FAMILY COURT OF AUSTRALIA
Galloway & Steele [2021] FamCA 508
File number(s): SYC 6615 of 2007 Judgment of: HARPER J Date of judgment: 21 July 2021 Catchwords: FAMILY LAW – PARENTING – Whether the principles of Rice and Asplund apply at a preliminary stage – Where previous judgments given by the Court in 2012 and 2015 – Where the father has sole parental responsibility for the child, and the child lives with the father – Where existing orders provide for mother to spend time with the child as agreed with the father or as ordered by the Court – Where the father has consistently offered supervised time with the mother – Where the mother has consistently refused to engage with supervised time – Where the mother has had little contact with the child since December 2015 – Where the mother seeks overnight time and spend time with orders with the child – Whether sufficient changes demonstrated to provoke relitigation of parenting orders – No sufficient change of circumstances demonstrated – Substantive Application dismissed. Legislation: Evidence Act1995 (Cth)
Family Law Act 1975 (Cth) ss 45A, 60CA, 60CC, 64B(1)
65AA, 65D, 65DA, 68L, 69ZM, 69ZN, 69ZQ, 69ZT
Family Law Rules 2004 (Cth) r 10.12
Cases cited: Carriel & Lendrum (2015) FLC 93-640
Defrey & Radnor [2021] FamCAFC 67
DL & W (2012) FLC 93-496
Edwards & Edwards (2006) FLC 93-306
Freeman and Freeman (1987) FLC 91-857
Galloway & Steele [2011] FamCA 550
Galloway & Steele [2015] FamCA 1215
Gaul & Gaul [2000] FamCA 12
Gotch & Gotch [2009] FamCAFC 3
Jaynes & Rundle [2020] FamCAFC 292
Judd & Pryor (No. 2) [2020] FamCA 934
King v Finneran (2001) FLC 93-079
Langmeil & Grange [2013] FamCAFC 31
Marriage of Zabaneh (1986) FLC 91-766
Marsden & Winch (2009) 42 Fam LR 1
Miller v Harrington (2008) FLC 93-383
Poisat & Poisat (2014) FLC 93-597
Reid & Lynch (2010) FLC 93-448
Rice & Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570
SCVG & KLD [2014] FamCAFC 42
Searson & Searson [2017] FamCAFC 119
SPS & PLS (2008) FLC 93-363
Tabb & Tabb [2017] FamCAFC 169
Watson & Watson [2018] FCCA 1791
Number of paragraphs: 149 Date of hearing: 12 May 2021 Place: Sydney Counsel for the Applicant: Mr Page QC Solicitor for the Applicant: Michael Dwyer Solicitor Solicitor for the Respondent: Holmes Donelly & Co Solicitors Solicitor for the Independent Children's Lawyer: Reid Family Lawyers ORDERS
SYC 6615 of 2007 BETWEEN: MS STEELE
Applicant
AND: MR GALLOWAY
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
HARPER J
DATE OF ORDER:
21 JULY 2021
THE COURT ORDERS THAT:
1.The Initiating Application filed on 26 October 2020 by the Applicant Mother be dismissed, together with the Respondent’s Response thereto.
2.For the avoidance of doubt, the Application in a Case filed by Applicant Mother on 10 December 2020 be dismissed, together with the Respondent’s Response thereto.
Note: The form of the order is subject to the…
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- Galloway & Steele [2021] FamCA 508
- Case
- [2021] FamCA 508
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CaseChat Overview and Summary
In *Galloway & Steele*, Harper J of the Family Court of Australia considered an application by the mother for fresh parenting orders, specifically seeking overnight and other time with the child. The father, who has sole parental responsibility and with whom the child lives, had consistently offered supervised time, which the mother had refused. The child had had minimal contact with the mother since December 2015.
The central legal issue before the court was whether there had been a sufficient change of circumstances since previous judgments in 2012 and 2015 to warrant a relitigation of the existing parenting orders. The mother contended that her application should proceed to a full hearing, including a family report and investigation of the child's views, rather than being determined at a preliminary stage.
Harper J determined that the mother's application was appropriately dealt with as a preliminary or threshold question and should be dismissed in the best interests of the child. His Honour referred to earlier judgments by Fowler J and Loughnan J, which had found the mother to be an unreliable witness, evasive, and holding an intractable, negative view of the father as an abuser. These earlier judgments had rejected allegations of abuse by the father and found no evidence to sustain such assertions or an unacceptable risk of harm in the father's care. His Honour concluded that no sufficient change of circumstances had been demonstrated to justify relitigating the parenting orders.
Consequently, the Initiating Application filed by the mother on 26 October 2020, and the Application in a Case filed on 10 December 2020, were dismissed.
The central legal issue before the court was whether there had been a sufficient change of circumstances since previous judgments in 2012 and 2015 to warrant a relitigation of the existing parenting orders. The mother contended that her application should proceed to a full hearing, including a family report and investigation of the child's views, rather than being determined at a preliminary stage.
Harper J determined that the mother's application was appropriately dealt with as a preliminary or threshold question and should be dismissed in the best interests of the child. His Honour referred to earlier judgments by Fowler J and Loughnan J, which had found the mother to be an unreliable witness, evasive, and holding an intractable, negative view of the father as an abuser. These earlier judgments had rejected allegations of abuse by the father and found no evidence to sustain such assertions or an unacceptable risk of harm in the father's care. His Honour concluded that no sufficient change of circumstances had been demonstrated to justify relitigating the parenting orders.
Consequently, the Initiating Application filed by the mother on 26 October 2020, and the Application in a Case filed on 10 December 2020, were dismissed.
Orders
Orders of the court
SYC 6615 of 2007
BETWEEN:
MS STEELE
Applicant
AND:
MR GALLOWAY
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
HARPER J
DATE OF ORDER:
21 JULY 2021
THE COURT ORDERS THAT:
1. The Initiating Application filed on 26 October 2020 by the Applicant Mother be dismissed, together with the Respondent’s Response thereto.
2. For the avoidance of doubt, the Application in a Case filed by Applicant Mother on 10 December 2020 be dismissed, together with the Respondent’s Response thereto.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
By the time of the hearing on 12 May 2021, the mother’s position appeared to be that her application for fresh parenting orders should not be the subject of a preliminary determination, but should proceed further, at least as far as obtaining a family report and a full investigation of the views of the child. For the reasons which follow, I disagree. I am satisfied the mother’s application is appropriately dealt with as a preliminary or threshold question, should not proceed any further, and should be dismissed in the best interests of the child. BACKGROUND The father is presently 49 years of age and was born in 1971. The mother is presently 47 years of age and was born in 1973. The parties did not cohabitate. They started their relationship in September 2003 and ended it in May 2006. The background of these proceedings is set out in detail in two earlier judgments: Galloway & Steele [2011] FamCA 550 at [7]-[74] (“the 2011 judgment”) and Galloway & Steele [2015] FamCA 1215 (“the 2015 judgment”). It is necessary to refer to these earlier judgments of Fowler and Loughnan JJ in some detail to properly contextualise the mother’s present application.The 2011 Judgment Fowler J did not find the mother to be a witness of credit:287. The mother, in the giving of her oral evidence, was evasive. There were some long pauses in her responses. She failed to answer certain questions put to her and declined to answer at least one question. She answered other questions in a way inconsistent with her diary entries. She also changed her evidence on some matters as she went along. 288. In her affidavit material, the mother omitted facts of which she had a diary record which might be thought to assist the father. 289. The mother sought to explain those differences as being in part due to a lack of attention by reason of the need for haste in signing the document. However, in interim proceedings in this Court, she had signed affidavits with the same differences and allegations in them. Fowler J concluded that where the mother’s evidence conflicted with that of the father, the father’s evidence should be preferred: at [295]. Fowler J was satisfied that the mother held an intractable and negative view of the father as an abuser and danger to the child. Fowler J rejected such contentions and made no findings of abuse by the father. In particular, his Honour said:310. The Court also accepts the father’s denials of sexually inappropriate behaviour or violent behaviour with his son and it is noted that the expert evidence of the relationship between the child and his father betokens no fear or apprehension which would often attend such an abuse as is alleged.…320. The mother asserts that the father has also been guilty of physical abuse of the child. She refers to statements that she says that he has made as to being tied up in a dark room by his father. There is no physical evidence of abuse. The father denies it and he impresses as a witness of truth. The statements and conduct of the child in this regard also have to be put into the same context of manipulation of the mother by the child.…326. The Court finds that there is no evidence which would sustain the assertions of sexual or physical abuse and also finds that the evidence does not convince it that there is an unacceptable risk of harm in the care of the father.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The background of these proceedings is set out in detail in two earlier judgments: Galloway & Steele [2011] FamCA 550 at [7]-[74] (“the 2011 judgment”) and Galloway & Steele [2015] FamCA 1215 (“the 2015 judgment”). It is necessary to refer to these earlier judgments of Fowler and Loughnan JJ in some detail to properly contextualise the mother’s present application.The 2011 Judgment Fowler J did not find the mother to be a witness of credit:287. The mother, in the giving of her oral evidence, was evasive. There were some long pauses in her responses. She failed to answer certain questions put to her and declined to answer at least one question. She answered other questions in a way inconsistent with her diary entries. She also changed her evidence on some matters as she went along. 288. In her affidavit material, the mother omitted facts of which she had a diary record which might be thought to assist the father. 289. The mother sought to explain those differences as being in part due to a lack of attention by reason of the need for haste in signing the document. However, in interim proceedings in this Court, she had signed affidavits with the same differences and allegations in them. Fowler J concluded that where the mother’s evidence conflicted with that of the father, the father’s evidence should be preferred: at [295]. Fowler J was satisfied that the mother held an intractable and negative view of the father as an abuser and danger to the child. Fowler J rejected such contentions and made no findings of abuse by the father. In particular, his Honour said:310. The Court also accepts the father’s denials of sexually inappropriate behaviour or violent behaviour with his son and it is noted that the expert evidence of the relationship between the child and his father betokens no fear or apprehension which would often attend such an abuse as is alleged.…320. The mother asserts that the father has also been guilty of physical abuse of the child. She refers to statements that she says that he has made as to being tied up in a dark room by his father. There is no physical evidence of abuse. The father denies it and he impresses as a witness of truth. The statements and conduct of the child in this regard also have to be put into the same context of manipulation of the mother by the child.…326. The Court finds that there is no evidence which would sustain the assertions of sexual or physical abuse and also finds that the evidence does not convince it that there is an unacceptable risk of harm in the care of the father. When discussing the primary consideration under s 60CC(2)(b) and the risk of harm in the mother’s care, Fowler J said:329. There is little doubt on the evidence that the mother has a continuing and abiding suspicion of the father. This is apparent since 2008. She believes that he “grooms” J. She does not believe that he loves J; an assertion which is belied by the father’s conduct and the observation of the father and the child.330. The mother has no doubt that the child’s misbehaving conduct is the product of abuse by the father yet she refers to such conduct arising at about the same time as a friend Mr C came into her life. Notwithstanding this, it is the father alone who is the target of her convinced view that something untoward has happened.331. The child’s statement said by the mother to be made, “Mummy I do it I do it I do it I tickled him I tickled the man”, was made after the child had been in the presence of Mr C and had put his hand up a shorts leg and touched Mr C’s genitals. Yet the mother refers to the child’s statement as evidence of sexual abuse by the father. …333. In addition it is clear that the mother has a continuing lack of trust in the father because she regards him as not only a liar but a manipulative person with an obsession for control.334. The mother’s diaries were produced and the material contained in them was to some extent inconsistent with that contained in her affidavit which put the father in a light worse than her diary notes would suggest was warranted.335. This seems to indicate the extent to which the mother would go to denigrate the father. The Court notes that the affidavit evidence of the father’s sexual practices did not contain any suggestion that the practices were consensual which the oral evidence established they were. It seems more probable than not that their recounting was intended to be simply prejudicial to the father.…338. The mother cannot accept it seems that it is her parenting style which is inappropriate for this child and the cause of his behaviour. She seems to continue to adhere to the view that his behaviour is solely the result of abuse by the father.339. The mother’s faith in her view, found by the Court to be unsustainable that the child was in any danger from the father, is supported in her by her continuing relationship with and encouragement from the father’s brother and his brother’s wife who seem to have an idée fix in relation to the issue of child abuse.340. The mother can only bring herself to say that the child’s ordered behaviour in the father’s care is occasioned by fear of the father, a view which is neither shared nor demonstrated by the supervised contact observations nor the observations of Dr W whose description of the relationship betokens no such fear.
Ratio Decidendi
Legal Principle Established
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