Heller & Fullagar
[2023] FedCFamC1F 27
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Heller & Fullagar [2023] FedCFamC1F 27
File number(s): MLC 7559 of 2019 Judgment of: HARTNETT J Date of judgment: 7 February 2023 Catchwords: FAMILY LAW – PARENTING - Rice v Asplund - Where the father seeks to vary final parenting orders – Where the father claims there has been a change of circumstances – Where the father claims the final orders are no longer in the children’s best interests – Where the father seeks sole parental responsibility – Where the father seeks a change to the children’s residence –Where the eldest child suffers from serious health and behavioural issues – Multiple intervention orders between the parties – Intervention order between the mother and the eldest child – Where the mother has brought criminal charges against the eldest child – Where Victoria Police has attended the mother’s residence in the presence of the children on multiple occasions – Where the father has breached previous court orders – Where the mother seeks summary dismissal – Where both parents have an acrimonious relationship – Where no significant change in circumstances since the making of final orders – Where the father’s application is dismissed – Where all outstanding applications are dismissed.
FAMILY LAW – COSTS – Where the mother sought costs on an indemnity basis – Where the father’s application was wholly unsuccessful – Where the father pay party and party costs of and incidental to the proceedings.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09, 12.17
Cases cited: Baisman & Cartmill [2022] FedCFamC1A 36
Carriel & Lendrum (2015) FLC 93-640
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Defrey & Radnor (No 2) [2021] FamCAFC 139
DL & W (2012) FLC 93-496
Goode & Goode (2006) FLC 93-286
Munday v Bowman (1997) FLC 92-784
Penfold v Penfold (1980) 144 CLR 311
Rice v Asplund (1979) FLC 90-725
Sfankianakis & Sfankianakis [2019] FamCAFC 54
SPS v PLS (2008) FLC 93-363
Walden & Cooper [2020] FamCA 104
Walter & Walter [2016] FamCAFC 56
Zabaneh (1986) FLC 91-766
Division: Division 1 First Instance Number of paragraphs: 149 Date of hearing: 15 September 2022 Place: Melbourne Counsel for the Applicant: Mr Goddard Solicitor for the Applicant: Higgins Legal Counsel for the Respondent: Ms Mansfield Solicitor for the Respondent: Cantwell Family Lawyers ORDERS
MLC 7559 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FULLAGAR
Applicant
AND: MS HELLER
Respondent
order made by:
HARTNETT J
DATE OF ORDER:
7 February 2023
THE COURT ORDERS THAT:
1.The applicant’s Amended Initiating Application filed on 30 August 2022 is dismissed.
2.Any and all other outstanding applications under Part VII of the Family Law Act 1975 (Cth) are dismissed.
3.The applicant shall pay the respondent’s party and party costs of and incidental to the proceedings, as agreed in writing within 14 days hereof and failing such agreement as assessed pursuant to Chapter 12 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) to include any costs fixed and reserved in the conduct of the applicant’s Application.
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 the pseudonym Heller & Fullagar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
On 22 March 2022, final parenting orders were made by consent. Those orders provided for the respondent mother (“the mother”) to have sole parental responsibility of the children of the relationship, namely X (“X”) born in 2010 now aged 12 years, Y (“Y”) born in 2011, now aged 11 years, and Z (“Z”) born in 2013, now aged 9 years, collectively known as the children (“the children”); for the children to live with the mother; and for the children to spend time with the applicant father (“the father”) on a fortnightly basis from Wednesday to Monday, and otherwise for one half of the school holidays, and special occasion time. Otherwise, relevantly, the parties were to ensure the children received counselling and treatment (as directed by the professionals engaged by the mother to assist the children) and both parties were themselves to engage in individual therapy. Further, the father was restrained by injunction from attending upon the children’s school at times not specifically provided for by the orders made, and neither party was to remove the children from the Commonwealth of Australia without the consent in writing of the other.
Following the making of the final parenting orders, the mother filed two enforcement applications. The first enforcement application was filed 19 April 2022, and the second enforcement application was filed 25 July 2022.
In respect of the first enforcement application, on 24 May 2022, the Court made orders that the father deliver the child X to the mother’s home on 25 May 2022. In the event the father failed to comply with that order, a recovery order was also made requesting the Australian Federal Police to recover the child and return him to the mother’s care. Whilst the orders made 22 March 2022 remained in full force and effect, the orders providing for the father’s time spent with the children were suspended in operation from 25 May 2022 to 22 June 2022. Further orders were made, relevantly, that the father be restrained from communicating with or accepting communication from, X, with the father to strictly comply with the orders made that day. Order 6 provided for the father to pay the mother’s costs of the enforcement application, fixed in the sum of $8,000.00. At the hearing of this matter, that costs order remained outstanding.
In respect of the second enforcement application, on 27 July 2022, a Senior Judicial Registrar made interim orders including, relevantly, that the father’s time spent with the children in accordance with the final orders of 22 March 2022 be suspended in operation until further order. The mother’s costs of the hearing were fixed in the sum of $3,092 and reserved. The enforcement hearing was otherwise adjourned to 19 August 2022 before a Senior Judicial Registrar. The outcome of that further hearing included that the children’s time with their father was suspended until 2 October 2022; the father was given a further period in which to comply with the property orders, in particular payment to the mother; and a costs order was made against the father in respect of the earlier reserved sum of $3,092 for the hearing on 27 July 2022, such that Order 17 provided for the father to pay to the mother a costs sum of $3,092.
On 16 August 2022, the father filed an Initiating Application seeking to discharge all then existing orders, and to dismiss the mother’s enforcement application filed 25 July 2022. The father sought, relevantly, further final orders that he have sole parental responsibility for the children; that the children live with him; and that the children spend time with the mother in a fortnightly cycle from Wednesday until Monday; half of all school term holidays; and on a week about basis during the summer school holiday period. The father further sought the mother’s time with X be suspended until she provided evidence to the husband and the Court of all recommendations made by Dr B (“Dr B”) in his psychiatric assessment of her as made on 8 June 2020. Additionally, the husband sought that any time spent between the mother and X be conditional upon the parties receiving written confirmation from X’s psychologist, or some other suitably qualified professional that there was no risk to X in residing in the unsupervised care of the mother. The father sought that once these proposed conditions were satisfied, the parties engage the C Contact Centre in order to commence supervised visits between the mother and X. The father further sought that each of the children engage in family therapy and individual assessment and therapy, with the father to facilitate these regular sessions; and both parties to actively support, facilitate and participate in an admission for X to the DD Inpatient Unit at E Hospital for the purposes of observation, assessment and recommendations. Any out of pocket expenses were to be shared equally between the parties. Further orders as sought by the father were that both parents complete the EE Program offered by the F Institute at their own expense; that both parties pay half the school fees of the children until the completion of their secondary schooling with both parents to discuss the selection of the school, but in the absence of an agreement, the children’s school to be selected by the father; and that the parties refrain from approaching or remaining within six metres of one another, or of approaching or remaining within 50 metres of any place the other parent lives or works unless agreed.
The father also sought a variation to the final property orders which he had, on the hearing of this matter, not complied with, and which had been the subject of one of the mother’s enforcement proceedings. He sought that the mother pay him monies (instead of the current orders which provide for him to pay to the mother the sum of $154,400). The father ultimately did not proceed with his application in respect of the final property orders made 22 March 2022, and an Order was made by the Court granting him leave to withdraw that part of his application.
On 18 August 2022, the mother filed a Response to an Initiating Application, later amended by an Amended Response to Initiating Application filed on 19 August 2022 and her Further Amended Response to Initiating Application filed 5 September 2022. The mother sought that the father’s Initiating Application filed 16 August 2022 be summarily dismissed pursuant to r 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) or dismissed pursuant to the principles enunciated in Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”). Further, that the father pay the mother’s costs on an indemnity basis.
On 21 August 2022, the father filed a Notice of Child Abuse, Family Violence or Risk (“the Notice”) outlining that he had reported, on 1 April 2022, his allegations of the mother’s physical and psychological and emotional abuse, neglect and exposure to family violence (including threatening comments) of the children, together with his allegations of the same behaviours being perpetrated by the mother against him, to the Department of Families, Fairness & Housing (“DFFH”); the hospital; the school; and those medical practitioners treating the children. The father further stated in the Notice that the mother had been diagnosed by her former psychiatrist Dr G (“Dr G”) with a borderline personality disorder, and that this had a direct effect upon the children, who witnessed her emotional dysregulation. The father alleged the mother failed to undergo weekly psychology sessions. Other allegations made by the father included that X had reported to the Child and Youth Mental Health Service (“CYMHS”) and other child/medical professionals incidents of abuse and family violence which X claimed had occurred in the mother’s care; that X’s brothers, Y and Z, had commenced to exhibit signs of distress due to the conflict between the mother and X; and that X’s behavioural issues were not well managed by the mother, causing the children to be exposed to incidents of family violence and the risk of serious injury. The father sought the mother’s unsupervised time with X be suspended until such time as X had engaged with necessary support services; was not a risk to himself, the mother and his brothers; and that only the father have authority to engage X with the required medical supports.
On 22 August 2022, the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1) and listed for a threshold hearing.
On 30 August 2022, the father filed an Amended Initiating Application seeking the same orders as his Initiating Application on 16 August 2022, save he made provision for the children to spend time with the mother on special occasions; and sought that the parties provide each other with medical records for X and details of medication administered at each change in care; and that the children be at liberty to contact either parent, their older brother Mr W (“Mr W”) and the paternal grandparents on a liberal basis with each parent to facilitate regular FaceTime calls with the other.
In his affidavit filed 30 August 2022, the father claimed that a variation of the orders made 22 March 2022, 24 May 2022, and 19 August 2022 was necessary given the following alleged circumstances:
(1)attempts to implement orders had resulted in serious and significant safety incidents; and continued attempts to implement orders since the enforcement hearing on 24 May 2022 were followed by four police attendances at the mother’s home;
(2)an Interim Family Violence Intervention Order (“FVIO”) was obtained by the police against X; and
(3)the mother supported the police laying charges of criminal damage and assault against X.
The father further asserted, relevantly, that there continued an ongoing pattern of involvement from emergency services whilst the children were in the mother’s care since at least February 2020; that X demonstrated an ability to thrive when away from the conflict occurring between himself and the mother; that the mother had mislead Dr H and the Court regarding X’s engagement with his psychologist, the children’s progress in her care, and other matters; that the mother had failed to facilitate any meaningful and sustained therapeutic supports for the children; and that the mother had mislead medical professionals, and in doing so undermined X’s opportunities for further progress.
On 15 September 2022, the matter proceeded before me as a threshold issue without any cross-examination, as agreed by the parties.
It was the father’s position that a change of circumstances that would warrant a re-visiting of the orders, as considered in Rice v Asplund, had occurred, such that the final parenting orders made on 22 March 2022 were no longer in the children’s best interests. The father relied upon those matters referred to above, namely numerous attendances by the police to the mother’s home; the dysregulated behaviours of X; the assaults by X upon the mother; and the ongoing Court proceedings in relation to the Intervention Order taken out by Victoria Police against X and initially listing the mother, Y and Z as affected family members. He also asserted as further new evidence that the children wished for a changed care arrangement, and were being adversely impacted by their living arrangements as provided for in accordance with the final orders.
The mother contended that the hearing of the father’s substantive application was precluded by the operation of the principles set out in Rice v Asplund, namely that he had failed to establish a prima facie case of changed circumstances.[1]
[1] Defrey & Radnor (No 2) [2021] FamCAFC 139.
LEGAL PRINCIPLES
In Rice v Asplund, a decision of the Full Court of the then Family Court of Australia (now Division 1 of the Federal Circuit and Family Court of Australia) Evatt CJ stated the following:[2]
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 orders is 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.[3]
[2] Rice v Asplund (1979) FLC 90-725 at 78,905.
[3] Rice v Asplund (1979) FLC 90-725.
Many years later, in Walden & Cooper [2020] FamCA 104, Austin J set out the current guiding legal principles, on which I proceed, as follows:
9.The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
10.The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
11.In order to determine the existence and materiality of the asserted change in circumstances, consideration should be given to (Marsden v Winch at [50]):
(a)the past circumstances, including the reasons for the original decision and the evidence upon which it was based;
(b)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; and
(c)if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause.
In Baisman & Cartmill [2022] FedCFamC1A 36 at [11], the Court stated that any change or any non-disclosed evidence from a previous proceeding must be “significant” to justify revisiting parenting arrangements.
In DL & W (2012) FLC 93-496 at [77] and Carriel & Lendrum (2015) FLC 93-640 at [56], the Court stated that in such a consideration as set out above, the Court is not required to adopt the process as set out in Goode & Goode (2006) FLC 93-286, nor is the Court required to discretely address and consider many of the s 60CC of the Family Law Act 1975 (Cth) (“the Act”) factors.
The Court is obliged to take the father’s untested evidence at its highest, unless it is inherently unreliable, the proceeding being a discrete preliminary hearing.[4] The matters raised by the applicant should also not be frivolous or vexatious.
[4] Walter & Walter [2016] FamCAFC 56 at [51].
MATERIAL RELIED UPON
The father relied upon:
(1)an Amended Initiating Application filed 30 August 2022;
(2)his affidavits filed 30 August 2022 and 8 September 2022;
(3)an affidavit of Dr H, filed 24 February 2022;
(4)an affidavit of Dr B filed 31 July 2020; and
(5)his written submissions filed 10 September 2022.
The mother relied upon:
(1)a Further Amended Response to Initiating Application filed 5 September 2022;
(2)her affidavit filed 5 September 2022;
(3)the affidavit of Dr H filed 24 February 2022; and
(4)her written submissions filed 9 September 2022.
RELEVANT BACKGROUND
The father is, and was at the final hearing, self-employed running his own business.
The mother is, and was at the final hearing, employed part time in the allied health industry in addition to studying part time and being engaged in home duties.
The parties commenced a de-facto relationship in early 2001, as claimed by the father, or late 2004/early 2005 as claimed by the mother, and separated on a final basis on 14 January 2019. The father remained with the children in the former matrimonial home until being served with an interim FVIO in January 2019 obtained ex parte by the mother.
The mother has one adult child from a previous relationship, Mr W, born in 1999. The father’s evidence is that he has a strong relationship with Mr W, and has had such relationship since Mr W was 18 months of age. Mr W is estranged from the mother and has been for many years.[5] This is a fact not disputed by the mother.
[5] Father’s affidavit filed 8 September 2022, paragraph 7.
X is a special needs child and has been diagnosed with high function autism spectrum disorder, oppositional defiant disorder (“ODD”), attention deficit hyperactivity disorder (“ADHD”), nocturnal enuresis and a medical condition requiring daily medication.
The children continue to attend J School in FF Town. There has been no change in respect of the parties’ residences, which continue to be in very close geographical proximity to each other.
Proceedings were first commenced by the mother on 8 July 2019. On 11 September 2019, orders were made by consent, providing for X to live with the father and spend time and communicate with the mother pursuant to his wishes.[6] Following an adverse Magistrates Court family violence finding against the father, the children were placed in the mother’s primary care on an interim basis in January 2020.[7] Final parenting and property orders were subsequently made on 22 March 2022 before the conclusion of the trial, and by consent. I observe that there is no evidence presented by the father that suggests his inability to consent to an order, or his inability to understand the nature and consequences of the proceeding which was finalised in March 2022. Nor is there probative evidence of duress. Each of the parties were legally represented and there was an Independent Children’s Lawyer (“ICL”) in the proceeding (who supported the making of the final parenting orders). The parties had given evidence and been cross-examined. Before the Court in evidence were, relevantly, three Family Reports prepared by Dr H (“Dr H”),[8] and psychiatric assessments as performed by Dr B in respect of each of the parties.
[6] Father’s affidavit filed 30 August 2022, paragraph 96.6
[7] Father’s affidavit filed 30 August 2022, paragraph 96.7.
[8] Affidavit of Dr H filed 24 February 2022.
There existed at trial in March 2022, a Final FVIO listing the father as the respondent and the mother as the affected family member. The Order was made in December 2020, in the County Court of Victoria, and is set to expire in September 2024. In 2021, the father appeared before the Magistrates’ Court of Victoria due to one breach of the Final FVIO. The father was found guilty and fined an aggregate of $5,000 with conviction. The father then appealed to the County Court of Victoria. The matter was settled by way of a Diversion Order. The father was required to provide a written apology, pay $3,000 in compensation and was given a good behaviour bond due to end November 2022.[9]
CONSIDERATION
[9] Mother’s affidavit filed 5 September 2022, paragraph 122.
Some relevant episodes which have occurred since the making of final parenting orders
On 27 March 2022, the father delivered the children to the mother’s home. Z and Y, had been in the father’s care since the making of the final orders some five days earlier. X had been in the father’s care since 23 January 2022. Z and Y immediately warned the mother that X was planning on ‘hurting’ her ‘badly’. X entered the mother’s home and approached the mother. X then hit the mother in the face, kicked her repeatedly, kicked his brothers, then left the home. The mother immediately called the father but received no response. The mother then messaged the father requesting his cooperation to enable the parties to work together to support X’s return to her care.[10] Y had told the mother that X had openly made threats and plans to hurt her, including in front of the father, leading up to the changeover. The mother alleged the father was aware of X’s violent intentions prior to changeover, but did not warn her or take preventative action to halt or alter X’s behaviour, placing the mother and the other children at risk.[11] The father called CYMHS in response to this episode.[12]
[10] Mother’s affidavit filed 5 September 2022, paragraph 17.
[11] Mother’s affidavit filed 5 September 2022, paragraph 18.
[12] Father’s written submissions filed 10 September 2022, p.5.
On 29 March 2022, the mother messaged the father to see if X had gone to his home after school as he did not return to her care in accordance with the orders of 22 March 2022. The father did not respond. The maternal grandfather then went to the father’s home to see if X was there. X was there, with the paternal grandmother, in the absence of the father. The maternal grandfather sought to take X home, however was told by the maternal grandmother that she was not allowed to let X go.[13] The grandfather accordingly left the home without X.
[13] Mother’s affidavit filed 5 September 2022, paragraph 20.
On 29 March 2022, the father messaged the mother “noting the wording of court orders and in circumstances where [X] is not engaging with medical professionals and where I am concerned about him, I have been advised as a first step to take him to the [general practitioner] to allow for a preliminary discussion with a medical practitioner in a non-emergency setting”.[14] The father did not provide the mother with the details of the general practitioner, so the mother could be involved in discussions. The mother responded she was already organising appropriate referrals. At the time X was engaged with K Psychology and the mother had directed medical intervention.[15]
[14] Mother’s affidavit filed 5 September 2022, paragraph 30.
[15] Mother’s affidavit filed 5 September 2022, paragraph 30.
On 30 March 2022, the father sent the mother a message stating “there are no court orders that provide for your parents or yourself to attend at my mother’s home to attempt to remove [X] by force”. [16] In circumstances where the father had not responded to the mother’s message regarding X’s whereabouts, and forceable removal of X was not attempted by the maternal grandfather, the mother asserted the father’s position was unreasonable and obstructionist.[17] On the same day the mother messaged the father to advise that CYMHS had offered her an appointment for X, advising this would involve a “clinician assessing [X’s] mental state, mood, stressors, what support he has in place, school, suicidal ideation etc and they will ask him about his reluctance to engage with professional supports”.[18] The mother advised the father he would be kept updated so he could contribute to discussions. On the same afternoon, the father took X to the general practitioner for referral to the CYMHS. The mother believes this was to advance the father’s own views outside of the process provided for in the final orders.[19]
[16] Mother’s affidavit filed 5 September 2022, paragraph 21.
[17] Mother’s affidavit filed 5 September 2022, paragraph 21.
[18] Mother’s affidavit filed 5 September 2022, paragraph 31.
[19] Mother’s affidavit filed 5 September 2022, paragraph 31.
On the weekend of 2 April 2022, the father made no effort to facilitate a changeover. The mother messaged the father each day to request X be delivered to her home. The father ignored her messages until 4 April 2022, when he messaged the mother “I have consulted with all appropriate supports and external agencies and been advised not to use force in an attempt to implement paragraph 6 of the orders. As previously advised, you will need to collect [X] from school as envisaged by the orders”. [20] The mother also did not support the use of force and claimed the father’s repeated lack of effort combined with ineffective control of X’s behaviours ensured changeovers were unsuccessful.[21]
[20] Mother’s affidavit filed 5 September 2022, paragraph 22.
[21] Mother’s affidavit filed 5 September 2022, paragraph 22.
On 6 April 2022, the father arranged for the children to receive flu vaccinations. The father only messaged the mother as to whether she objected after he had booked an appointment for the children. The mother has sole parental responsibility for the children.[22]
[22] Mother’s affidavit filed 5 September 2022, paragraph 202.
In mid-April 2022, X attended the appointment with CYMHS as arranged by the father, and reported abusive conduct by the mother and a fear of residing in her care.
On 29 April 2022, the father called CYMHS. On his evidence, their assessment was that X’s refusal to co-operate with the final orders and his accompanying dysregulated behaviours were a product of “traumatic events he has experienced when in his mother’s care”.[23] The mother’s evidence is that following a Freedom of Information request by her for all case notes and files from CYMHS, the direct quote the father attributes to CYMHS is not contained in X’s medical records.[24]
[23] Father’s affidavit filed 26 July 2022, paragraph 41.
[24] Mother’s affidavit filed 18 August 2022, paragraph 44.
In mid-May 2022, the father took X to a general practitioner for a Mental Health Care Plan, again ignoring the final parenting orders of 22 March 2022.
On 25 May 2022, and as a result of Court Order, the father returned X to the mother. He had withheld X since late March 2022.
In late May 2022, the father gave X permission to go out bike riding with his friend, during a period when X was to have been in the mother’s care in accordance with the orders of the Court. X had gone to the father’s home to retrieve his phone on the day prior and remained without the mother’s consent. The mother did not consent with the arrangements made by the father. X remained out for a number of hours, after refusing to return from his bike ride. His medication levels became low, and he became erratic, requiring police assistance to encourage him to return home to the mother and appropriately manage his medical condition.[25]
[25] Mother’s affidavit filed 5 September 2022, paragraph 36.
In early July 2022, Y arrived at the mother’s home in tears due to X teasing and hurting him as they entered the home. X then began to provoke an argument by kicking and denigrating both the mother and Y. X threatened to break the mother’s glasses. The mother grabbed hold of the back of X’s t-shirt, and claimed that she accidentally scratched him in the process. On the father’s evidence, X alleged that his mother also squeezed his neck with both hands. X then pulled the mother to the ground, placed his arms around her neck and began to hit and kick her. X told the mother he could kill her if he wanted. Y became distressed and ran to the neighbour’s house. X became enraged when he could not find Y, and began searching for him in neighbouring properties. After being unable to locate him, X returned to the father’s home. The mother then contacted the police. The police contacted the father’s household and were told by the paternal grandmother that the father had taken X to the hospital. The police told the mother they attended upon the hospital where they had seen X’s scratches, and that the scratches were a minor injury and did not require hospital attention. X was triaged at the hospital. He did not require any further medical assistance. The hospital reported the matter to the DFFH, and X was discharged by the hospital into the father’s care.[26] Despite no medical assistance being required, the father took X to the hospital the following day.[27]
[26] Father’s affidavit filed 30 August 2022, paragraph 51.
[27] Mother’s affidavit filed 18 August 2022, paragraph 32.
It was the mother’s evidence that after returning from the hospital, X was convinced she was “a bad person and a child abuser”.[28] The mother alleges that the father’s conduct, including exposing X to an abuse complaint procedure at the hospital diminished her in X’s eyes and that X’s immediate physical response a few days later, set out below, illustrates the negligence and risk of the father’s conduct.[29]
[28] Father’s affidavit filed 30 August 2022, paragraph 51.
[29] Mother’s affidavit filed 18 August 2022, paragraph 33.
The next day, X was returned to the mother’s care by the father. The father had again withheld X. Whilst in her care, the mother refused to download an app for X and he began to push and hit the mother, and pull her to the ground. Z screamed at X to stop but he continued to kick and hit the mother. Z called 000, but hung up after X told him he would stop if he hung up the phone. X stopped temporarily, but resumed again. The mother then activated the duress alarm she has historically used to call the police, and Y went to the neighbours for help. Z then sent the father a message on his smart watch asking to be picked up and that he was scared. When the neighbour arrived X was shouting abuse and throwing things around the room. While waiting for the police to arrive, X’s behaviour somewhat calmed but he continued pacing around the house, on edge. X left to go to the father’s house only a few minutes before the police arrived, taking Z's smart watch with him.
The day after, the father returned X to the mother’s home. X told the mother she was rich; only interested in taking money from the father; that the father had reported her to the police for child abuse; and that the police knew about the lies the mother had told the Court. X then proceeded to look through the kitchen. He discovered one sharp knife, and began waving and pointing the knife saying he would kill the mother if she did not do what he wanted. The mother managed to recover the knife. X then went downstairs to play the Xbox, and without permission, he used the Xbox to purchase two age restricted games. When the mother approached X and told him he could not keep the games and was required to reverse the transactions, X became angry; said “see ya fucker” to the mother; and left again to go to his father’s home.[30] The father then returned X to the mother’s home. X approached the front door and told the mother she did not love him and she was a “child abuser”.[31] X snatched the mother’s glasses off her face and ran down the street. The father had pulled his car up next to X and observed X destroying the mother’s glasses, including twisting and bending them before then throwing them on the ground and stomping on them. The father did nothing to stop him. X then threw the smashed spectacles at the mother. As the mother approached, X charged at the mother repeatedly kicking and hitting her on the legs and back as she lay on the ground. The father eventually called X to him and X walked away. The father did not speak to or assist the mother after the assault. As the mother got up off the ground X turned and charged at her hitting her with his fists and pushing her. The father called to X a second time, told X to get in the car and drove away.[32] On the same day the father messaged the mother “I have continued to offer [X] reassurance, encouragement and compassion in relation to the traumatic experience he has described”.[33] The mother claims that by disregarding advice about X’s behaviours, and providing X sympathy for traumatic experiences, the father has provided mismatched parental responses that serve to fuel and empower the use of violence by X. The mother is concerned the father is more focused on gathering ‘evidence’ he feels would be adverse to her, than appropriately parenting and addressing X’s unprovoked and unacceptable behaviours.[34]
[30] Mother’s affidavit filed 5 September 2022, paragraph 43.
[31] Mother’s affidavit filed 5 September 2022, paragraph 44.
[32] Mother’s affidavit filed 5 September 2022, paragraph 44.
[33] Mother’s affidavit filed 5 September 2022, paragraph 48.
[34] Mother’s affidavit filed 5 September 2022, paragraph 48.
X then attended the L Town Police Station to be formally interviewed about his assault upon the mother with the father in attendance. X gave a no comment interview and had not been formally charged on the hearing of this matter. He was released pending summons. The father advised X to give a no comment interview. The mother claims the father encouraged X not to take responsibility for his actions, reinforcing to X that he does not have to consider rules, laws and social norms or boundaries.[35]
[35] Mother’s affidavit filed 5 September 2022, paragraph 47.
In July 2022, an interim FVIO was made at the HH Region Court against X listing the mother, Y and Z as protected persons.[36] The interim FVIO did not suspend the final orders with respect to parenting.[37]
[36] Mother’s affidavit filed 5 September 2022, paragraph 49.
[37] Mother’s affidavit filed 5 September 2022, paragraph 50.
In July 2022, X was served with the interim FVIO and the father engaged X with Victoria Police Youth Support Services.
On 13 July 2022, the mother instructed her solicitors to write to the father regarding her concern about the younger two children being accommodated at the father’s home with X then living there pending the interim FVIO matter returning to Court in August 2022. The father was notified that the mother would be providing a copy of the interim FVIO to the school, and contacting the school regarding her safety concerns for the younger children being released into the father’s care, and that she did not consent to same in such circumstances.[38] When the mother arrived to collect the children from school that afternoon, she was informed the father had collected the children from school prior to the conclusion of school to avoid her collecting them.[39] This was notwithstanding the final orders provision for the children’s time with their father to not commence until the conclusion of school.[40]
[38] Mother’s affidavit filed 5 September 2022, paragraph 51.
[39] Mother’s affidavit filed 5 September 2022, paragraph 52.
[40] Mother’s affidavit filed 5 September 2022, paragraph 53.
On 14 July 2022, the mother instructed her solicitors to write to the father noting her concerns about him breaching the final orders, and to ensure the two younger children were safe from X. X had previously hurt his brothers whilst in the care of the father, the most serious assault being when X deliberately injured Y requiring Y to be taken to hospital for stitches.[41] The mother stated that following the father having care of the children between 13 July and 18 July 2022, the mother requested the return of X to her home in circumstances wherein therein had been no issues between the boys.[42] The children were due to return to the mother’s care on 18 July 2022 pursuant to final orders. The father failed to return X to the mother’s care in breach of the orders, withholding X despite returning the other two children. The school informed the mother that the father collected X from school early on 18 July 2022 at 12.00pm.[43]
[41] Mother’s affidavit filed 5 September 2022, paragraph 54.
[42] Mother’s affidavit filed 18 August 2022, paragraph 36.
[43] Mother’s affidavit filed 5 September 2022, paragraph 56.
On 28 July 2022, the father facilitated X’s attendance at a psychology appointment.
In early August 2022, the police FVIVO application against X was listed for mention at the HH Region Court. The conditions of the Interim FVIO against X have been relaxed enabling X to return to the mother’s home to be in contact with the mother and his brothers, conditional on him not committing family violence or damaging property.[44]
[44] Mother’s affidavit filed 5 September 2022, paragraphs 58-59.
On 3 August 2022, the mother received an email from M Family Services advising the complaint raised by the father, and reported to the DFFH, concerning his taking of X to the hospital in respect of the scratches caused by the mother, had been closed at intake.[45]
[45] Mother’s affidavit filed 5 September 2022, paragraph 153.
In August 2022, the father facilitated X’s attendance at an appointment with a paediatrician.
On 20 August 2022, the mother sent the father a message asking him to consider allowing X to bring his bike, phone and smart watch with him when he returned to her care that day. The mother requested the father grant her access to monitor the phone and smart watch whilst X was in her care, via access to parental supervision. The father refused. The father then delivered X to the mother’s home later that day without his bike, phone or smart watch. It was clear from the outset this would cause problems with X which the mother claims the father knew.[46]
[46] Mother’s affidavit filed 5 September 2022, paragraph 99.
X returned to the mother’s full time care on 20 August 2022. Between then, and prior to the hearing date of 15 September 2022, the father contacted the school seeking a welfare check of the children. The school informed the father that there were no major issues and the “boys were travelling ok”.[47]
[47] Mother’s affidavit filed 5 September 2022, paragraph 105.
On 28 August 2022, X secretly spat out his night time medicine, , which helps him to sleep. The mother asked X to get ready for bed. He responded with anger, hitting and kicking the mother. X threatened to call the father and “tell on” the mother for child abuse. [48] X called the father in front of the mother and said “mum is doing child abuse and threatening to put me in jail”. [49] Z then tried to call the father to tell him that “X had lied”. [50] That night X did not sleep. In the morning X was too tired to go to school. The mother let him sleep, taking him to school in a rested and happy mood just after 11.30am.[51]
[48] Mother’s affidavit filed 5 September 2022, paragraph 103.
[49] Mother’s affidavit filed 5 September 2022, paragraph 103.
[50] Mother’s affidavit filed 5 September 2022, paragraph 103.
[51] Mother’s affidavit filed 5 September 2022, paragraph 103.
In late August 2022, the interim FVIO matter was before the HH Region Court. X refused to attend and told the mother she was a “child abuser” and was trying to send him to jail.[52] The mother notified police prosecutors X was refusing to attend and consequently she had delivered him to school. The police later contacted the mother and told her the hearing would be adjourned until October 2022. It was the mother’s hope that X would be willing to attend at court, apologise and take responsibility for his behaviour with the matter to be resolved by way of undertaking.[53]
[52] Mother’s affidavit filed 5 September 2022, paragraph 60.
[53] Mother’s affidavit filed 5 September 2022, paragraph 60.
On 31 August 2022, X again secretly spat out his morning medications for ADHD, and for aggression.[54] The mother suspected as much, as X’s behaviour was very loud and hyperactive. At the end of the school day, X was in an elevated and energetic mood, however was upset that the teacher on duty had rebuked him for running to the car too early. As the mother drove away from the school, X wound down his window and called the teacher a ‘fucking bitch’ and said that he was going to ‘kill’ her.[55] X then began to hit and flick the side of the mother’s face, trying to knock her glasses off. The mother reached out with her left arm to hold X still whilst she moved out of traffic and X accused her of child abuse. When the mother stopped at an intersection not far from the paternal grandmother’s home, X got out of the car and ran off. The mother followed X to the home of the paternal grandmother being also the home where the father resides. The paternal grandmother allegedly advised the mother that the father was overseas on holiday. X’s hyperactive behaviours continued, and X began to push and hit the mother. Each time the mother held up her arms to protect herself or hold him away he would say it was ‘child abuse’.[56] After X had calmed down, and the mother had asked if there was anything she could do to make things better for him, he responded he wanted his bike. The paternal grandmother advised she would speak to the father about the bike, however the father refused to allow X to take it home with him.[57] That refusal has continued.
[54] Mother’s affidavit filed 5 September 2022, paragraph 104.
[55] Mother’s affidavit filed 5 September 2022, paragraph 104.
[56] Mother’s affidavit filed 5 September 2022, paragraph 104.
[57] Mother’s affidavit filed 5 September 2022, paragraph 104.
On 1 September 2022, the father again requested the school provide a welfare check for alleged injuries to X’s face. The school confirmed with the father there were no signs of injuries to X’s face and no basis for any such welfare check.[58]
[58] Mother’s affidavit filed 5 September 2022, paragraph 107.
Family violence
The father contends that a fresh investigation is needed.[59] The father submits that taking the mother’s case at its best, the children have been and continue to be exposed to incidents of family violence in her care, irrespective of whether those incidents are instigated by X, the mother or both.[60] He states that X continues to breach the interim FVIO in her care, exposing him to the risk of further criminal proceedings.[61]
[59] Father’s written submissions filed 10 September 2022, p.3.
[60] Father’s written submissions filed 9 September 2022, p.3.
[61] Father’s written submissions filed 10 September 2022, p.4.
The mother contends the current parenting orders are progressing well in the circumstances, these circumstances including the father’s continuing undermining of the orders and X’s special needs. She notes that X is at school, albeit there are some difficulties with his behaviour whilst at school. The mother denies ever emotionally or physically abusing X, and claims she has never been interviewed by the DFFH, including in relation to any allegations of abuse.[62] The father provides no evidence to counter that claim.
[62] Mother’s affidavit filed 5 September 2022, paragraph 171.
X’s behaviour
It is common ground that X has had anger issues, mood swings, violent thoughts and aberrant behaviours from a young age. At the age of four he was referred to a paediatrician in relation to these issues.
At the final hearing in March 2022, the parties acknowledged that X would initially find it difficult to move between homes given that X at that time had spent no time with the mother since 23 January 2022 (when the father elected to withhold X from the mother’s care).[63]
[63] Mother’s affidavit filed 5 September 2022, paragraph 11.
It is the father’s evidence that he has engaged X with the proactive targeting team of Victoria Police who assigned two Officers to speak with X about his behaviours and difficulties with his mother.[64] The father’s further evidence is that he has messaged X in relation his non-use of violence, and sought such message be reinforced in X’s discussions with medical professionals, the police, school staff, his older brother Mr W and the paternal grandmother.[65]
[64] Father’s affidavit filed 30 August 2022, paragraph 57.5.
[65] Father’s affidavit filed 30 August 2022, paragraph 57.4.
The father’s further evidence is that it is only in the mother’s care, that X exhibits high levels of dysregulated behaviour. The father claims such extreme behaviours do not occur in his care, when X is at school, where is engaging well, when he is with friends, or when he is involved in activities.[66]
[66] Father’s affidavit filed 8 September 2022, paragraph 59.
It is the mother’s evidence that X has now been closely supervised at school, in particular given the Interim FVIO. The mother claims X has spent limited time with his brothers, in large part due to the father withholding X, and states that to draw the conclusion, as the father has done in his evidence, without any supportive evidence from the school, that X is settled and engaging well with his learning, ignores context. Further, that X’s diagnosed special needs do not go away simply because he is in the care of one parent only.[67]
[67] Mother’s affidavit filed 5 September 2022, paragraph 168.
Police attendances
There have been numerous attendances by Victoria Police upon the home of the mother due to X’s violent and aggressive behaviours. The mother claims that X has faced minimal, if any, consequences for his violent behaviour towards herself and his brothers.
The father claims the mother has called the police on numerous occasions since at least February 2020, and the children have made repeated references to the mother threatening to call the police since that time.[68] The father claims this is likely to significantly impact X, and that the conflict between X and the mother may result in the involvement of the criminal justice system and anti-social behaviour being exhibited by X.[69] The mother does not deny that the police have attended upon her home at her request on occasion. This need for police assistance pre-dated the making of the orders. On the father’s case, by a period of two years. The mother disputes the father has a genuine concern as to this matter. The mother contends if the father was genuinely concerned, he would have intervened during X’s assault on her, which I note he did not. Further, he supported X providing a ‘no comment’ police interview, and did not facilitate X’s attendance at Court in August 2022, both actions which the mother claims did not assist X in acknowledging his wrongdoing and understanding the consequences.[70]
[68] Father’s affidavit filed 8 September 2022, paragraph 21.
[69] Father’s affidavit filed 30 August 2022, paragraphs 99.4-99.5.
[70] Mother’s affidavit filed 18 August 2022, paragraph 69.
Alleged child abuse
It was the father’s evidence that X has made multiple disclosures of abuse by the mother since the final orders were made.[71] The father’s allegations of the mother’s abuse of X, as reported by X, and otherwise, were a feature of the earlier litigation which concluded with the final orders in March 2022. The mother has denied such allegations of abuse and continues to do so, including by reference to those more recent but similar claims made by X, for instance as expressed in his April 2022 engagement with CYMHS.[72] Further whilst there continues to be compliant made by the father to an array of doctors and/or hospitals, and/or the school, in respect of the mother’s alleged family violence toward X, there remains no action taken by the DFFH indicative of the DFFH having protective concerns in respect of the relationship between the mother and X. This, however, does not deter the father who continues to undermine the operation of the final orders.
[71] Father’s written submissions filed 10 September 2022, p.3.
[72] Father’s affidavit filed 8 September 2022, paragraph 72.
Relationship between X and the mother
The mother revealed to CYMHS in late May 2020, almost two years prior to the making of the final orders in March 2022, that she was physically afraid of X and that his siblings were afraid that he would kill them. The mother has worked since that time and ongoing to regulate X’s behaviours and have him enjoy the company of his siblings and be secure within her home and his external environment.[73]
[73] Father’s written submissions filed 10 September 2022, p.2.
The father claims the relationship between X and the mother has continued to deteriorate and that the significant problems in the relationship have only further increased since the family’s last meeting with Dr H in September 2021. He nevertheless consented to the final orders in March 2022 wherein X lives with the mother and his brothers. At the time, the evidence of Dr H was before the Court. Since the making of the final orders, the father has continued withholding X, and has continued his disparagement of the mother’s care of the children.
Conflict between the children
The father has expressed concern about the frequent conflict between Y and X, specifically teasing and antagonising each other. He claims there is a fractured sibling dynamic. The father contends there is new evidence that reveals the current problems in the relationship between X and the mother, and the sibling dynamic, which have been evident since early 2020. He claims the mother asserted to Dr H at a time when the parties and children were attending upon her that things were improving in the family relationships, despite his claim that there was an escalation of these issues.[74]
[74] Father’s written submissions filed 10 September 2022, p.2.
The father further claims there has been an ongoing pattern of conflict and violence between each of the children, including a number of incidents observed at school.[75] During August 2022, the school allegedly contacted the father on four occasions in relation to difficulties with the support and resourcing required for X and his brothers. This was during the mother’s care time. The father claims the care arrangements as provided for in the final orders are impacting upon the children adversely and that there have been altercations between each of them at school and with other students.
Medical circumstances
[75] Father’s affidavit filed 8 September 2022, paragraphs 14.2, 14.3.
Failing to administer medication
The father is of the belief X’s absences from school from time to time, have been due to the mother failing to administer his medications. X’s school has reported there are no issues in administering medications to X, thus the father claims this issue remains isolated to events which occur in the mother’s care.[76] Furthermore, he claims to have been raising concerns since 2021, that the mother has not been reliably administering medications to X.[77] That is, these concerns of the father pre-dated the making of the final orders, and are continuing.
[76] Father’s affidavit filed 8 September 2022, paragraph 54.
[77] Father’s affidavit filed 8 September 2022, paragraph 23.
The mother claims she has always administered medications as prescribed to X, and that the father is not present in her home to make such comments.[78] She acknowledges that X has, at times, spat out medications and that she has allowed him to miss minor school hours at times when he appears to need to sleep, or be otherwise not able to attend at school. Overall however, the evidence is that X attends school consistently.
[78] Mother’s affidavit filed 5 September 2022, paragraph 183.
The final orders provide the mother with sole parental responsibility for the children and do not provide for the father to engage any services or treaters for the children including in relation to all medical issues. The father’s actions are contrary to this order. The father has been made aware of the services the mother has sought to engage to support X.[79] At trial, the mother stated she engaged with the children’s school, CYMHS and an integrated family service worker through M Family Services to assist in regulating and improving X’s behavioural issues.
[79] Mother’s affidavit filed 5 September 2022, paragraph 135.
X’s psychology appointments
It was the father’s evidence the mother allowed X’s psychology sessions to lapse over a period of 18 months. This situation was not remedied until 2022, whilst X was in the father’s care, and after the mother filed an Enforcement Application. The mother disputes this and claims she has continued to facilitate X’s engagement, where possible, with therapeutic supports when he has been in her primary care. However, support services were interrupted in the COVID-19 lockdowns in 2020 and 2021 such that X did not attend all of his psychology sessions with CYMHS. The mother otherwise facilitated X’s attendance at his appointments as required.[80]
[80] Mother’s affidavit filed 5 September 2022, paragraph 136.
X was engaged with CYMHS in February 2020, after an unacceptable act of aggression, where he threatened Y and the mother with a kitchen knife having sought additional access to the home Wi-Fi network. The mother claims this is not new information, and has been well documented in Family Reports and was covered in depth during her evidence in chief and the father’s evidence in chief at the Final Hearing on 21 March 2022.[81]
[81] Mother’s affidavit filed 18 August 2022, paragraph 89.
The father claims CYMHS became involved in February 2020 as a consequence of X’s inability to adjust to time in the mother’s primary care. This was four weeks after X was placed in the mother’s care on an interim basis.
The mother acknowledges it was difficult for X to adjust to her primary care after the interim orders were made on 28 January 2020, particularly as X had been retained exclusively by the father for over nine months in 2019. However, after a period of adjustment, X managed moving between homes successfully until mid-2021. The mother claims X’s subsequent deterioration coincided with the father filing an Application for a FVIO against her which was baseless and without merit.[82] The mother claims that X had improved significantly in her primary care since being discharged from CYMHS in May 2021. However, since X was withheld from her and remained predominantly in the father’s care from January 2022, X’s aggression and violence not only returned but escalated.[83]
[82] Mother’s affidavit filed 18 August 2022, paragraph 103.
[83] Mother’s affidavit filed 5 September 2022, paragraph 191.
The mother contends since 27 March 2022 the father has obstructed X obtaining immediate emergency care by misrepresenting X’s needs and presentation. On 27 March 2022, the mother received a message from the father “CYMHS were quite firm that in circumstances of parent/child relationship difficulties, [X] should be engaged with a psychologist for support with those difficulties and should not be taken to ED for assessment unless he is also presenting as a danger to himself and/or others when away from that trigger. Those risk factors are not present”.[84] The mother claimed the father had obstructed emergency mental health support for X in February 2022, when the mother sought to re-engage X with CYMHS due to his increasing violence and dysfunctional aggressive thinking. Pursuant to the intake notes of CYMHS in February 2022, the father was focused on communicating his concerns about the mother, rather than addressing X’s mental health needs.[85]
[84] Mother’s affidavit filed 5 September 2022, paragraph 26.
[85] Mother’s affidavit filed 5 September 2022, paragraph 27.
Prior to being discharged by CYMHS in May 2021, X was engaged in regular sessions with Mr N of CYMHS covering similar ground to the situation which exists now, and this was progressing well on the mother’s evidence.[86] In late May 2021, CYMHS sent the mother a closure letter discharging X noting he had engaged in multiple appointments and demonstrated significant gains regarding “emotional stability, insightful and reflective understanding of the difficult things occurring in his life”.[87] This was following X being in the mother’s primary care and her having sole parental responsibility for approximately 18 months.[88] X is currently seeing psychologist Mr O, supervised by Mr P (“Mr P”), on a fortnightly basis as claimed by the mother. The mother has been responsible for organising these appointments which occur at X’s school with no involvement from the father, save for an appointment falling during the father’s time.[89] The father disputes this, he claims X had no contact whatsoever with Mr P from 2020 and did not re-engage with a psychologist until 2022 whilst in his care.
[86] Mother’s affidavit filed 18 August 2022, paragraph 62.
[87] Mother’s affidavit filed 5 September 2022, paragraph 130.
[88] Mother’s affidavit filed 18 August 2022, paragraph 62.
[89] Mother’s affidavit filed 5 September 2022, paragraph 194.
The mother’s contrasting evidence is that she made considerable effort to re-engage X with CYMHS with referrals made in both January and March 2022. CYMHS declined to take X on as a patient, instead recommending long-term psychological support. DD Unit admission requires referral from CYMHS with ongoing CYMHS involvement afterwards. X’s previous referral to DD Unit was cancelled in 2021, with CYMHS in agreement, due to his improved behaviour profile.[90]
[90] Mother’s affidavit filed 5 September 2022, paragraph 142.
X consults with paediatrician, Dr Q, every three months as directed. The mother claims X’s treatment has never lapsed despite the father’s claims. X currently sees a psychologist fortnightly and has undertaken a Behaviour Support Plan. In September 2022, X undertook an Educational Profile Review to establish a learning profile more clearly allowing family, educators and support workers to engage with X more effectively and assist with his everyday learning. This is extremely important for X’s transition to secondary school. The mother, at the hearing, was in the process of applying for increased National Disability Insurance Scheme funding to better support X’s needs considering the recent escalation of dysregulation. Extensive supports organised and facilitated by the mother are active.[91]
[91] Mother’s affidavit filed 18 August 2022, paragraph 70(d).
While accessing individual support programs has proved difficult because of limited capacity after COVID-19, the mother’s evidence is that X remains well supported. Care team meetings consisting of the school, M Family Services, D Family Services and X’s psychologist occur monthly. X’s behaviour support plan has been completed and distributed to both parents, X’s current school and intended secondary school.[92]
[92] Mother’s affidavit filed 5 September 2022, paragraph 111.
It was the mother’s evidence that she agrees X requires the implementation of appropriate support services, however she has been unable to engage additional vital support services for X due to the father withholding him from her and refusing to return him to her primary care.[93] With X back in her primary care, it is her evidence that he is back on track with engaging with the necessary support services. Thus, she submits any further change to the current orders could impede X from engaging in necessary support services.
[93] Mother’s affidavit filed 18 August 2022, paragraph 170.
Lack of information provided by the mother
The father states that the mother has provided no information about any appointments actually attended by Y and Z to support the children’s relationship with each other. Further, that he has no confidence that any meaningful engagements will occur, given the mother has had since 28 January 2020 to facilitate such engagements.[94] The father further claims there is nothing to indicate the mother will be able or willing to facilitate support for X noting her long standing failure to do so since the interim orders on 28 January 2020.[95] The father’s concerns in this regard were before the Court at the trial in March 2022.
[94] Father’s affidavit filed 8 September 2022, paragraph 66.
[95] Father’s affidavit filed 8 September 2022, paragraph 31.
The mother continues to dispute the father’s allegations and claims she has always acted inclusively of the father even though she has had sole parental responsibility relating to medical decisions for the children since 28 January 2020.[96]
[96] Mother’s affidavit filed 18 August 2022, paragraph 99.
The mother states she is continuing to work with police including Officer, Ms R, to support X developing a positive relationship with police. This has been ongoing since 2020.[97] The mother has sought a significant number of relevant supports that are already in place for X, and seeks guidance from X’s treaters as to any further supports that may be necessary.[98] The mother has further engaged both Y and Z with an M Family Services Program and a D Family Services Program. The mother also wishes to include X in another M Family Services Program and the D Family Services Program. The D Family Services Program is a program for families who have been impacted by family violence, with specialised supports for individual members of the family, including one on one supports, Child-Parent Therapy and longer-term peer support groups.[99] Both Z and Y continue to meet with the school counsellor from time to time.[100]
[97] Mother’s affidavit filed 5 September 2022, paragraph 111.
[98] Mother’s affidavit filed 5 September 2022, paragraphs 145-146.
[99] Mother’s affidavit filed 5 September 2022, paragraph 110.
[100] Mother’s affidavit filed 5 September 2022, paragraph 148.
Family therapy
It was the father’s evidence that despite Orders 11 and 12 of the orders dated 19 August 2022, that the mother would facilitate family therapy for the children to aid their fractured sibling relationship, the mother has failed to do so stating it was unlikely to be successful and disruptive to the children. The mother disputes this. The mother claimed that over the weekend of 20-21 August 2022 the father proposed two family therapists. On 24 August 2022, the mother instructed her solicitors to write to the father that she did not agree with his nominated family therapists, instead proposing Ms U along with information as to her location and costs, and advised she would update the father as to how the therapy would be conducted.[101] The orders provided for therapy to commence within 60 days and the parties were on the waiting list for the next available appointment.[102]
[101] Mother’s affidavit filed 5 September 2022, paragraph 131.
[102] Mother’s affidavit filed 5 September 2022, paragraph 96.
The mother also considered engaging in family therapy with Dr V (“Dr V”). She alleges the cost is prohibitive, at $15,500, and that she is unable to engage in such family therapy unless the father is prepared to pay for same from the sale proceeds of the KK Town property. Dr V had informed the mother there was no availability until mid-December 2022.[103]
[103] Mother’s affidavit filed 18 August 2022, paragraph 19.
Psychiatric assessment of the mother
The mother disputes the father’s claim she is in need of psychiatric assessment or that she suffers from any mental health illness, despite the father’s continuing narrative, which existed at trial in March 2022, that the mother is mentally unstable.[104] The father claims that the mother’s psychiatrist, Dr G, made a diagnosis of a borderline personality disorder and Dr B observed that the mother exhibits borderline personality traits.[105] The father contends that were it true that Dr G never made such a diagnosis, the mother has had every opportunity since 2019 to provide confirmation of same from Dr G.[106] For the purposes of the trial, it was the single expert, Dr B, psychiatrist, who provided a Psychiatric Assessment in respect of the psychiatric functioning and diagnosis of both parties.
[104] Mother’s affidavit filed 5 September 2022, paragraph 188.
[105] Father’s affidavit filed 8 September 2022, paragraph 55.
[106] Father’s affidavit filed 8 September 2022, paragraph 55.
In the mother’s affidavit filed 18 August 2022, the Court was provided with a letter from Dr AA, consultant psychiatrist, (“Dr AA”) dated 27 July 2022. Dr AA stated she had provided four letters to the Court dated 6 October 2016, 21 March 2019, 19 October 2019 and 25 August 2021. All, I note, being before the Court before the making of the final orders in March 2022. In the July 2022 letter, Dr AA stated the mother had attended her practice a total of 36 times and had a further 12 phone consultations between 2016 and 27 July 2022. The mother had been diligent in attending all appointments with her, and had appropriately taken medical advice. Dr AA read the Family Report of Dr H dated 20 July 2020 and the Psychiatric Assessment of Dr B dated 8 June 2020. Dr AA stated it was not necessary for the mother to continue intensive therapy, but that she would continue to be available to the mother on a needs basis. Dr AA explicitly restated that the mother does not have any psychiatric diagnosis, now or in the past. Specifically she does not have borderline personality disorder or borderline personality traits.[107]
[107] Mother’s affidavit filed 18 August 2022, Annexure MH-2.
In Dr B's Psychiatric Assessment he concluded “[Ms Heller] does not currently suffer from any psychiatric disorder”.[108] He further noted “there is no convincing evidence that her symptoms over the years have ever met the criteria for a psychiatric disorder”.[109]
[108] Psychiatric Report of Dr B dated 8 June 2020, paragraph 49.
[109] Psychiatric Report of Dr B dated 8 June 2020, paragraph 86.
The father’s influence upon the children
At the hearing, the mother’s evidence was there had been no issues with X’s behaviour since his time with the father had been suspended in accordance with Court orders. Such suspension stopped the father’s discussions with X as to the family law proceedings. The mother stated that when X returned to the mother’s care, he frequently accused her of “lying to the Court” and “doing mean things to Dad”.[110] The mother believes the father has created false narratives about herself to X, and has continued to embroil X in adult conflict.
[110] Mother’s affidavit filed 5 September 2022, paragraph 66.
The mother referred to Dr H’s Family Report dated 20 July 2020, at paragraph 103, wherein Dr H stated “Y disclosed that [Mr Fullagar] had discussed adult issues with the children, such as informing the children that “the house should be his””, calling the mother “silly” and that “mum lies a lot”. The mother believes X, having witnessed his father give negative narratives to health professionals diminishes her in X’s eyes, and encourages X to make up false stories about his time in her care to satisfy his father.[111]
[111] Mother’s affidavit filed 18 August 2022, paragraph 48.
The mother remains concerned that the father continues to involve the children in issues of adult conflict, including by probing them about what occurs in the mother’s home when the children are with her. The mother accepts there is some level of conflict between the children from time to time, as claimed by the father (though not to the same degree) which is exacerbated by X’s special needs and the favouritism he receives from the father. However, the mother contends she has a sound ability to manage the sibling dynamic, manage X’s behaviour, and meet the needs of the children despite it being challenging at times.[112]
[112] Mother’s affidavit filed 5 September 2022, paragraph 152.
The mother contends the father has not provided clear boundaries for X and does not enforce boundaries and rules where required, including in circumstances where he has repeatedly allowed X to remain at his home outside of the time prescribed by the final orders.[113] The mother alleges the father fails to take any action to de-escalate matters and his inaction has served to encourage X to further intensify his violence when X returns to his care.[114]
[113] Mother’s affidavit filed 5 September 2022, paragraph 189.
[114] Mother’s affidavit filed 5 September 2022, paragraph 48.
Change to living arrangements
The father claims X has expressed a wish to live solely with him on a permanent basis, as outlined in his police application for the Interim FVIO.[115] Further, in consultations with Dr H the children have expressed a desire for additional time in the father’s care.[116] The father claims this is due to the children being significantly impacted by current family law orders.[117] The father contends not only do the children desire a change in living arrangements but that such change is in their best interests.[118]
[115] Father’s written submissions filed 10 September 2022, p.3.
[116] Father’s affidavit filed 8 September 2022, paragraph 14.13.
[117] Father’s affidavit filed 8 September 2022, paragraph 14.14.
[118] Father’s written submissions filed 10 September 2022, p.3.
The mother claims X does not know what is in his best interests, given he is only 11 years of age and has complex needs. It was the mother’s further evidence that any change to the current orders would not be in the children’s best interests, given the two younger children have been in her primary care since January 2020. The father has demonstrated a history of non-compliance with Court orders, interfering with support services for X, and alienating X from her. The mother is not confident the father would facilitate a meaningful relationship between the children and herself if he were to receive sole parental responsibility and the children were to live primarily with him.[119] This is her position now and was her position at trial in March 2022.
[119] Mother’s affidavit filed 5 September 2022, paragraph 209.
Recommendations of the Family Report Writer
It was the father’s evidence that with X about to begin secondary school, and by reference to the events that have occurred in an attempt to implement current orders as alleged by him, to continue to implement orders contrary to the recommendations of Dr H is no longer possible. He stated there is an urgent need to implement the recommendations of Dr H.[120]
[120] Father’s affidavit filed 8 September 2022, paragraph 32.
Dr H, in the preparation of her report, was aware of many of the challenges involving X.[121] X’s behavioural challenges were well documented, and his special needs were first diagnosed four years prior to separation.[122]
[121] Mother’s affidavit filed 18 August 2022, paragraph 90.
[122] Mother’s affidavit filed 18 August 2022, paragraph 91.
The father seeks the further input of Dr H at this time. The Court is drawn to the comments made in Zabaneh (1986) FLC 91-766 at [172]:
The Court would not wish to subject the children to the repeated intervention of the Court proceedings to the extent that they have to be re-assessed every few months or every year by Court counsellors...
Despite the contentions of the father, the final orders adopt the recommendations and conclusions of Dr H including:
(a)In the absence of additional information to the contrary, it seems that the most appropriate option would be for the children to remain in Ms Heller’s primary care and spend regular time with Mr Fullagar;[123]
(b)The writer remains of the view that Ms Heller presents as the parent more likely and able to facilitate a meaningful ongoing relationship for the children with both parents;[124]
(c)With regards to the issue of parental responsibility, the writer would support one parent having sole parental responsibility for all three children. This would typically rest with the parent who has primary care;[125]
[123] Family Report of Dr H dated 15 November 2021, paragraph 161.
[124] Family Report of Dr H dated 15 November 2021, paragraph 162.
[125] Family Report of Dr H dated 15 November 2021, paragraph 149.
Dr H opined in her Family Report dated 15 November 2021 that:
..if there were sufficient evidence to support the allegations and concerns of [Mr Fullagar], this would give rise to considering alternative care arrangements such as those proposed by him. However, the available information does not support these concerns to the extent posited by [Mr Fullagar]. Further it is noteworthy that [X] and [Y] themselves have identified that the previous arrangement (as per his proposal) was not suitable. However, [Mr Fullagar] presents with a genuine and fixed belief that the children are at risk in [Ms Heller’s] care despite a lack of substantiated evidence. As highlighted in the previous report, this highlights his tendency towards maintaining entrenched views and of disregarding information and alternative possibilities when they do not align with his own perceptions.[126]
[126] Family Report of Dr H dated 15 November 2021, paragraph 159.
Contained within Dr H Family Report of November 2021, is information derived by Dr H from Dr BB (“Dr BB”), the father’s treating psychologist. That evidence raised many of the matters now raised by the father in the guise of changed circumstances. That paragraph was as follows:[127]
[Dr BB] expressed some concerns for the children in [Ms Heller’s] care based on the information provided to her by [Mr Fullagar], such as: that the sibling dynamic had significantly deteriorated, that the children were not engaging well in at-home learning, that [X] had threatened to kill [Ms Heller] and had recorded her disciplining him, that all three children were now swearing profusely, and that [Y] was presenting as dysregulated and possibly evidencing symptoms of depression. [Mr Fullagar] had also raised concerns with her about [Ms Heller] not providing him with sufficient information about [X’s medical needs] and limiting his access to professionals across a range of areas, including the children’s school and medical professionals.
[127] Family Report of Dr H dated 15 November 2021, paragraph 135.
Further, Dr H stated relevantly, at paragraphs 153 to 158 inclusive, the following:[128]
153.Furthermore, it remains a likely scenario that the children feel caught in the middle of their warring parents. The family dynamics are such that the children, particularly [X], want to keep each parent on side. It is not unexpected that this would result in behavioural dysregulation, which is compounded when diagnoses such as ADHD and ODD are also at play. In line with this, it is notable that [X’s] behaviour appears to be amplified at each home rather than at school. Although, it is important to recognise that [X] is not necessarily always acting out in a calculated manner but rather due to a lack of impulse control. Regardless, the writer would support the parties continuing to receive parenting support for [X], particularly as he ages. The writer also strongly encourages greater continuity in the parenting practices across the households. This requires each parent to accept that their differing approaches are not necessarily wholly effective or ineffective.
154.With regards to the care arrangements, [Mr Fullagar] raised a number of concerns about the children remaining in [Ms Heller’s] primary care. This included significant concerns about the sibling dynamic and about [Ms Heller’s] physical safety and perceived poor relationship with [X]. As such, it was his view that the children needed to spend more time with him. This was also his justification for needing to split the siblings, suggesting that [X] primarily lives with him. He believed there was no other alternative and posited that [X] would continue to decline and all three children would continue to become increasingly dysregulated over time if the current arrangement remained.
155.[Mr Fullagar] also purported that [X’s] medical issues had been mismanaged by [Ms Heller]. This includes concerns about [X’s] medication regime in terms of being over-medicated in [Ms Heller’s] care and/or the use of medication as a substitute for effective parenting. [Mr Fullagar] suggested that the information provided by [X’s] treating professionals was not an accurate reflection of the true circumstances as this information was based on [Ms Heller’s] self-report rather than direct observation and interaction with [X].
156.[Mr Fullagar] also suggested that [Ms Heller’s] mental health remained an issue, regardless of whether she met the criteria for a diagnosis, as her behaviour was suggestive of someone who was not able to cope with the demands of parenting all three children. He was concerned that she was not addressing the issues in the dynamic between her and [X], such that her physical safety was at risk as [X] had threatened to kill her.
157.In contrast, [Ms Heller] categorically denied the allegations of [Mr Fullagar] and concerns for the children in her care. She presented a very different view of the situation, stating that the children have coped well with the current arrangements and did not need to be separated from one another. [Ms Heller] was confident that she had demonstrated a sound capacity to appropriately care for all three children and attend to their needs. She acknowledged there was a period during at-home learning that was challenging for [X] but otherwise stated that the children had progressed well in their learning and, also importantly for [X], developed their social networks. As such, she did not see a need to disrupt the current routine and substantially change the arrangements.
158.[Ms Heller] believed [Mr Fullagar] had fabricated such allegations as a means of perpetrating further abuse against her and to support his proposal for more time with the children. She worried that he would not accept any outcome that did not align with his own views and needs or that did not portray her as less competent than him. She purported that this was evidenced by his disregard for court orders and his most recent FVIO application against her. Furthermore, [Ms Heller] worried about [Mr Fullagar] facilitating a relationship between her and all three children in the future if the children were in his care in a greater capacity given his previous failure to do so with [X] in 2019 and difficulty in returning [X] to her care following the current Wednesday afternoon time.
[128] Family Report of Dr H dated 15 November 2021, paragraphs 153-159.
Despite the father’s assertions that Dr H supported that which he seeks now, the evidence does not support his assertion. Rather, Dr H expressed the following opinion:
161.In the absence of additional information to the contrary, it seems that the most appropriate option would be for the children to remain in [Ms Heller’s] primary care and spend regular time with [Mr Fullagar]. However, the writer suggests this could be reconfigured to incorporate one block period of time rather than split across two weeks, given the reported difficulties and disruption with the mid-week time each week. For example, the arrangement could reflect each alternate Wednesday to Monday. Consideration could also be given to equal shared care over the school holidays and regular scheduled FaceTime contact when the children are not in that parent’s care.
162.The writer remains of the view that [Ms Heller] presents as the parent more likely and able to facilitate a meaningful ongoing relationship for the children with both parents. There appears to be support for this notion in the relevant court outcomes and findings pertaining to the family violence allegations. This is further evidenced by [Ms Heller] regularly facilitating the spend time with [Mr Fullagar] over a protracted period. Whilst more recently she has unilaterally ceased the Wednesday afternoon time, she has continued to ensure the weekend time occurs.
163.This was in contrast to the situation and family dynamics in 2019 when [X] was in [Mr Fullagar’s] primary care and [Z] and [Y] lived in a week about arrangement. It is however acknowledged that some of the likely defiance exhibited by [X] is a behavioural manifestation of his diagnoses rather than solely an issue with [Mr Fullagar’s] approach or dislike of [Ms Heller]. As such, it is important to reflect on why [X] may be responding in such a defiant manner in terms of having his needs met. There is likely to be some intrinsic reward for [X] as he has continued to repeat the behaviour of seeking out [Mr Fullagar] outside of the spend time arrangements.
In her evaluation Dr H agreed with the parties that it would be futile to attempt to co-parent moving forward and noted her support that one parent have sole parental responsibility for all three children. That parent being the parent with primary care of the children.
Other matters
It was the mother’s evidence that she is under significant financial strain arising from the father’s non-compliance with the final orders. The mother claims the limited financial resources she does have are quickly being eroded by continued litigation, to the point where she is unable to continue to meet all her expenses. The mother is no longer able to afford to contribute to the payment of private school fees for the children.[129]
[129] Mother’s affidavit filed 5 September 2022, paragraph 162.
The mother has completed the EE Program as recommended by Dr H and engages in individual therapy with Dr AA to address issues canvassed by Dr H in the Family Report pursuant to final orders.[130]
[130] Mother’s affidavit filed 5 September 2022, paragraph 149.
The father regularly engages with his psychologist as recommended by Dr H. He claims to have attended over 40 sessions since early 2021.
The issue of joint management of X’s phone and smart watch, which would advance X’s best interests is simply impossible between the parents. The mother’s evidence is that X uses his phone to assist with reduced working memory (a symptom of ADHD), monitoring his medical condition, keeping in contact with his friends, self-soothing and emotional and sensory regulation. X not having his phone makes day to day functioning harder for him, creating extra stress as well as providing an incentive to return to the father’s home where the phone is kept by the father, rather than remain in the mother’s home.[131] It is the mother’s evidence that X is likely to experience the thought of not having his phone as a threat to his social and psychological well-being, impacting his sense of safety in the world. Such feelings have resulted in X acting in a manner that ensures he keeps his phone, including by avoiding changing homes. The mother states she has consistently ensured responsible use of digital technologies with age-appropriate restrictions and overarching parental control.[132] This is a matter that continues to be fraught and unresolved. It has always been so and is not a changed circumstance.
[131] Mother’s affidavit filed 5 September 2022, paragraph 114.
[132] Mother’s affidavit filed 5 September 2022, paragraph 179.
CONCLUSION
The father, in his affidavit filed 30 August 2022 claims “new evidence” exists that implies the mother has been negligent in her care of the children, has engaged in a course of deception, and is incapable of caring for the children’s needs.[133] However, I find, as submitted by the mother, that the father has pitched his case in exactly the same vein as set out in his trial affidavit filed 4 March 2022.[134]
[133] Father’s affidavit filed 30 August 2022, paragraphs 27, 30.
[134] Mother’s written submissions filed 9 September 2022, p.5.
The father posits that there is “new evidence in the form of medical files that are incompatible with [the mother’s] assertions to the family report writer”.[135] The father fails to set out however, let alone with any precision, what the new evidence entails, making broad brush assertions only. The mother rejects the suggestion that anything contained in those records is enlightening or substantive such as to warrant a revisiting of the orders. In his affidavit in reply of 8 September 2022, the father notes the release to him, on 26 July 2022, of the CYMS material, but fails to isolate, as submitted by the mother and with which I agree, dates and events that are of significance and which exhibit a changed circumstance of such magnitude as to warrant a re-visiting of the litigation.[136]
[135] Father’s affidavit filed 30 August 2022, paragraph 13.
[136] Mother’s written submissions filed 9 September 2022, p.5.
The mother notes that this matter was exhaustively litigated over almost three years. Ultimately, with the benefit of Magistrates, Judges, an ICL, multiple reports and assessments made by psychologists and psychiatrists, it was either determined or agreed that the children’s best interests are served by living with the mother and for the mother to have sole parental responsibility for the children. Further, that the mother required the protection of a lengthy Final FVIO against the father due to his family violence.[137]
[137] Mother’s affidavit filed 18 August 2022, paragraph 106.
In my view, the father has not led evidence about a material or significant change in circumstances that would warrant revision of the existing orders, but in fact has repeated the historical grievances he has with the mother and her standard of care as submitted by the mother.[138] In particular, the father’s focus, as submitted by the mother, on the “long-standing history of conflict and violence between [the mother] and [X] is not a new factor in the maelstrom of the family dynamic”.[139]
[138] Mother’s written submissions filed 9 September 2022, p.5.
[139] Mother’s written submissions filed 9 September 2022, p.6.
It is the mother’s position that in circumstances where the children are already adversely harmed by the destructive relationship between the parents, further layered by X’s diagnosed challenging behaviours and special needs, changes to the orders must be weighed against the detriment of the children being embroiled in incessant litigation.[140] In my view, that detriment is real and not outweighed by an asserted need for variation of the orders.
[140] Mother’s written submissions filed 9 September 2022, p.6.
At the time the final orders were made, the father had the benefit of legal representation and counsel appearing on his behalf. The orders were supported by the ICL, who had been inextricably involved in the matter since January 2020. The father sought from the outset that the children live with him. Having agreed to an order that the children live with the mother, he again agitated for a position whereby they live with him only five months after concluding the acrimonious litigation between the parties. In essence, a continuation of X’s dysregulation is not a new fact or circumstance not known to the father or the Court at the time of the making of the final orders. I accept the submission of the mother that the escalation of any behavioural issues of the children, and specifically X, is more likely to be symptomatic of his special needs (as posited by Dr H in her Family Report dated 15 November 2021, paragraph 163) and the lingering extraordinary tension between the children’s parents. Additionally, that has been compounded by the failure of the father to comply with the final orders, for which he has been rebuked in the enforcement proceedings.[141]
[141] Mother’s written submissions filed 9 September 2022, p.6.
The issue squarely is whether the father has disclosed evidence that reveals a change of such significance that the best interests of the children require a revisiting of earlier orders. I find he has not.
The father’s concern that X’s behaviour is not being adequately addressed, or supervised, by the mother, represents no change in circumstances. The parties have always been doubtful of one another’s parenting capacity. Their inability to co-operate is why sole parental responsibility was allocated to the mother on 22 March 2022.
Similarly, the mother’s grave concerns about what X is being exposed to whilst in the father’s care does not represent any change in circumstances. It is merely repetition of her suspicions about the father’s impaired parenting capacity, which were exposed in the last proceedings. The animosity which exists between the parties is still present and would likely be evident to the children if the parenting proceedings were re-opened, which powerfully militates in favour of the children’s best interests being promoted by a dismissal of the father’s application. Indeed, the parties’ conflict was previously found to have adversely affected the children. Any further proceedings I find will result in unnecessary damage or distress, upset and/or abuse of the children.
I do not consider that there is any evidence which would suggest that the father was at a disadvantage in the proceedings and in any event, if such a circumstance existed, the appropriate course of action would have been to consider an appeal rather than the filing of an Initiating Application only a few months after the proceedings were resolved.
The father cannot demonstrate any material change in circumstances and, if the parties are allowed to resume their litigious struggle, there is a real danger the children will experience more emotional trauma from exposure to their disaffection. The father has not satisfied the criteria imposed by Rice v Asplund to permit his prosecution of these fresh proceedings.
COSTS
Introduction
On 5 September 2022, the mother filed a Further Amended Response to Initiating Application. The mother sought the father pay her costs on an indemnity basis in respect of the costs outstanding arising from and incidental to the Enforcement Application filed 25 July 2022 and responding to the father’s Initiating Application filed 16 August 2022 and amended thereafter.
The father sought no order as to costs in his Amended Initiating Application filed 30 August 2022 or in his Initiating Application filed 16 August 2022.
Legal principles
Section 117(1) of the Act sets out the general rule that each party shall bear their own costs. However, the Court being satisfied that there are circumstances justifying it doing so, may make such order for costs as it considers just in accordance with the Court’s discretion.[142] In considering what (if any) order for costs it should make, the Court shall have regard to the matters in s 117(2A) of the Act as follows:
[142] Family Law Act 1975 (Cth) s 117(2).
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;
(g) such other matters as the court considers relevant.
Although the Court must have regard to all of these matters, and their relevance will depend upon the particular circumstances of each case, it is not required to consider these matters in any particular order, and no matter takes precedence over another. It is also not necessary for there to be more than one relevant consideration for the purposes of deciding that an order is justified.
In Collins and Collins (1985) FLC 91-603 at page 79,877, the Full Court of the Family Court of Australia (Evatt CJ, Pawley & Barblett JJ), as it was then, said:
In deciding whether the circumstances justify an order for costs, there is a broad discretion to be exercised, having regard to the factors set out in subs. (2A) so far as relevant. Those factors…. are not to be read in a restrictive way, however, the discretion remaining is a broad one: Penfold v Penfold (1980) FLC 90-800 at pp 75,053-75,054 (High Court); quoted in Mallet v Mallet (1984) FLC 91-507 at pp 79,123-79, 124 (by Wilson J).
In Penfold v Penfold (1980) 144 CLR 311 at page 315, the High Court (Stephen, Mason, Aickin and Wilson JJ) held that:
It is an accurate description of s. 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s.117(2). As subsec (1) is expressed to be subject to subsec (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently …... we do not agree with the suggestion….... that an order can only be made under s.117(2) in a 'clear case'.
Rule 12.17 of the Rules sets out the method of calculation of costs. It is set out as follows:
(1) The court may order that a party is entitled to costs:
(a) of a specific amount; or
(b)as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c) to be calculated in accordance with the method stated in the order; or
(d)for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
(2)If costs are payable under the Family Law Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party and party basis.
(3) In making an order under subrule (1), the court may consider the following:
(a) the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c) the rates ordinarily payable to lawyers in comparable proceedings;
(d)whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;
(e)the time properly spent on the proceeding, or in complying with pre-action procedures;
(f)whether expenses (paid or payable) are fair, reasonable and proportionate.
The matters in s 117(2A) of the Act, whilst not containing the power to make an order for costs, shall be considered by me to inform the exercise of my discretion in determining a costs order where the normal course would be that costs follow the event.
In the circumstances of the case, not all of the matters set out in s 117(2A) of the Act are relevant. Accordingly, only those relevant matters are discussed hereafter.
Financial circumstances of each of the parties
The father is currently self-employed running his own business. He is also in receipt of government benefits. The father, in his latest Financial Statement filed 25 February 2022, deposed to earning approximately $670 per week, $32,160 per annum.
The mother both studies and engages in work part-time. She works in the allied health industry. She is also in receipt of government benefits. The mother in her latest Financial Statement filed 8 February 2022, deposed to earning approximately $889 per week, $42,672 per annum.
The mother is paying her own legal costs. The mother’s legal costs and disbursements incurred up to and including the hearing on 15 September 2022 were approximately $45,457. The mother still owes approximately $41,604 of this amount to her lawyers. A costs order of $3,092 was reserved in favour of the mother for the appearance on 27 July 2022, and a costs order for counsel (in favour of the mother) of $1,767 was fixed and reserved on 19 August 2022, noting that indemnity costs were being sought.[143]
[143] Mother’s Costs Notice filed 15 September 2022.
The father’s legal costs incurred for the hearing on 15 September 2022 amounted to $5,000. If the matter is finalised, the father’s solicitors estimated further costs in the sum of $1,500.
Legal Aid
Neither party is in receipt of Legal Aid.
The conduct of the parties
The father’s conduct in bringing this proceeding has caused the mother to incur unnecessary legal costs. Additionally, since the making of final consent orders on 22 March 2022, the mother has brought two Enforcement Applications due to the father’s failure to comply with the final orders. Costs order made subsequently in her favour, have not been complied with.
The father has sought extensive parenting orders, seeking to reopen litigation.
The mother has made considerable attempts to communicate and resolve parenting issues with the father, whilst the father has failed to make contact with the mother.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The father’s application has been wholly unsuccessful.
Conclusion as to costs
I am satisfied in the circumstances as described above that an order for costs in the mother’s favour is warranted. The costs sought by the mother are indemnity costs.
The general rule in this Court is that costs are payable on a party and party basis unless the Court decides to exercise its discretion to order costs on other terms, including indemnity costs. The Court “should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be an exceptional one”.[144]
[144] Kohan & Kohan (1993) FLC 92-340.
The circumstances justifying an order for indemnity costs are not closed.[145] The Court in exercising its discretion must be satisfied that the circumstance of the case “warrant the making of an order for the payment of costs other than on a party/party basis”.[146]
[145] Yunghanns & Yunghanns (2000) FLC 93-029.
[146] Yunghanns & Yunghanns (2000) FLC 93-029.
Circumstances which may warrant such an order were summarised by Holden CJ in Munday v Bowman (1997) FLC 92-784 at page 84,660, as identified in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, as follows:
·Where an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts;
·The making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;
·Evidence of particular misconduct causing loss of time to the court and to other parties;
·The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions;
·An imprudent refusal of an offer to compromise.
In the more recent decision of Sfankianakis & Sfankianakis [2019] FamCAFC 54, the Full Court observed at [10] that:
…It is however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs as the Court considers just” permit the Court to fashion an order that is apt to the circumstances. One such well known example is assessment on a trustee basis, which is more generous than party and party costs, but fall short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party cost nor an indemnity costs order. For convenience, in these reasons we shall refer to such orders as a “special costs order”.
I am satisfied that there are circumstances in this case which justify the Court departing from the general rule that each party pay their own costs. I am satisfied a costs order should be made against the father in respect of the hearing on 15 September 2022, for costs arising from and incidental to the Enforcement Application filed 25 July 2022 and the father’s Initiating Application filed 16 August 2022 and amended thereafter. Such costs order should be on a party and party basis, however I am not satisfied that in the factual circumstances of the case and upon a consideration of those relevant matters canvassed above, that an order for indemnity costs should be made by me in the exercise of my discretion. It is appropriate that such costs be agreed within seven days hereof and failing agreement be assessed by a Judicial Registrar.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 7 February 2023
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