner was terminated.
On 22 January 2017 the father bought a present for the elder child after the younger child said that the mother will say it is all right.
Over Easter 2017 the mother permitted the father to send the elder child Easter eggs and a small present.
On 14 May 2017 the younger child said to the father that “I think it would be fair if I could stay with Mummy and you for half the time”.
On 11 June 2017 the younger child said to the father, “I wish I could have sleepovers at your place”.
On 11 August 2017 the younger child said to the father, “you’re the best Dad, I wish I could have more time with you”.
On 9 July, 23 July, 6 August, 11 August, 17 September, 24 September, 8 October 2017 changeovers in respect of the younger child occurred directly between the parents.
On 6 August 2017 the mother permitted the father to buy a small present for the elder child
On 17 September 2017 the mother accepted a small present which the Father had bought for the elder child.
These are some of the facts upon which this issue is to be determined. This is not to be regarded as findings of fact, as the mother has denied some and sought to contextualise others. However, I reiterate that for the purpose of this interlocutory determination I have treated them as uncontroversial.
THE EVIDENCE
The father relied upon the following:-
(a)his affidavits filed 1 June 2017 and 2 October 2017;
(b)the affidavit of Ms F (‘the partner’) filed 1 June 2017;
(c)his initiating application filed 1 June 2017;
(d)the affidavit of Ms G (‘the paternal grandmother’) filed 10 October 2017;
(e)the single expert report of Dr D (‘the single expert’) dated 17 April 2014; and
(f)Dr E’s reports of 29 August 2014 and 12 October 2014.
The father tendered in evidence his written submissions (case outline),[3] and the text messages that passed between the father and the mother between 1 January 2017 and 8 October 2017. There are some approximately 250 text messages between the father and the mother. These messages are respectful exchanges between the parents regarding arrangements for time and communication between the father and the younger child.
[3] Exhibit E3.
The father tendered in evidence some emails between Dr E and the father, one which appeared to be from September or October 2015.[4]
[4] Exhibit E7.
In addition the father tendered a document containing the text messages between the parties from 14 January 2017 until 13 October 2017. This contained about 85 messages between the father and the mother. Again these messages went to the arrangements in relation to the younger child seeing the father.
On the surface these messages seemed respectful and civil, at times they contained photographs. There was an exchange of emails between the parties on 23 and 24 June 2017 following the recommencement of the proceedings which was outside of the scope of the parenting arrangements and reflected the position of the parties as set out in their affidavits. However, apart from that and a few other emails following that event, most of the emails related to the parenting arrangements.
In fairness to the mother there were also a series of telephone calls which were not caught by the emails or text messages.
The father
In his substantive affidavit filed 1 June 2017 the father set out a background denying the allegations of sexual abuse and controlling behaviour. He provided a background of the parties during their relationship and after separation.
He complained that the mother had refused either his partner or the paternal grandmother as supervisors. This ought to be seen in the context that it was made clear that neither of those people would be considered as suitable for supervisors without the mother’s consent.[5]
[5] Order 10(c).
The father’s evidence is that the mother has facilitated time between the children, including the elder child, and his partner and communication with the paternal grandmother. The time with the father’s partner ceased in late 2016 when there was the breach of the order to which I earlier referred.
The father set out a week by week, event by event history of the time he spent with the younger child. He also set out the endeavours that he and his partner embarked upon, in accordance with the rules, to consider the possibility of the elder child spending time with him.
There was an event on 26 February 2016 to which I have already referred. The father acknowledges that he should not have breached the order.[6]
[6] Paragraph 74 of father’s primary affidavit.
In support of his application to spend time with the elder child the father relied upon a report from Dr E, which included the following in her June 2016 report:-[7]
…Unfortunately, the process has been unsuccessful in re-establishing meaningful time between [the elder child] and [the father].
As you are aware [the elder child] is continuing to refuse to spend time with [the father] or have direct communication with him. It was positive to note that [the elder child] expressed interest in the father’s travel to [Asia] and work [overseas]. The most promising interactions that I have had with [the elder child] were when she engaged with question and answer sessions at Forensic Clinic, during which she would pose questions to her father (via me) and I would seek responses from her father and questions in return. [The elder child] presented as engaged in this and genuinely interested and enjoying the exchange. She did not express anxiety or fear of the father during this process. She was open to seeing photos of her with her father from the past, and spoke about memories such as getting dressed up in her father’s ‘wet weather’ gear.
Unfortunately, in more recent times, [the elder child] appears to have regressed in her interest, and her anxiety has returned. A pivotal event appears to have been when she was in the wading pool at Hobart [H] Centre, and unexpectedly saw her father, [his partner] and [the younger child] there. Unfortunately, [the mother] experienced an anxiety response and removed [the elder child] from the area. This event appears to have reinforced [the elder child’s] anxiety response to the father.
My observation is that since [the elder child] has been living in the home of her maternal grandparents, she has formed a close attachment to her maternal grandfather and views him as a father figure. [The mother] had advised me that it is generally routine for [the elder child] and her maternal grandfather to spend 1:1 together each night for several hours, whilst [the mother] spends 1:1 time with [the younger child]. [The mother] expressed that this is how she was raised and she used to spent similar 1:1 time with her father. Hence, [the elder child] has formed strong attachment to her maternal grandfather, and noted that she would miss him very much whilst he was on an overseas holiday.
I proposed to [the mother] that it would be helpful for me to extend the reunification process to include her parents, and potentially [the father’s] parents to, in order to have unified strategies to repair [the elder child’s] relationship with [the father]. [The mother] advised me she has sought advice from her lawyer and psychologist, and declined this proposal, it was my observation that my proposal caused [the mother] anxiety.
It was clear to me that [the mother] and her extended family believed that [the elder child] was sexually abused by [the father], and that she continues to remain at risk of harm (e.g. psychological, emotional, sexual) in his company. Hence, from their perspective, they are acting protectively.
This is a very difficult matter, clearly causing ongoing distress for [the mother], [the father] and [the elder child]. My view is that unless all of the significant adults in [the elder child’s] life form a shared view regarding the benefits of [the elder child] being able to enjoy safe and meaningful time with the father, there will be no further progress in this matter. In my view, given that [the younger child] is spending time with her father, and [her father’s partner] is acting protectively, there is a framework in which safety concerns could feasibly be managed. The parties are welcome to utilise [J Clinic] as a bridging and “safe place” for [the elder child] to communicate with her father.
[7] Appendix D to the affidavit of the father filed 1 June 2017.
The father said that he wanted the process to continue beyond July 2016.
He provided evidence of his interaction with the elder child through pictures and cards, to which I have referred earlier.
The father deposed that in October 2016 he worked overseas for a period of time and asked if it would be appropriate for his partner to continue seeing the elder child. This approach was accepted. The mother, arranged for both children to see his partner and his partner facilitated a number of telephone calls between the father and the elder child, contrary to the orders made the preceding year.
The father deposes that at the time of the 2015 hearing his relationship with his mother had been poor, if not worse, and that their relationship has now been reconciled.
The father conceded that he was physically violent to his mother on three occasions during 2015, but he has otherwise never assaulted his mother or been otherwise involved in assaults.
In his second affidavit filed 2 October 2017 the father says that his relationship with the younger child is developing and gives examples of the younger child saying to him that she wants to spend more time with him, including overnight time and longer periods of time.
His evidence is that whilst not perfect the arrangements regarding telephone calls and supervised times are operating well in accordance with the orders which were put in place.
The father’s partner
The father’s partner provided evidence contained in her affidavit filed 1 June 2017. She has three children, the elder of which is aged 18 and was travelling in Europe and there is a youngest son aged 11 and a daughter aged 14.
The father’s partner deposes that after the terms of settlement between the mother and the father in March 2015 her relationship with the father came to an end. They reconciled about four weeks later. She provides evidence that the mother enabled the father to take the younger child to say goodbye to her paternal grandfather in August 2015. She provided evidence that the arrangements between the father and the younger child were progressing in accordance with the terms of the orders.
The father’s partner was at the swimming pool in February 2016 when the meeting with the elder child occurred. The father’s partner observed that the mother looked stressed at the time, although she waved and smiled as she left.
The father’s partner provided evidence of the exchanges between both children and the father and said that the mother had enabled her to spend time with the elder child whilst the father was overseas. The father’s partner facilitated the elder child having telephone communications with the father.
Given the construct of this process I accept that the father’s partner did not know the precise details of the orders, although it is clear to me that the father did know of these orders. For the purpose of this determination I have treated the father’s partner’s evidence as being uncontentious.
Dr E
Dr E had been requested to assist in the possible reintroduction of the elder child to the father. Her evidence contained in her affidavit sworn 29 August 2014 and the report attached to it dated 29 August 2014 were in evidence before me. That report, which was relied upon by the father, showed that it was the opinion of Dr E that:-[8]
…it would be psychologically harmful for [the elder child] to be forced to have contact with the father when she had so clearly and consistently communicated her views to multiple parties, including directly to me.
[8] At page 13 paragraph 10.
There had been a history of endeavours to re-introduce the elder child to the father.[9] Dr E also provided an updated report dated 10 October 2017, which was attached to her affidavit filed 11 October 2017. In that report she said:-
4.In summary, the reunification between [the father] and his daughter [the elder daughter] was abandoned in June 2016. I have had no involvement with the parties since that time, aside from the very recent email correspondence pertaining to these proceedings, which are included in my file.
5.The reunification attempt, which was focused upon [the elder child] being able to spend meaningful time with the father, or at least engage in a meaningful regular communications, failed. As I communicated to the parties by letter in June 2016, there had been some positive signs during the process. However, [the elder child] regressed and was observed to strengthen again in her resistance to see the father and communicate with him. This regression appeared to follow an unfortunate incident at the [H] Centre when she was in the wading pool, and expectantly saw her father and [the father’s partner] and [the younger child] there. Unfortunately, [the mother] experienced an anxiety response and removed [the child] from the area. This event appeared to have reinforced [the elder child’s] anxiety response to her father.
6.I also identify that while [the elder child] has been living in the home of her maternal grandparents, she has formed a close attachment to her maternal grandfather and views him as her father figure (“Dad Dad”), hence essentially replacing [the father’s] role in her life. I proposed to [the mother] that that would be helpful for me to extend the reunification process to include her parents, and potentially [the father’s] parents to, in order to have a unified strategy to repair [the elder child’s] relationship with [the father]. [The mother] advised me that she had sought advice from her lawyer and psychologist, and declined this proposal. It was my observation that the proposal caused [the mother] anxiety.
7.It is clear to me that [the mother] and her extended family believe that [the elder child] was sexually abused by [the father], and she continues to remain at risk of harm (e.g. psychological, emotional and sexual) in his company. Hence, from her perspective they are acting protectively. The maternal family appeared to view my role as complicit with the “abuser” and that I was placing [the elder child] in harm’s way by trying to rebuild her trust in her father. I understand that position.
8.My view is that unless all of the significant adults in [the elder child’s] life form a shared view regarding the benefits of [the elder child] being able to enjoy safe and meaningful time with her father, there will be no further progress in the matter.
[9] Affidavit of Dr E page 6 consent order noting the appointment of Dr E for the purpose of reintroducing the father to the elder child.
It is uncontroversial that the mother believed at the time that the March 2015 consent orders were put in place that the father had sexually abused the elder child and was violent to her.
It seems uncontroversial, particularly from the evidence of Dr E adduced by the father, that the mother continues in that belief.
The mother
The mother relied upon her case summary.[10] That document was tendered in evidence, although it is not evidence of the facts contained in it except where the chronology is consistent with that contained in the case summary of the father.
[10] Exhibit E4.
The mother relied upon the following documents:-
(a)her amended response filed 21 July 2017;
(b)her application in a case for summary dismissal filed 6 October 2017;
(c)her affidavits filed 21 July 2017, 6 October 2017 and 9 October 2017;
(d)the expert report of Dr E filed 12 October 2017;
(e)the expert report Dr E dated 29 August 2014;
(f)the Single Expert report filed 17 April 2014;
(g)the expert report of Dr K sworn 21 February 2014; and
(h)her Notice of Risk filed and dated 21 July 2017.
Late in the hearing the mother also relied upon an affidavit of Dr L filed 16 October 2017. Dr L is the mother’s treating psychologist and this evidence was the subject of an objection by counsel for the father.
I admitted the document into evidence, although given that there has been no determination in relation to the question of unacceptable risk or abusive and controlling behaviour, I have given it little weight for the purpose of this interlocutory hearing.
However, I accept that the mother has been treated by this psychologist between April 2010 and October 2017 and that she has attended 61 appointments over that period of time.
It seems uncontentious that the mother has struggled emotionally with the events surrounding the breakdown of her marriage with the father and these renewed proceedings. The restrained, but emotional email exchanges between the mother and father on 23 and 24 June 2017 and that between them on 13 July 2017[11] were indicative of the emotional struggle faced by the mother.
[11] Exhibit E6 pages 10, 11, 12, 13 of 22.
At the commencement of her submissions, counsel for the father asked me to accept that only one gift sent to the elder child had been returned, and that others had not been returned. For the purpose of this determination I have accepted that circumstance.
In terms of the background, for the purposes of this interlocutory hearing, I have adopted that asserted by the father. This should not be regarded as a finding of fact, but simply the basis upon which this application is to be determined.
It seems uncontentious that the father and mother were both born in 1976 and are both aged 40. Both are public servants.
Some weight was placed by the father on a ‘finding’ by Dr D that it was unlikely that he sexually abused the elder child. Given that such a determination would need to be a determination by this Court, I am satisfied that there has been no such determination. I accept that there were investigations by Child Protection Services and that no prosecution emanated as a consequence.
The father was charged with possession of a bestiality product, however he provided an explanation. For the purpose of this determination I have accepted that explanation.
Proceedings were commenced between the parties and an Independent Children’s Lawyer was appointed. The proceedings were listed for final hearing in March 2015. Each of the parties were competently legally represented and I accept that the minutes of orders were considered by both the parties, and that the Independent Children’s Lawyer recommend that the Court make those orders and they were made.
Part of those orders was the exploration of the possibility of the reintroduction of the elder child to the father. I accept that this was the continuation of a process which had started well before the consent orders were made. The parties were to employ Dr E, which they did. The orders provided that the parties should attend on Dr E on two occasions as reasonably directed by her within a twelve month period. Both parties complied with that order. The order further provided that the parties shall deliver the children to Dr E, as requested by her, from time to time, clearly within that twelve month period. That occurred.
There was an assertion that the mother had not complied with the orders as she did not engage in the further exploration of the possibility of the elder child’s reintroduction to the father, as she did not engage the broader family involvement set out in Dr E’s report of 30 June 2016.
It is not clear whether this recommendation was within the twelve month period or outside the twelve month period. For the purpose of this determination I have assumed it is within the twelve month period, but note that the mother was advised against this not only by her legal representative but her psychologist.
I do not accept that the mother has done other than to engage in the process which was envisaged by the orders. The mother and father met with Dr E in June 2015 and Dr E met the elder child in July 2015.
DISCUSSION
Counsel for the father asserts the elder child has repeatedly expressed a willingness and desire to re-establish and build a relationship with the father. On the father’s evidence I do not accept that is the case. The evidence of the father and of Dr E is that the child expressed some interest in the father, but then that regressed after the events at the swimming pool in early 2016.
I do not agree that the reintroduction progressed very well. It progressed, but it did not reach a stage where the child expressed a willingness to communicate or spend time with the father.
I accept that the mother has allowed the father to give the elder child some small gifts.
The father asserts that the mother and he have improved and reconciled their relationship. That is a stretch too far. The mother is accommodating the orders and ensuring that they occur. The mother has encouraged the children to have a relationship with their paternal grandmother and has encouraged the elder child to have a relationship with the father’s partner until there was a contravention of the order in direct communication.
I accept that the younger child has expressed a willingness to spend more time with the father, including overnight time. I do not accept that this is a significant change as the younger child, at all times prior to the making of the orders, expressed a willingness to have a good relationship with the father and this is not a significant change.
The father says that his relationship with his partner is now a happy and loving relationship, which was not the case at the time of the trial. The father and his present partner were in a relationship at the time the orders were made and his evidence was that that relationship broke down after the hearing. I do not accept that the circumstances amount to a significant change.
The father asserts, and for the purpose of this determination, I have accepted, that the mother has allowed him to attend and facilitate changeover.
I accept that the younger child’s time with the father is happy and that for the purpose of this determination that the relationship is happy and meaningful and it is a growing relationship.
The father asserts that the mother appears to have changed her attitude as to whether it is in the elder child’s best interest to have a relationship with the father. I do not accept that this is the case. The evidence is that the mother, at all times, has and continues to believe that the elder child is at risk of harm with any communication with the father.
The mother was willing to consider and engage in a process to see whether there could be a reintroduction of the elder child to the father. There is no evidence other than the mother engaged in that process. There is no evidence that the mother undermined that process. The only evidence is that the mother chose, on legal advice and on the advice of a psychologist, not to continue that course in and around mid-2016.
The father has not complied with the orders and I note the concessions made by him in written submissions.[12]
[12] Exhibit E3 page 7.
The father asserts that the elder child enjoys the communication that she has had with the father post consent orders. There is no evidence that she enjoys the communication. There is evidence that there is communication and that the child was not, at times, resistant to it. I also do not accept the submission that the elder child has ‘repeatedly expressed a willingness and desire to re-establish and build a relationship with the father’.
In the submissions by the father’s legal representative, the father asserts that the elder child has ‘undergone a radical change of heart’ which establishes a significant circumstance. He points out the evidence to which I have otherwise alluded.
It is an overstep to assert that the initial mild softening of the child’s view was ‘a radical change of heart’.
The father says that the elder child regressed after the mother experienced an anxiety response. There is some level, perhaps not intentionally, of blaming the mother when the father had breached the order and ought not to have approached the child. The father acknowledged that he ought not have done so. In any event the re-introduction failed.
It was again put that the mother had breached the final orders by not following the reasonable directions of Dr E. I do not accept that this was the case. Even if it was the case, given the significant involvement of the mother and the elder child it would not have changed this determination.
In terms of the younger child, very little has changed. The parties had agreed that, given the allegations, the younger child would see the father on a supervised basis and that would be re-visited when the younger child attained the age of 13 years. It was clear that this would give that child a chance to mature and develop. It would clearly enable her to build a relationship with the father and also build the skills to deal with the conflict and issues that had arisen between the parties.
Nothing of significance has changed except that the younger child has, unsurprisingly, expressed a view to spend more time with the father. That does not derogate from the protective systems which were put in place in March 2015.
In terms of the elder child, given the evidence of the Single Expert and the evidence of Dr E, the parties agreed that she ought not to be forced to spend time or communicate with the father. The parties agreed that there may be a possibility of re-introduction of the child to the father, and if that occurred then the elder child would spend the same supervised time with the father and have the same communication with the father as was the case for her younger sister.
It was open for the parties to seek interim orders in that respect, but they did not. They put in place final orders clearly for the understanding that if the re-introduction did not occur then the orders would stand, that is that the father would spend no time or have no communication with the elder child.
What has happened since that time, even on the father’s evidence, is not significant. I accept the submissions made on behalf of the mother that there is no evidence that the elder child seeks a change to the current arrangements. I accept further that the mother has not sought to limit the time or communication between the father and the younger child and has facilitated such communication and time.
Both of these parties consented to the current orders as final orders. Neither party complains that they did not understand the nature or effect of the orders. Both were legally represented and the children’s interests were legally represented at the same time.
There is no evidence other than that the children are managing well under the current arrangements and there is no suggestion that the children were suffering any emotional stress or other upsets. The mother had arranged for the children to see a psychologist and was criticised by the father for doing so in the absence of contact with him.
What then for this family if there is to be another full hearing?
As I have said earlier all of the issues raised up to the March 2015 settlement would need to be re-agitated. This would be a lengthy hearing, possibly up to five days. There would need to be expert evidence, and the parties and the children would need to be re-interviewed.
The father complains that the maternal grandfather has taken over the role of a father figure in the life of the elder child. Again, that is hardly surprising given the consent orders in to which the parties entered in March 2015.
I raised with the parties as to whether these issues would need to be agitated at the time when the younger child attains 16 which would be mid-2023.
The younger child would have spent eight years regularly visiting the father, albeit on a supervised basis. The elder child would be then aged about 16 and I accept the submission on behalf of counsel for the mother that it would be an entirely different case at that time.
In many ways the settlement in 2015 was designed to avoid the trauma to the parents and the children themselves, and as such the Court would need to be very careful in going back and revisiting all of those events at this time.
These orders have been in place for only two and a half years. In this case the father’s proposed orders involved a significant change to the way in which the children interact with him. The supervision would stop and parental responsibility would switch to equal shared parental responsibility.
It was envisaged by the parties that the supervision would continue. This was not a surprise to the parties and the parties clearly considered it by putting in place the provision that such supervision would be reviewed for both children at the time the younger child attained the age of 13.
I have accepted and applied the underlying basis of my consideration as being in the best interests of the children and each of them.
I had considered obtaining an up to date family report for the children however, given that I determine this on the basis of accepting the evidence of the father, for the purpose of this proceeding, at its highest, I did not see any point in terms of the children’s best interests in adopting that course.
To force this couple back to the hearing which could have been determined some two and a half years ago would invite ‘the endless litigation’ which was referred to by the then Chief Justice in Rice & Asplund (supra).
I have considered each of the changes submitted by the father and I am not satisfied that in relation to either child they amount to a significant change which would warrant this application to proceed to another hearing and revisit those issues which the parties had endeavoured to address by the consent orders of March 2015.
It is clearly not in the best interests of either the elder child or the younger child or both of them together.
I accept that the conduct of another trial would have a significant impact on these children, particularly the elder child, and given the evidence of Dr E such impact would be adverse in terms of that child.
Dealing with this application at an early date spares these children and their parents the trauma of another trial, and also the reporting and interviews which would be part of that process. The elder child would be sent back to an expert, such as Dr E, who is no longer undertaking such work. The father had the opportunity a few years ago to ventilate the issues he now seeks to revive; he chose the course that is set out in the consent orders.
In considering this determination I have applied the best interest principle as set out in the Act, but in the particular circumstances of these children.
The nature and degree of the changes sought are profound. The father seeks to jointly parent these children by having equal shared parental responsibility, where he recently agreed to sole parental responsibility in favour of the mother. On his evidence the mother is stressed or anxious in his presence, albeit she can conduct courteous email and text communication.
Having considered the evidence I am satisfied that there is an insufficient change of circumstances shown to justify embarking on another hearing. Further, I am convinced that protecting these children from further litigation is more in their interests than allowing the father’s application to continue.
Given all of those circumstances I will dismiss the father’s initiating proceedings, vacate the hearing date nominated for March of 2018 and discharge the order requiring the provision of a family report.
The appointment of the Independent Children’s Lawyer will expire by virtue of these orders.
I certify that the preceding one hundred and forty-seven paragraphs (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 13 November 2017.
Associate:
Date: 13 November 2017
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