GAINES & TEBBS (No.2)

[2021] FCCA 1300

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAINES & TEBBS (No.2) [2021] FCCA 1300

Catchwords:
FAMILY LAW – Parenting – where final orders were made in December 2018 after a hearing for children then aged 5 and 4 to spend no time with and have no communication with their father – where the issues of concern included the father’s mental health, drug and alcohol use and perpetration of family violence against the mother and a subsequent domestic partner – where the father filed a fresh application in August 2020 asking the court to make orders permitting him to spend time with the children – where the father said that he had sought assistance with his mental health, engaged in drug and alcohol counselling and completed a men’s behaviour change program – where the father failed to reveal that in 2019 he was charged with seriously assaulting the domestic partner who gave evidence for him at the 2018 hearing – father’s application dismissed pursuant to the Rule in Rice & Asplund – where the mother is fearful of the father and has previously moved house after he tracked her down – where a court which is asked to make a Location Order in the future if the father files a further application should give careful consideration to whether it is in the children’s best interests to do so.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Gaines & Tebbs [2018] FCCA 3925

Applicant: MR GAINES

Respondent: MS TEBBS

File Number: NCC 1116 of 2017

Judgment of: Judge Terry

Hearing date: 5 May 2021

Date of Last Submission: 5 May 2021

Delivered at: Newcastle

Delivered on: 7 May 2021

REPRESENTATION

The Applicant: In person

Solicitor Advocate for the Respondent: Ms O’Rourke

Solicitors for the Respondent: Legal Aid NSW

ORDERS

1. The father’s application filed on 22 July 2020 is dismissed.

2. The father’s application in a case filed on 7 December 2020 is also dismissed.

THE COURT NOTES THAT:

A.If the father files a further application in the future seeking a Location Order the Judge or Registrar who is asked to make the location order should carefully note that before making a Location Order the court is required to satisfy itself pursuant to s.67L that it is in the children’s best interests for the order to be made and the Judge or Registrar should carefully consider the reasons for this decision and the reasons for the decision of 18 December 2018 in making that determination.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1116 of 2017

MR GAINES

Applicant

And

MS TEBBS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and 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. This matter involves parenting arrangements for Y, 8 and X, 6. 

3. On 18 December 2018 I made orders after a hearing for the children to live with the mother, the mother to have sole parental responsibility and the children to spend no time with and have no communication with the father.

4. The case involved allegations about drug use and alcohol abuse but the most significant issue in the case was family violence.

5. On 8 August 2020 the father filed an application seeking fresh parenting orders. He proposed that the December 2018 orders be discharged. He is self-represented and the orders he sought were unusually worded but the effect of them was that he be able to commence spending time with the children, that in due course the time become unsupervised, that the children be able to communicate with him regularly by telephone and that the children be able to spend time with and have telephone communication with the paternal grandmother.

6. The father also sought shared parental responsibility although that was qualified to be “in due course”. 

7. The mother relocated after the hearing in December 2018 and the father did not know her whereabouts.  He obtained a Location Order and the mother was eventually served and 31 March 2021 she filed responding documents.  

8. The mother sought an order that the father’s application be dismissed pursuant to the rule in Rice & Asplund and that application was listed for hearing on 7 May 2021.

9. On 7 May 2021 the father asked that consideration of whether his application should be dismissed should be adjourned until after his appeal to the District Court against  the sentences of imprisonment recently imposed on him after he was found guilty of further family violence offences was determined.   

10. I told the father I was not going to adjourn the matter and was going to consider the mother’s application. 

Background

1. The mother and father were in a relationship between 2012 and 18 December 2015 and they have two children, Y born in 2013 and X born in 2014.  

2. After separation the father spent time with the children by agreement with the mother, and that continued until May 2016 when there was a serious incident at the mother’s home. 

3. Prior to the incident the father saw the mother at a party and made threats to harm her and burn her house down.

4. The mother left the party and went home but at 6.00am the following morning she woke up to find the father standing beside her bed.

5. The father assaulted her and threatened her with a knife. He was charged and the mother stopped allowing him to spend time with the children. 

6. After three months the mother agreed to a request by the paternal grandmother for the father be able to spend time with the children with the paternal grandmother present. The paternal grandmother quickly stopped taking part in the time. The mother nevertheless continued to facilitate the children spending time with the father, until December 2016 when Y told her that the father had hit her and pulled her hair.

7. The mother again ceased making the children available to spend time with the father and in April 2017 he commenced proceedings. 

8. Because of the allegations no interim orders were made for the children to spend time with the father. Instead a family report was ordered and prepared and a hearing was conducted in December 2018. 

9. The issues at trial included allegations about the father’s cannabis use, alcohol use and mental health but the most significant issue was the allegations about family violence.[1]

   [1] Gaines & Tebbs (2018) FCCA 3925

10. The family consultant made this recommendation in her report: 

    If the Court finds that the father poses an unacceptable level of risk of harm to the children, it is recommended that the children have no contact with the father.

11. The mother alleged there had been family violence during her relationship with the father but she did not go into much detail about that and in my judgment I said that could not make findings about that allegation. However the incident in May 2016 was very serious.

12. The mother’s evidence was that the father turned up at the party and said to her, “I’m going to slit your throat.  I’m going to burn your house down.”

13. The father made some admissions about that. In my 2018 judgment I  referred to the following passage in the family report:

    When asked if he had made threats to slit [the mother’s] throat following separation, the father said he was not sure. And when asked if he threatened to burn her house down, the father said he said this to the group the mother was with at her birthday party, and he then volunteered, “I remember I said I hate her and I am going to kill her, but I never meant it.[2]

    [2] Gaines & Tebbs (Supra paragraph 114

14. After the father made these threats the mother said that she was going home and left the party and this was followed by incident at her home. In my 2018 judgment I said as follows about this:

    The mother said that at 6.00am she woke to find the father standing above her screaming, “You fucking cunt. I’m going to fucking kill you.” She said she tried to push the father out of the room and he became very aggressive and slapped her face really hard. She said that he then picked up a kitchen knife and lunged at her, trying to stab her.

    The mother said that her friend came out and said, “What are you doing?” and the father ran off.[3]

    [3] Gaines & Tebbs (Supra) paragraphs 99 & 100

15. During the hearing the father denied that he had used a knife. However his then-partner Ms B, who gave evidence in his case, said that the father had told her that he had used a knife on that occasion and I was satisfied that the father had threatened the mother with a knife. 

16. Arising out of that incident the father was charged with common assault and stalk intimidate. He pleaded not guilty but he was found guilty after a hearing and placed on a section 9 good behaviour bond for 12 months. 

17. The mother alleged that this was followed by a series of incidents where she was stalked and harassed. In my 2018 judgement I said as follows:

    The mother said that was not the end of it though. She said that the father continued to stalk her after that incident. She said he would loiter near her house and she saw him walk past and look in the windows. She saw him drive past. She said she would hear him out the front screaming, “Fuck you, you fucking cunt”. She said that Y woke up and heard it and asked if it was the father. She said she heard glass shattering and found broken beer bottles. She also said that on occasion her tyres were let down. She said she sometimes reported these incidents to the police.

    The mother said that on 27 June 2016 the father came to the door even though an ADVO was in place as a result of the May 2016 incident. She answered and the father asked to see the children. The mother told him he should not be there and he began swearing and told the mother to “Fuck off”. The mother reported that to the police and the father was charged with contravening the ADVO and he was convicted and fined.

    The mother said that there was an incident at Court where she felt intimidated by the father’s behaviour because he seemed to be hanging about waiting for her. She said that at Court on 19 December 2017 she again felt the father was stalking her and alleged that he made a finger motion across his throat and as a result of that the mother applied for another ADVO, the first one having expired.

    ………………………..

    The mother also claimed that the father intimidated people she befriended on Facebook and made comments to men that she had any interest in to try and warn them off.[4]

    [4] Gaines & Tebbs (supra) paragraphs 108 to 110 and 112

18. In October 2016 the father commenced a relationship with a Ms D. They separated in 2017 and the father was charged with stalk intimidate in relation to Ms D.  An ADVO was also made for her protection and the father was charged with breaching that ADVO.

19. In my judgment I said as follows about the family violence issue:

    I accept the mother’s evidence about what happened in May 2016 and I accept her evidence about what happened after the incident in terms of the father stalking and intimidating her.

    I also accept that she is genuinely frightened of the father as a result of his behaviour. I accept it not just because the mother was a credible witness but because the father made very similar threats to Ms D and as with the mother even after an ADVO was put into place he breached the ADVO.

    I accept that the information in the police reports about the incident with Ms D is correct and what happened is strikingly similar in content to what occurred with the mother.

    The father has been involved in two serious domestic violence incidents within 12 months and the last one was only 12 months ago. He made limited admissions about what had occurred. He tried to cast blame on each occasion on the partners involved. In the case of the mother he seemed to think that she had done something wrong being in the house with a male friend. In the case of Ms D he laid some blame on her for what had happened.

    The father seems oblivious to the fact that his threats to kill and his use of a knife engender fear in other people. He lied about whether he had a knife during the domestic violence incident with the mother. I cannot be satisfied that there is no risk of the father behaving in a similarly violent manner in domestic relationships in the future.[5]

    [5] Gaines & Tebbs (supra) paragraphs 119 to 123

20. The orders that I made in December 2018 were that the mother have sole parental responsibility for the children, the children live with the mother, and that the father spend no time with and have no communication with the children, noting, however, that this does not prevent the mother facilitating some time between the father and the children in the event of a family situation such as hospitalisation, a funeral, or other family event, which the mother feels it may be safe and appropriate for the children to attend.

21. The notation was made because of the particular circumstances of the case. 

The Rule in Rice & Asplund

1. The father wants the Court to change those orders and I have to consider the rule in Rice & Asplund.  In that case the Full Court said 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 the 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, as counsel for the appellant submitted, change is an ever present factor in human affairs. 

   Therefore, the court would need to be satisfied by the applicant that 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. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require a court to consider afresh how the welfare of the children should best be served.  These principles apply whether the original order was made by consent or after a contested hearing.  The way they apply, and the factors which will justify the court in reviewing a custody order, will vary from case to case.[6]

   [6] Rice & Asplund (1979) FLC 90-725

2. This pronouncement has become known as the Rule in Rice & Asplund.

3. In SPS & PLS Warnick J exhaustively considered the purposes which were served if the Rule in Rice & Asplund was applied as a preliminary matter. He said as follows:

   As seen above in Rice & Asplund, Evatt CJ recognised that a purpose of the rule was to discourage endless litigation.  I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid public expense of subsequent hearings, and the imposition of them on court time.  In the case of In the marriage of McInerney, Nygh J moved beyond the general position of public interest in the finality of all litigation to purposes more specific to family law. He said …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.[7]

   [7] SPS & PLS (2008) FLC 93-363

4. In Marsden & Winch[8] the Full Court were at pains to emphasise that the key issue in any parenting application was the best interests of the children. It said as follows:

   Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits.  In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)).  We agree with the conclusion reached by Warnick J (at [81]) that:

   …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.

   [8] Marsden & Winch (2009) FamCAFC 152

5. It went on to discuss the matters the court should consider if a fresh application was filed and said as follows:

   In Miller & Harrington (supra) the Court posed the question:

   Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?

   That question might be better formulated in another way in the following proposition, namely that there is a requirement:

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

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

The father’s case

1. In his affidavit filed on 7 December 2020 the father disputed the correctness of many of the findings in my judgment and suggested that the mother had in fact been violent to him and that he had been wrongly convicted of many things. 

2. He said he had done an offender’s program through the Department of Corrections and a Facing Up program run by F Counselling and that he had learned a lot from those programs. 

3. He said that he realised his aggressive behaviour had an effect on people and he regretted his actions. He said he now understood the effect of family violence on children. 

4. The father said he had done some drug and alcohol counselling and was abstaining from drugs and limiting his alcohol consumption.  He said he was willing to do some testing to verify his claims about his drug and alcohol use. 

5. The father said he had had appointments with a psychologist who had helped him manage his mental health and he was no longer on medication for depression and anxiety. 

6. He said that he would like to commence seeing the children again and work toward having unsupervised time with them and being able to share parental responsibility for them with the mother. 

The mother’s case

1. The mother’s case was that there had not been any change which meant that the Court should reconsider the orders.

Discussion

1. It is often said that when the court is considering whether there has been a change of circumstances which justify allowing a subsequent application for parenting orders to proceed, it must take the applicant’s case at its highest.

2. That could be interpreted as meaning that I must simply look at the father’s affidavit, look at the things he says he had done, look at what he says he had learnt, and taking all that at its highest find that he has demonstrated a change of circumstances and allow him to proceed with his application.

3. However it is not that simple.

4. In his affidavit the father said that he had learned that his aggressive behaviour had an effect on people and that he regretted his actions and understood the effect of family violence on children, but he did not make too many admissions, if any, in his affidavit about having perpetrated family violence and I found extensively that he had. His affidavit is littered through with allegations about the mother and challenges to the findings in the 2018 decision which suggests that he has not changed at all. 

1. The father provided no supporting evidence about his rehabilitation or about the courses he had done or the counselling he had attended and he did not voluntarily provide a drug test. 

2. Just in light of that I would seriously question whether the father had made out a case that there had been a change of circumstances. People cannot just file an affidavit containing a whole lot of bare assertions and expect the Court to accept them and allow them to have another go at Court proceedings. 

3. However there is more to it than that. 

4. The mother’s solicitor issued some subpoenas after the proceedings commenced and the material produced by the police suggests that there are significant omissions in the father’s affidavit, and that not only may he not have changed, his behaviour may have escalated and he posed a significant risk of harm to domestic partners and was not someone who should be having time with children. 

5. The father did not tell me in his affidavit that in October 2019 he was involved in an incident with Ms B, the partner who gave evidence for him in 2018.

6. Police were called to that incident and subpoena material reveals that Ms B told police that she and the father had argued and that the father had grabbed her by the back of her hair and slammed her head into a wall causing her to lose consciousness. 

7. Ms B told police that when she got up the father punched her in the chest. She said that she went inside to get her things and the father pushed her down a full flight of stairs. 

8. Ms B was taken to hospital and the police took photographs of extensive bruising.

9. Interestingly in the light of the position the father took about the mother’s allegations against him, the following appears in the police records, and I am taking this from a summary prepared by the mother’s solicitor:

   Upon being arrested, the father stated the victim was the aggressor. He made no admissions to assaulting the victim or retaliating against her or trying to defend himself. 

10. The father did not tell me anything about that incident in his affidavit filed in 2020.  He did not tell me that an ADVO was taken out against him for Ms B’s protection and he did not tell me that arising out of that incident he was charged with two counts of common assault and two counts of stalk intimidate intending to cause fear or physical harm.

11. He went to trial on those charges and on 23 March 2021 he was convicted and sentenced to 20 months imprisonment with a 15-month non-parole period. 

12. The father missed two mentions in the parenting proceedings in this court quite recently, and when I asked him a couple of days ago if that was because he was in custody at the time he agreed that was the case. He said, and documents confirm, that he had lodged an all grounds appeal and had been released on bail.

13. The father asked me to adjourn the Rice & Asplund hearing because he had lodged that appeal but I do not consider that is a reason to adjourn the matter. 

14. Apart from the October 2019 incident with Ms B which led to the father being charged, there are a number of other extremely disquieting matters in the police records in 2019 and 2020. 

15. On 12 June 2019, four months before that incident, a caseworker, apparently working with Ms B, rang the police to raise a concern about a number issues that had been happening between the father and Ms B. 

16. According to the caseworker Ms B had stated that the father told her that he enjoyed watching churches burn down and made similar statements. She had also said that Ms B told her that on 2 June 2019 she woke to find her gas stove alight with a small piece of paper near it. 

17. Ms B did not want to go on with the complaint and when I asked the father about it during submissions he said he didn’t know anything about it. However the report is extremely concerning given the fact that the father admitted threatening that he would burn the mother’s house down prior to the incident in May 2016.

18. Then there was the October 2019 incident that I have just described.

19. On 5 November 2019 a report was made to police, and it would appear that it was made by Ms B, complaining about a breach of the ADVO made for her protection.  That is concerning given what happened with the mother and Ms D. No action was taken by the police.

20. On 31 December 2020 a report was made by someone, and again it appears to be Ms B, about the father being parked outside her house. That is disquieting because of the allegations the mother made about something similar happening to her.

21. The father may succeed with his all grounds appeal but this Court is not a criminal Court. If this Court was hearing the parenting matter it would not be asked to consider whether the elements of a criminal offence were made out.  If this Court was asked to reconsider the orders about the father spending time with the children it would be considering the recent allegations against him against the background of his convictions for assaulting, stalking and intimidating two previous domestic partners. 

22. This Court would also have to consider the impact on the mother of making an order for the children to spend time with the father.

23. I noted in my 2018 judgment that the mother was frightened of the father.  At the time of trial in 2018 she had relocated to an address that she wished to keep secret from him. The father managed to find her using a private investigator and I referred to that in my judgment. 

24. The mother said in her recent affidavit that in May 2019 she relocated again because the father turned up at a polling booth near her home.  He was seen there by the maternal grandmother when she went to vote. He approached the maternal grandmother and asked her about the children and then waited outside for a long time until it became clear that the maternal grandmother was not going to leave. 

25. That resulted in the mother moving again and it also resulted in her being required to change the children’s school.

26. The mother said that she was concerned that the father was still attempting to contact her and she went into some detail in her affidavit about that. As a result she made a complaint to police. The police told her that they would not apply for an ADVO but would speak to the father. 

27. I made findings in 2018 about the domestic violence the father had perpetrated and threats he had made to the mother and to Ms D, his subsequent domestic partner and now there are a raft of allegations and at the moment a conviction, in relation to offences committed against yet another domestic partner. 

28. The concerning thing about that as well is that the level of harm perpetrated against Ms B appears to be greater than that perpetrated on the mother.

29. It would not be in the children’s best interests for me to allow the father’s application to continue in this Court.  He has not made out a case for a change of circumstances.  He made some bare assertions that he had changed his thinking and his views but his own affidavit contradicts that given the blame he attempts to place on the mother for what has happened in the past. He provided no supporting evidence for his claims about having done drug and alcohol counselling or for having done and completed the courses he says he has done. 

30. Just on the basis of my concerns about the affidavit, I would not be prepared to allow him to reopen the proceedings, but the material in the police records and the fact that he failed to say a single word about being charged again with serious family violence offences reinforces my view that it would not be appropriate to allow the father to proceed with his application. 

31. Even if the rule in Rice & Asplund did not get us to the point of justifying dismissal of his application, although I believe that it does, in my view on the face of the material the father has no reasonable prospects of successfully persuading a Court to change the existing orders.

32. The other problem with allowing the application to proceed is that the mother will be placed under considerable stress.  She has already moved home twice because of a fear of the father.  She alleged in her affidavit that within the last year he had repeatedly attempted to contact her. I am concerned that this is a case in which if the father located the mother she might be placed at serious risk of harm, because there does appear to be some element of obsession there.

33. The father said that if I dismissed his application he would bring another one if his District Court appeal succeeded.  However he needs to carefully note that the mere fact that his appeal succeeds does not mean that he is going to be able to establish a change of circumstances, not with all that information in the police records. 

34. He would have to file an affidavit very carefully addressing that material and provide some corroborating material about his circumstances before a Court would consider allowing the matter to be litigated again. 

35. I am going to make two orders. The first is that the father’s application filed on 22 July 2020 be dismissed. The other is that if the father files a further application and seeks a Location Order, the judge or registrar who is asked to make the Location Order should carefully note that before making a Location Order, the Court is required to satisfy itself that it is in the children’s best interests for the order to be made and should carefully consider these reasons for decisions and the reasons for decision of 18 December 2018 in making that determination.   

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate: 

Date: 15 June 2021