Haskos & Haskos
[2022] FedCFamC2F 1184
Federal Circuit and Family Court of Australia
(DIVISION 2)
Haskos & Haskos [2022] FedCFamC2F 1184
File number(s): SYC 1951 of 2022 Judgment of: JUDGE BECKHOUSE Date of judgment: 7 September 2022 Catchwords: FAMILY LAW – PARENTING – Rice & Asplund – Where the mother seeks to vary parenting orders made by consent in 2018 – No material change in circumstances – Impact of litigation on the child – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 65D(2), 69ZN(3), 69ZN(4) Cases cited: Lund & Lund [2018] FamCAFC 112
Marsden & Winch (2009) 42 Fam LR 1
Poisat & Poisat (2014) FLC 93-597
Searson & Searson (2017) FLC 93-788
Division: Division 2 Family Law Number of paragraphs: 72 Date of hearing: 4 August 2022 Place: Sydney Counsel for the Applicant: Ms Cantrall Solicitor for the Applicant: Godden Lawyers Counsel for the Respondent: Mr Cummings SC Solicitor for the Respondent: Nicole Evans Lawyers ORDERS
SYC 1951 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HASKOS
Applicant
AND: MR HASKOS
Respondent
order made by:
JUDGE BECKHOUSE
DATE OF ORDER:
7 September 2022
THE COURT ORDERS THAT:
1.The Initiating Application filed by the Applicant Mother on 24 March 2022 is dismissed.
2.The Father’s costs are reserved.
3.Within 14 days of the date of these Orders, the Father shall file and serve any written submissions in support of an application for costs.
4.Upon service of any written submissions for costs, the Mother shall file and serve any written submissions in response.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Haskos & Haskos has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction
The applicant mother Ms Haskos (“the mother”) seeks to vary final parenting orders that were made by consent on 16 November 2018 in relation to her son X, born in 2010 (“X”).
The respondent father Mr Haskos (“the father”) asks for the application to be dismissed based on the principles in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”).
This judgment deals with the threshold Rice & Asplund issue of whether there has been a material change of circumstances that would, in the child’s best interests, warrant further litigation.
Background
The father was born in 1977 and is currently 45 years old.
The mother was born in 1980 and is currently 42 years old.
The parties married in 2010.
The parties’ only child X was born in 2010 and is currently 11 years old.
The parties separated on a final basis on 27 March 2013 and divorced in August 2014.
Final Consent Orders were made on 14 February 2014 allocating equal shared parental responsibility for X to the parties, with X to live with the mother for 60% of his time and the father for the balance.
On 3 September 2015 a serious incident of violence occurred. The father received knife wounds at the hands of the mother, later underwent surgery and was hospitalised. X was present when the attack took place. The mother was arrested and charged by police with wounding with intent to murder and wounding with intent to cause grievous bodily harm. The Department of Family and Community Services (as it was then known) immediately removed X from the mother’s care and later found X was a child in need of care and protection.
On 3 November 2016 the President of the Children’s Court of New South Wales, Judge B, following a seven day hearing, made orders for X to remain in the full-time care of the father (determining there was no realistic possibility of restoration to the mother). Orders for parental responsibility were made as follows:
(a)That all aspects of parental responsibility, except for contact, be allocated jointly to the father and the Minister for Family and Community Services (“the Minister”) for six months.
(b)That after six months all aspects of parental responsibility, except for contact, be allocated to the father to the exclusion of the mother for 18 months.
(c)That the issue of contact be allocated solely to the Minister for two years.
(d)That upon the expiration of the Orders in (b) and (c) above, the father be allocated parental responsibility to the exclusion of the mother until X attains the age of 18 years.
On 22 December 2016 the mother filed an appeal of the Children’s Court orders in the Supreme Court of New South Wales.
On 19 May 2017 the mother was found not guilty of the criminal charges.
On 16 November 2018 the parties attended the Supreme Court of New South Wales for a hearing of the mother’s application. The parties, who were represented, entered into consent orders (“the orders”). In summary those orders provide that:
(a)The father have sole parental responsibility for X (save for religion and culture which shall be shared), with the mother to be consulted about major decisions except in the case of an emergency;
(b)X live with the father;
(c)X spend time with the mother:
(i)Five nights per fortnight during the school term; and
(ii)Half of each school holiday period.
(d)Other ancillary orders relating to overseas travel, additional time, school events and information, exposure to family violence, non-denigration, discipline and communication.
On 24 March 2022 the mother filed an Initiating Application in this Court seeking to discharge the orders. This was later amended on 2 August 2022. In effect she seeks:
(a)A discharge of the Orders made on 16 November 2018;
(b)An order for sole parental responsibility (Order 2);
(c)That X spend an additional four extra nights with her each fortnight, thereby expanding the current regime from five nights per fortnight to nine nights per fortnight (Order 4);
(d)A range of ancillary orders including (but not limited to):
(i)The father advising the mother of his residential address and allowing her to attend the home of the father for the purpose of changeovers (Order 26 & 27);
(ii)The parties to attend a parenting course (Order 30);
(iii)Specific orders about how X or other people refer to the parties (Order 31 – 33).
(e)She also seeks interlocutory orders including that Dr C be appointed as a single expert and prepare an updated report.
By his Response filed on 10 May 2022, the father seeks the dismissal of the mother’s application and costs.
On 13 July 2022 the matter was set down for a one day hearing on 4 August 2022 with respect to the Rice &Asplund argument and trial directions were made.
The Hearing
The parties agreed that the Rice & Asplund argument would be dealt with as a preliminary issue.
The hearing proceeding in person and by way of submissions only.
Both parties were represented by counsel and neither were cross-examined.
At the conclusion of submissions the Court reserved its decision.
Each of the parties filed Case Outline documents setting out the material relied upon.
The father relied upon:
(a)Affidavit of Mr Haskos filed 29 July 2022; and
(b)Response to Initiating Application filed 10 May 2022.
The mother relied upon:
(a)Affidavit of Ms Haskos filed 22 July 2022; and
(b)Amended Initiating Application filed 2 August 2022.
The following documents were tendered and marked as exhibits:
(a)Exhibit 1 - Parent Assessment Report by Mr D with the administration date of 26 April 2021;
(b)Exhibit 2 - Neuropsychological Assessment Report by Ms E dated 24 May 2021;
(c)Exhibit 3 - Occupational Therapy Progress Report dated 28 May 2021;
(d)Exhibit 4 - Three School Reports for X from F School, Semester 1 2021 Report, Semester 2 2021 Report, and Semester 1 2022 Report;
(e)Exhibit 5 - Confidential Parent/Carer Questionnaire from G Paediatrics dated 5 July 2021;
(f)Exhibit 6 - Speech Pathology Management Plan dated 16 November 2021;
(g)Exhibit 7 - Consultation Record of Paediatrician dated 16 December 2021;
(h)Exhibit 8 - Letter from Developmental Paediatrician, Dr H, dated 16 December 2021 and a signed copy of the Consent Form for Families with Separated Parents; and
(i)Exhibit 9 - Report of Dr C dated 6 March 2018.
The father was opposed to the admission of the single expert report prepared by Dr C in 2018. I ruled on this and allowed it to be tendered because in my view it provided some context to the circumstances that were present when the parties entered into the parenting orders in 2018.
X
X is an 11 year old boy. He is described by his classroom teacher as having a friendly disposition, relaxed demeanour and endearing personality. His father describes him as being a happy, social and well-adjusted boy who is well settled.
For nine nights each fortnight he lives with his father, stepmother, Ms J and his siblings from that relationship, K (four years old) and L (two years old).
For five nights each fortnight he lives with his mother, stepfather Mr M, and his siblings from that relationship N (six years old) and O (five years old).
X is currently attending F School where he is in year six. His father, who exercises sole parental responsibility for decisions about X (apart from religion and culture which is shared), intends for him to complete his high school education at F School.
X enjoys good health. In around 2020 his parents were concerned about his concentration levels, and sought an assessment from a paediatrician. In mid-2021 X was diagnosed with ADHD. He is prescribed medication for the condition.
The school records indicate that X attends school regularly and receives appropriate educational support from both his school and his parents.
X enjoys playing sport and has an active range of extracurricular activities.
I should at this point make some comments about X from the mother’s perspective. She filed an affidavit in support of her application which was 46 pages in length and consisted of 298 paragraphs. The affidavit clearly articulates a range of complaints and concerns to support her argument that there have been changes in X’s circumstances since the orders were made in 2018. She articulates at length what she thinks would be best for X. But sadly there is little in her affidavit that helps me to understand who X is, what is important to X and how he leads his life.
The Mother’s position
The mother contends that since the orders were made several changes in circumstances have occurred.
On the basis of these change in circumstances, the mother contends there is a likelihood of the Court making orders different to the current orders. Therefore, the matter should be revisited.
The Father’s position
The father contends that there has been no change of circumstances since the orders were made, but even if the Court found there to be one, it would not warrant further litigation.
He argues that further litigation about parenting arrangements would not be in the best interest of X.
The Law
Section 65D(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that the court may make a parenting order that “discharges, varies, suspends or revives some or all of an earlier parenting order.” The Act does not however prescribe the matters that the court should consider in determining whether or not to exercise its jurisdiction.
In Rice & Asplund the Full Court established that a final parenting order will not be revised unless an applicant who seeks to vary the orders can demonstrate a material change of circumstances[1].
[1] Rice and Asplund (1979) FLC 90-725 at 78,905.
In Marsden & Winch (2009) 42 Fam LR 1 at [50], the Full Court provided some guidance in determining whether best interests of the child outweigh the need to revisit orders:
…Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The Court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
In determining the threshold issue I am required to accept the veracity of the mother’s evidence about the change of circumstances that she deposes[2], or put another way, take her case at its highest and proceed on the basis that the evidence produced by her is correct.[3] But this requirement does not mean that I should view the mother’s case uncritically.[4]
[2] Searson & Searson (2017) FLC 93-788.
[3] Poisat & Poisat (2014) FLC 93-597.
[4] Lund & Lund [2018] FamCAFC 112, [22]-[23].
What are the changed circumstances, and are they sufficient to warrant a re-hearing?
The mother contends that there have been four significant changes since the making of the orders:
(a)X, now 11, expresses strong wishes to spend more time in his mother’s household;
(b)Since the making of the orders, X has been diagnosed with ADHD which requires ongoing management;
(c)The exercising of parental responsibility under the orders has broken down, causing a detrimental impact to X; and
(d)The communication between the parties has broken down.
The father says that there are no circumstances which require the Court to consider afresh any aspect of the parenting arrangements which were the subject of the 2018 orders.
According to the mother, X has “frequently” said that he would like to spend more time with her. There was an abundance of material about X before the Court - the mother filed an affidavit consisting of 203 pages, the father filed an affidavit consisting of 235 pages and the mother relied upon documents contained in a tender bundle comprising 171 pages. They each rely upon many documents from external providers who X has been in contact with. I was directed to no document that would support the contention that X is consistently expressing strong wishes to spend more time in the mother’s household.
The mother argues that X is unable to express his views and wishes to the father, and that this has not changed since he saw Dr C in 2018. Therefore, the mother argues that fresh proceedings will give X the opportunity to express a view in a safe and secure way.
The mother deposes having approximately three conversations with X in 2020 and another exchange in 2021. The mother annexes to her affidavit some emails to the father advising him that X had expressed a wish to spend more time with her after some visits. I accept that X has on occasions expressed a desire to spend more time with his mother. But the evidence when considered in its totality does not in my view constitute such a substantial change in circumstances to warrant a reconsideration of the parenting arrangements.
The current orders allow the parties some flexibility. They include an order that X can spend “such other or alternate times as agreed in writing between the parties”. The parties’ evidence suggests that they have negotiated alternate and additional time, although the mother does complain that the father controls this aspect of their parenting.
X has been diagnosed with ADHD. His parents depose in their affidavits to playing active roles with X’s health professionals and in his treatment regime.
When Ms E undertook a neuropsychological assessment of X in May 2021 she had a clear understanding of the parenting arrangements. On pages 6 to 8 of her report she makes recommendations for managing and supporting X and none of those recommendations suggest that a change to the current parenting arrangements would be in his best interests.
In December 2021 a report was prepared by Dr H, a developmental paediatrician. She recommended the prescription of Ritalin for X and spoke with the mother about her recommendations.
There is nothing to indicate in all of the material filed and relied upon by the parties that the ADHD diagnosis has impacted on the parenting arrangements under the orders, nor that medical advice has been received to suggest that the current arrangements are no longer in X’ best interests.
The mother is concerned about the manner in which the father exercises sole parental responsibility for X arguing that this has “broken down”, causing a detrimental impact to X. She now seeks an order for sole parental responsibility.
The father has made two decisions in exercise of his parental responsibility. The first was the decision to administer Ritalin to X in accordance with the paediatrician’s recommendations. He appropriately consulted with the mother on that occasion, as the orders require him to do. The father also notes that he consulted with the mother before X received his COVID-19 vaccination.
The father also exercises parental responsibility in relation to X’s schooling. He does not anticipate changing X’s school. The mother indicates in her affidavit that she feels her reputation has been unfairly tarnished in the F School community and if her application was successful she would consider changing X’s school to give him “a fresh start”.
I have carefully read the 298 paragraphs of the mother’s affidavit and can see no allegation of an occasion when the father has failed to consult with her about major decisions about X. Nor does the mother make any complaint about discharge by the father of his parental responsibility for X.
In addition, the father appears to have corresponded with her on a regular basis, in relation to all manner of day-to-day decisions. The mother remains critical of the manner in which he corresponds and what she describes as “inadequate communication”.
As I understand it, the mother complains that the father’s communication causes her great tension. Given the circumstances under which X came into the father’s care, and the legal proceedings that ensured, I am surprised that the parties can and do communicate on an almost daily basis in relation to X. But the mother’s dissatisfaction with the tone of the communication or the impact of it on her does not mean that it has broken down either.
The mother bears the onus to establish a cogent argument for the variations she proposes to the current orders. Given the lack of evidence of a material change in circumstances, she has not discharged this onus to warrant a re-opening of this matter. But in the event that I am wrong on this, I will move on to consider both the magnitude of the changes to the orders sought and the impact on X should the application proceed.
What is the magnitude of the changes to the orders sought?
The mother bears the onus to establish a strong argument for the variations she seeks.
While parenting orders can never be “final” (as opposed to financial matters), circumstances for children change by reason of their age and other circumstances that arise.
The changes sought by the mother are potentially significant. The mother contends that in order for her to have a meaningful relationship with X, she should become his primary carer. Essentially she would like the time X spends with her to increase from five nights to nine nights each fortnight. This represents a significant change for X, who has been in his father’s primary care for seven years.
I need to consider if there a chance that a court would make different orders. New orders would probably be more detailed than the existing ones. They might address in greater detail the manner in which the parties communicate, as this seems to be the major source of tension. They might also address the mother’s concerns about other people denigrating her. But there is nothing before the Court to suggest that the father has failed to exercise parental responsibility appropriately, nor that he has made decisions that are not in X’s best interests. For a court to change the long-standing living arrangements of a child there would need to be evidence to satisfy the court that it was appropriate and in X’s best interest to do so. X appears to be a well loved and cared for child who is progressing in an appropriate manner.
Even accepting that some changes have occurred for X, the mother has not satisfied me that those changes are of such magnitude that new orders are required. But if I am wrong on this, another important consideration to reopening parenting orders is the impact it would have on X.
What are the impacts on the child if the application proceeds?
I note the principles for conducting child-related proceedings particularly ss 69ZN(3) and (4) of the Act:
69ZN Principles for conduction child-related proceedings
(3)The first principle is that 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.
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Both parties, to their credit, tell the Court that they have shielded X from their conflict and he is relatively unaware of these Court proceedings. If leave were granted and the matter was to proceed to final hearing, it would likely involve X’s participation in a Family Report and further exposure to the parental dispute. An Independent Children’s Lawyer might be appointed to act for X. These professionals would seek out his views on a range of matters, including the mother’s proposal that he change school. Given that the proposal to change X’s school arises from the mother’s discomfort with the manner in which she is treated, the process could cause great distress for X.
I appreciate that the mother is upset about her treatment by the father and his family. I am also sympathetic to her desire to have a more normalised relationship with them. But I have to be satisfied that further litigation would be in X’s best interests. There is no evidence to support such a contention and I find that fresh litigation would in fact be onerous and disruptive for X.
Conclusion
The mother’s application to vary the existing parenting orders is dismissed. She cannot demonstrate any material change in circumstances and, if the application were successful, another round of litigation would ensue and with it direct exposure of X to the parental conflict. The mother has not satisfied the criteria imposed by Rice & Asplund to permit her prosecution of these fresh proceedings.
Having reached these conclusions, I will therefore dismiss the mother’s application. The current Consent Orders of 16 November 2018 shall remain in place.
COSTS
The mother’s application has been wholly unsuccessful. The father sought an order for the mother to pay his costs on that account.
No evidence was heard as to the quantum sought by the father nor the capacity of the mother to pay.
I will reserve the question of costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 7 September 2022
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