Haykal and Krawiec (No 3)
[2012] FamCA 379
•18 May 2012
FAMILY COURT OF AUSTRALIA
| HAYKAL & KRAWIEC (NO. 3) | [2012] FamCA 379 |
| FAMILY LAW – CHILDREN – where parenting orders had been made in the Federal Magistrates Court – where the father applies to this Court to have those orders discharged and alternative parenting orders made – where the mother seeks to have the father’s application dismissed – where the mother relies upon the rule in Rice v Asplund – whether there has been a material change of circumstances such that the application for the orders contended for should, in the best interests of the children, proceed to a hearing – where the orders currently sought by the father are almost identical to those sought by him in the Federal Magistrates Court – where there is no evidence of a material change in circumstances – orders made dismissing the father’s application. FAMILY LAW – PROPERTY – where orders were previously made by consent in the Federal Magistrates Court regarding property settlement – where the husband has filed an application seeking to vary those orders pursuant to s 79A of the Family Law Act – where orders made by consent, inter alia, withdrawing that application. |
| Evidence Act 1995 (Cth) |
| Mann & Prewett [2009] FamCA 929 Miller v Harrington (2008) FLC 93-383 Rice & Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Krawiec |
| RESPONDENT: | Mr Haykal |
| FILE NUMBER: | SYC | 731 | of | 2009 |
| DATE DELIVERED: | 18 May 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 17 May 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Michael Conley Lawyers |
REPRESENTATION FOR THE RESPONDENT: | Mr Loukas of Counsel in respect of parenting matters AND Mr Paul, solicitor in respect of financial matters |
| SOLICITOR FOR THE RESPONDENT: | C Law Firm (Parenting) AND Paul & Paul Lawyers (Financial) |
Orders
IT IS ORDERED THAT
The Amended Initiating Application filed by the father on 31 October 2011 be dismissed.
The Application in a Case filed by the father on 2 April 2012 be dismissed.
The proceedings be removed from the Court’s list of active cases.
All documents produced on subpoena be returned to the owners thereof.
Pursuant to s 121(9)(g) of the Family Law Act 1975 an account of these proceedings, namely the transcript of today’s proceedings, Exhibit M1, these Orders and the Reasons for Judgment herewith be approved for publication to the Legal Services Commission or any person or body charged with responsibility for investigating the professional behaviour of the husband’s parenting matters solicitors C Law Firm.
The Reasons for Judgment be expedited and be issued by email in due course to each of the parties.
In the event that either party makes application for costs, any such application shall include a precise minute of orders sought and be contained in written submissions which are to be filed on behalf of each of the parties via email to … within 14 days and each party shall include within those written submissions whether each is prepared to permit the issue of costs to be dealt with in chambers without the necessity of further appearance. In the event that one or both parties request oral supplementation of those written submissions that be listed by way of video link before Murphy J at a date and time to be advised.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haykal & Krawiec (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 731 of 2009
| Ms Krawiec |
Applicant
And
| Mr Haykal |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The parents of S born in January 1997 and N born in July 2002 separated in about August 2008. In February 2009, parenting proceedings commenced. The mother’s application in that respect culminated in a trial before Walker FM on 11 August 2010. A comprehensive report from Dr Q was before the Court on that occasion and was referred to in, with respect, comprehensive reasons given by Walker FM when making orders on 11 February 2011.
Walker FM made orders as follows:
(1) The children live with the mother.
(2) [N] spend time with the father as follows:
(a)Each Sunday 11.00am to 6.00pm until the husband obtains suitable premises to accommodate [N] overnight.
(b)When the husband obtains suitable premises to accommodate [N] overnight, on a two week cycle during school terms, from the conclusion in [N’s] extra curricula activities on Saturday until 6.00pm on Sunday or from 10.00am Saturday until 6.00pm Sunday and in the second week from after school Wednesday until before school Thursday.
(c)During the short term holidays from 10.00am Friday on the first Friday of the school holidays until 5.00pm on the following Monday.
(d)During the long summer holidays, for one block week commencing at 9.00am on the Friday of the first full week of January until 12.00 noon the following Friday.
(3)[S] to spend time with the father in accordance with his wishes.
(4)In addition, specific orders in relation to special occasions and public holidays were also made.
It is important to observe that the orders pertaining to [S], who was then (and is) 14 years of age, were that there would be time in accordance with his wishes. It was common ground that, for reasons the subject of competing assertions, his wishes were (and are) to have no contact with his father.
The Property Application
There were also property proceedings live before her Honour. They involved an application by the husband pursuant to section 79A of the Family Law Act 1975 (Cth) (“the Act”). Those proceedings were resolved by consent on 12 August 2010. On 2 March 2011, the father brought a fresh application pursuant to section 79A with respect to those orders.
I made orders yesterday by consent in respect of that application in the following terms:
(1)That all applications in respect of financial matters filed by the applicant husband since 12 August 2010 be withdrawn and dismissed, including but not limited to, the following applications:
1.1Initiating application filed 2 March 2011 seeking orders under section 79A;
1.2Application in the case filed 21 February 2012 seeking enforcement orders, and
1.3Application in the case for review filed 10 May 2012 in relation to orders made by Registrar McNamara on 8 May 2012.
(2)That the three subpoenae issued to Paul & Paul Lawyers, [C Law Firm] and James Lawyers respectively filed 3 May 2012 and returnable on 16 May 2012 be withdrawn, set aside and otherwise discharged.
(3)That the notice of objection filed by Paul & Paul Lawyers filed 9 May 2012, being in relation to the subpoenae issued to them filed 3 May 2012, would be withdrawn, set aside and otherwise discharged.
The Further Application for Parenting Orders
On 31 October 2011, the father also filed a further application for parenting orders. That application seeks orders as follows:
(1)The orders made on 11 February 2012 by FM Walker be discharged.
(2) The children spend time with the father on a week about basis.
(3)That the parties attend family therapy sessions and that these sessions be video recorded.
(4)That both parties be restrained from taking the children outside of the Commonwealth of Australia and that both children be placed on the airport watch list.
The Amended Initiating Application filed by the father also sought orders in relation to spending time with the children over Christmas and New Year’s Eve and that S attend counselling with the father through Catholic Care and that “on an interim basis” S spend time with the father after school each Thursday until 7.00pm.
It will be observed that “week about” orders are sought in respect of both children including S, who was the subject of the consent order earlier referred to.
By a Response filed 7 November 2011, the mother resists that application and seeks orders that the husband’s application be dismissed and seeks orders, relevantly, that the husband’s application be dismissed with costs.
In the 12 months since his Initiating Application was filed, the husband has filed 10 additional applications and 11 affidavits.
The Husband’s Solicitor’s Conduct
In June 2011, that is some four months after Walker FM delivered her reasons and made parenting orders, solicitors for the father issued subpoenae. On the return date of those subpoenae, his solicitors told the court that the mother’s solicitors had notice of same. That statement was false. A complaint was made to the Legal Services Commission. Those solicitors were censured. Sexton FM ordered that those solicitors remove themselves from the record.
At that time, only the application for property relief was before the court. In a move that Mr Schonell SC describes, accurately in my view, as “at best cute”, those solicitors no longer represent the father in the property proceedings. They do, however, purport to represent him in the parenting proceedings and have instructed counsel before me yesterday.
That led to a situation before me where Mr Paul advised the Court that he represented the father as his solicitor in the property proceedings and Mr Loukas of counsel was instructed by those solicitors to whom I have just made reference in the parenting proceedings – a somewhat unusual situation, to say the very least.
Mr Schonell SC did not object to that course, nor did he assert that the conduct of the solicitors, including conduct to which I will shortly refer, disentitled them from representing the father in the parenting proceedings or from instructing counsel in those proceedings. He may well have done so. Plainly enough, his client’s position was informed by the fact that the mother seeks orders dismissing the husband’s application at this preliminary stage by reference to “the rule in Rice v Asplund”.[1] That application and Mr Schonell’s submissions in support of it clearly indicate a consequential desire to not delay the hearing of these proceedings.
[1] Rice v Asplund (1979) FLC 90-725.
The complaint to the Legal Services Commission earlier referred to related to subpoenae which, if at all relevant, could only be relevant to parenting proceedings. There were no parenting proceedings on foot at the time that those subpoenae issued which, I repeat, occurred only some 16 weeks or so after final parenting orders were made.
At least one of the subpoenae related to S, the then 14½ year old child who was the subject of a consent order that time with the father would be in accordance with his wishes (which were to spend no time with his father). Indeed, there were no parenting proceedings instigated by the father for a further five months after issue of the subpoenae.
I am told that this separate matter is or will be the subject of a further complaint to the Legal Services Commission, so I will say no more about it.
I will, however, make an order pursuant to section 121(9)(g) of the Act, authorising publication of part of these proceedings, namely: a transcript of the proceedings today; exhibit M1, being an extract from the Court’s portal showing the date upon which the subpoenae issued; and, these reasons, to the Legal Services Commission and/or any proper authority charged with the responsibility for inquiring into the conduct of those solicitors (in parenting matters) for the father.
I should emphasise that no material before me indicates that Mr Loukas, who appears as counsel for the father today was, in any way, involved in the matters just discussed.
The issue of the subpoenae just referred to is relevant to the proceedings before me, it is submitted, because it is indicative of the father not ever having accepted the final parenting orders or “taken on board” the issues directly relevant to the best interests of the children which were live before her Honour. More will be said of that in a moment. I turn first to consider the relevant principles.
Relevant Principles
The mother’s application has been described by counsel for the father as an application for “summary dismissal” and it should be said that this expression or expressions like it familiar to the general law have frequently been used to describe applications of the present type.
However, the prospective proceedings are parenting proceedings and, in particular, considerations including, primarily, the best interests of the children are applicable. In that respect, it is important to emphasise what the Full Court said in Miller v Harrington[2], in particular at [69] to [73]:
69.This court has used, and continues to use, expressions such as “striking out” and “summarily dismissed” where financial issues are in dispute. (See, eg: Bigg v Suzi (1998) FLC 92-799; Bain Pacific Associations and Ors & Kelly & Ors (2006) FLC 93-270 per Bryant CJ, Warnick and May JJ). In those types of case, principles familiar to the common law are applicable. In particular, the usual approach has been to determine the application by reference to material in the case for the respondent together with any non-contentious facts. (See, eg, Bain Pacific at para 21).
70.In parenting applications, when a party submits an application should not proceed to a full hearing a common approach is exemplified by the discussion in this case in the passages of transcript already set out; in particular references to “dismiss the mother’s application for final parenting orders on a summary basis”, after a hearing “on the papers”.
71.The use of this terminology is readily understandable, both in the light of usage in authorities and usage in the Act, e.g. s 69ZQ(1)(a), which obliges the court hearing an application for parenting orders to “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily”.
72.It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
73.The application of the rule occurs within proceedings to which the provisions of Division 12A of Part VII of the Act apply. More specifically, the application of the rule occurs as part of “child-related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.
[2] Miller v Harrington (2008) FLC 93-383.
Using the language referred to in Miller, it is accepted by both parties that, here, the question whether there has been a material change in circumstances in the sense in which that expression is used in what has been called the rule in Rice & Asplund is being determined as a preliminary question.
That being the case, the Court looks to the evidence of the father taken at its highest but, and this is important, as Miller makes clear that is done within the context of what are now enshrined as mandatory duties within Division 12A of the Act. Section 69ZN provides specifically:
Principles for conducting child-related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b) in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1(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.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In that respect, I think it is also important to record my respectful agreement with what Fowler J said in Mann & Prewett[3]. At paragraph 48, his Honour said:
… it is not in a child’s best interests that her parents be encouraged to engage in multiple litigation in this court. Parties to marriage relationships who enter into consent orders (which in themselves is seen as an advantage to children) are entitled to hold the not unreasonable belief that as orders of the court they will be complied with. In addition, there ought to be a reasonable expectation that an agreement once made will be complied with. That fulfilment of those reasonably held beliefs should be supported in the interests of encouraging what is a clear policy of the court to encourage parties to come to parenting arrangements which will not lightly be set aside. They ought to be encouraged for the benefit of all children but also, particularly, for the benefit of this child. To do otherwise would be to wreak continuing havoc upon the children.
[3] Mann & Prewett [2009] FamCA 929 at [48].
The Nature of the Application
It is important to understand that what must be shown within the context of the principles just discussed is that there has been a material change of circumstances such that the application for the orders contended for should, in the best interests of the children, proceed to a hearing.
Here, the orders sought by the father are, insofar as they apply to parenting orders in respect of the children, virtually identical to those sought by him in the proceedings before Walker FM. When asked by the Court, counsel for the father articulated what was said to be the material change as follows:
There has been a material change in the “level and degree of absence of the mother [from caring for the children].”
The evidence “clearly disclosed” that “the mother was an absentee parent”.
As an asserted significant aspect of that, “the mother has been unavailable for [N] in respect of her soccer” – something which, plainly, is very important to her.
Whilst counsel articulates the case in that manner, it is important to observe that the (voluminous) affidavit material filed by the father purports to raise a much broader range of issues.
To the extent that those matters too, should be seen to have been properly considered, I observe that I have compared the evidence now raised by the father by reference to Walker FM’s reasons with the assistance of a comparative table included within the mother’s written outline of submissions.
No challenge is made to the accuracy of the comparative table. That table accurately, in my view, summarises the husband’s current assertions and the manner in which each of those allegedly current assertions were dealt with in, with respect, a comprehensive judgement that was not subject to appeal. I repeat that table here. That table, it might be observed, also contains references to the issue articulated by counsel for the father but in light of it is central place in the father’s submissions, I will deal with that matter separately.
| Issue | Reference in Affidavit OF FATHER | Reference in Final Judgement of FM Walker | |
| 1 | The children being named on the AVO made in the Burwood Local Court on 20 March 2009. | Paragraphs 16-22 of the Father’s Affidavit filed 31 October 2011. | Paragraph 16,38-41,85 and 102 In the context of discussing the AVO, Her Honour observes that “The father remains hostile towards the mother. In his evidence at hearing he said that he could not trust her again, that she had cheated him financially and made allegations against him that were mostly false” (Paragraph 39) |
| 2 | The willingness of the Mother to facilitate a relationship between the children and the Father. | Paragraph 26- 28, 37, 45-55, 58, 98-101, 113, 133, 136, 150 of the Father’s Affidavit filed 31 October 2011. | Paragraphs 51-54 Paragraph 53: “The court finds that the mother has limited willingness to facilitate and encourage a close and continuing relationship between [N] and her father”. Paragraph 54: “The father’s attitude to the mother at hearing indicated a considerable degree of hostility and inability to acknowledge the adverse consequences to the children of his behaviour…The court finds that it is likely that in his present state of mind he would have difficulty facilitating [N’s] relationship with her mother”. |
| 3 | Allegations of abuse perpetrated by the Mother and the grandmother against [N] | Paragraph 32-35, 137 of the Father’s Affidavit filed 31 October 2011. | Paragraphs 67-68 |
| 4 | Occasions of cultural significance (i.e. Christmas Eve and the celebration of Vigilia in accordance with Polish practice) | Paragraph 57-58 of the Father’s Affidavit filed 31 October 2011. | Paragraphs 103-105 Paragraph 105: “The father’s insistence on this can be seen as reflecting his obstinacy, arising perhaps from what perceives to be his rights. In pressing this, however, the father demonstrates the difficulty he has in seeing this from [N’s] perspective an the inevitable pressure it will place on her at such a sensitive time for her mother”. |
| 5 | Communication between the parents and the hostility between the parties and prioritizing the needs of the children | Paragraph 59, 72-75, 124-126, 133 of the Father’s Affidavit filed 31 October 2011. | Paragraphs 53 and 54 in relation to the parties’ facilitating the other’s relationship with [N]. Paragraph 58: “The evidence is that in the context of the high level of conflict between them, the parents have both had difficulties in understanding and prioritizing the needs of the children”. Paragraphs 61-65 – discussion as to how each of the parents had involved the children in these proceedings and discussion as to police involvement in the lives of the children following separation. Paragraphs 74-75 – discussion of the attitude of both parties towards parenting and prioritizing the needs of the children. At paragraph 74: “[Dr Q’s] opinion was that over time it appeared the mother with the help of [Dr E] had gained a better insight into the issues that can arise from aligning the children or exposing them to the conflict between the parents. While the mother may have made progress, the Court finds that she has a long way still to go.” At paragraph 75: “[Dr Q’s] opinion was that the father’s attitude had not altered…It was evident too, at hearing, that the father showed no capacity to modify his position on matters in dispute or acknowledge that his actions could be detrimental to the children” Paragraph 76: “….The court finds that both parents have acted in ways that potentially could cause each of the children psychological harm and that the father at hearing demonstrated considerable difficulty in acknowledging that his actions could be detrimental to the children and to [N] in particular”. Paragraph 86: “There can be little doubt that continuing litigation between the parents will add to the conflict which will not be in [N’s] best interests”. Paragraph 98 – “…The father’s preoccupation with the mother’s behaviour and his agitated frame of mind at this time, make it difficult for him to recognize that what [N] needs may well be different to what he thinks is fair to him”. Paragraph 99 – discussion as to why equal time is not reasonably practicable in view of the parties’ inability to communicate with one another. Paragraph 100 – having regard to the recommendation of [Dr Q] as to time [N] spends with the Father (as per the final parenting orders) Her Honour said-“The court finds that such a proposal is in [N’s] best interest and is reasonably practicable in that it does not require the level of communication between the parents that is required in an equal time arrangement”. |
| 7 | The ability for the Mother to provide ongoing care for the children [In the context of her hours of employment and the capacity of the children’s grandmother to provide care and supervision for the children] [In the context of the Mother facilitating [N’s] involvement in soccer which was organised by the Father without consultation with the Mother] | Paragraph 67-68, 79-82, 96-97, 100, 128, 143-146 of the Father’s Affidavit filed 31 October 2011. Paragraph 5 of the Father’s Affidavit filed 2 April 2012 | In relation to the Father’s ability to provide for [N’s] care in the event a “week about” arrangement was ordered, her Honour at paragraph 71 said: “…the father gave no evidence that would satisfy the Court that he has really considered how he would provide care to an eight year old if he was responsible for looking after her for fifty percent of the time”. Paragraph 72-discusses the Mother’s work hours and how she is reliant on the maternal grandmother in providing care for the children. Paragraph 79 – refers to [Dr Q’s] opinion as to the willingness of the Mother to leave a lot of parenting to the grandmother as something that was “culturally appropriate” to the Mother. |
| 8 | Continued Police presence in the lives of the children | Paragraph 87-94, 102-107 of the Father’s Affidavit filed 31 October 2011. | Paragraphs 61-65 |
| 9 | Wishes of the children (i.e. [N]) The Father makes an allegation that [N] wishes to spend more time with him | Paragraph 118 of the Father’s Affidavit filed 31 October 2011. | Paragraphs 44-46 Para 46: “The court accepts [Dr Q’s] opinion about [N’s] views and finds that [N] certainly wants to be able to spend more time with her father than she does at present. In other respects, however, the Court needs to be cautious about hiving too much weight to what she has said for the reasons outlined above” Paragraphs 55 and 56 discuss the wishes expressed by [N] and found that it was essentially [N’s] wish to spend more time with her Father than she does at present but that she would like some flexibility in those arrangements. |
| 10 | The relationship between [S] and his Father | Paragraphs 62-66 of the Father’s Affidavit filed 30 April 2012. Paragraph 14 of the Father’s Affidavit filed 2 April 2012. | Paragraph 60 – discussion as to how the mother and maternal grandmother have played a role in the estrangement between the Father and [S]. |
| 11 | The relationship between the children | Paragraph 50-Her Honour refers to the sibling bond and [Dr Q’s] opinion in relation thereto and the risk it could be weakened in time because of the conflict and that the family is so strongly divided. |
The comparison of the father’s affidavit material with the reasons of the Federal Magistrate, published, it should be added, only some nine months prior to the father’s fresh application reveals, in my view, plainly and starkly that the father seeks to re-agitate issues that were determined at a trial and dealt with, in a, with respect, comprehensive and thoughtful manner by the Federal Magistrate who conducted that trial.
Those same comments pertain equally, in my view, to the specific alleged material changes identified by counsel for the father to which I now turn.
The first, and fundamentally important, point that needs to be made is that, whatever the father may think, the parenting case he seeks to agitate is not a “one issue” case, nor is it an inquiry into whether the mother – or indeed he – is a “bad parent” or an “absent parent”, or any other sort of parent. Axiomatically, the case he seeks to agitate has, at its heart, an inquiry into orders that best meet the best interests of these particular children and their particular circumstances.
The fact that there is a need for a court to undertake that inquiry means equally axiomatically that the children are dealing with circumstances that are less than ideal; parents should agree about the co-nurturing of their children. Once parties are unwilling or unable to undertake that fundamental but cooperative task, the Court’s inquiry is a broad based one, informed by mandatory statutory principles and criteria by which “best interests” is to be established.
Even a cursory reading of Walker FM’s reasons, and indeed the comprehensive report from Dr Q, reveals the breadth and depth of the issues for these children and the consideration that was carefully given to them.
At pages 56-57 of Dr Q’s report in the proceedings before Walker FM, the doctor said this:
The mother’s history of the father’s violence is not independent information and the father suggests that the allegation of the godfather is not independent either but other evidence such as police files and reports tend to suggest otherwise and I note that he was found guilty on this charge. The mother also reports stalking behaviour and if this is the case, then it is of concern. [Emphasis added]
It might be thought particularly troubling, then, that the father now seeks to rely upon the affidavits of two “private investigators” who, upon instructions from or on behalf of him sought, to use their words, to “surveil” the wife. That surveillance, which includes being “advised by the client to return [at 8.30 pm] to work address and check if the lights remain on inside the shop” is contained in two affidavits.
Questions arise as to whether that “evidence” might in any event be excluded, pursuant to sections 135 and 136 of the Evidence Act1995 (Cth) at a trial.
Leaving that matter aside, the evidence is, of course, quintessentially self-serving. The nature, timing and circumstances of the “surveillance” is as the “client” and/or the “investigator” chooses.
It is contended that this “evidence” (of surveillance over “13 consecutive nights”) shows “…a prioritisation of [the mother’s] work interest above spending any time at all with her children during the week (and raises) clear and obvious issues about the mother’s attitude to the responsibilities of parenthood” (emphasis in original).
In my view, it shows no such thing.
More importantly, for present purposes, it is “evidence” of precisely the same nature as that which (among many other things) was raised in the proceedings before the Federal Magistrate.
As but one example, paragraph 72 of the Federal Magistrate’s reasons are as follows:
The father was critical of the mother for her working hours and what he said was her non availability for the children. The mother acknowledged that she worked hard in her business. [Dr Q] reported that when the mother at interview said that she worked from 9.00am to 5.30pm, [S] corrected her and that she then agreed that she often stayed until 6.00 pm or 6.30pm. [Dr Q] said that [S] challenged this and said it was more like 7.00pm. The mother agreed that an issue raised in the therapy with [Dr E] was that [S] wanted her to be more available for him. She said that she had spoken to [Dr E] about how this could be done and that she tried to spend as much time as possible with [S]. Availability for the children does seem to be an issue for the mother. It was something which she reluctantly acknowledged. It is clear that she relies very much on the maternal grandmother to assist her.
That is particularly troubling in light of what the Federal Magistrate found at paragraph 75 of her reasons:
[Dr Q’s] opinion was that the father’s attitude had not altered. There was no doubt that this, unfortunately, remained the case. This was apparent in his evidence about the recent changeover involving the grandmother. It was evidence too, at hearing, that father showed no capacity to modify his position on matters in dispute or acknowledge that his actions could be detrimental to the children. If anything, the father became less restrained in his emotions and less able to focus on the issues when the hearing resumed on 3 November 2009, after a period of some seven weeks. In [Dr Q’s] opinion, the father is deeply affected by the belief that he has been cheated and betrayed by the mother in circumstances where he did not want the marriage to end and had great difficulty giving up his attachment to her. She thought that he was very agitated and preoccupied by these matters and that aspects of his behaviour may need to be understood in the light of his reaction to the family situation. The Court accepts that this is the case. However a consequence may be that the father loses the ability to be able to see in a rational way what [N’s] needs are. His behaviour is likely to have the consequence of further entrenching [S’s] views given [S’s] alignment with his mother and grandmother at this time.
Subsequent to those, with respect, insightful and thoughtful comments, I observe that the father’s reaction has been, in part, to instruct private investigators to “surveil” the mother of his children.
Even more troubling and in the context of the current application, telling, the father deposes in his own affidavit:
In these proceedings, I am determined to prove that [S] has been alienated by the respondent as well as the grandmother. I will prove to the Court that the respondent, with her mother, had been alienating [S] against me for a very long time.
In another passage in the same affidavit, he says, perhaps even more troublingly and tellingly:
The orders of 11 February 2011 are unworkable. I require orders addressing every issue in relation to parenting. I will not agree with an order permitting “liberal” or “as agreed time between the parties”. [Emphasis added]
I use the word “troubling” in respect of matters emanating from the father’s own evidence in light of the findings made by the Federal Magistrate only a few months prior to the father deposing to those matters in his affidavit and the careful, thoughtful and comprehensive analysis undertaken by Dr Q.
It appears that the father has not taken on board one single, solitary word that Dr Q has put in her report, nor taken on board one single, solitary word contained in the Federal Magistrate’s reasons.
In all of the circumstance of this case, I am entirely convinced that there is no material change in circumstances in the sense in which that expression is used in the cases applying the so-called “rule” in Rice v Asplund.
Moreover, I can see no reason in the children’s best interests, why the issues sought to be agitated by the father should be permitted to proceed. Indeed, I consider doing so, antithetical to the children’s best interests.
I will order accordingly.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 18 May 2012.
Associate:
Date: 24 May 2012
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