Hood & Weaver (No 2)
[2022] FedCFamC2F 728
Federal Circuit and Family Court of Australia
(DIVISION 2)
Hood & Weaver (No 2) [2022] FedCFamC2F 728
File number(s): NCC 1156 of 2020 Judgment of: JUDGE KEARNEY Date of judgment: 8 June 2022 Catchwords: FAMILY LAW – parenting – where final orders made 3 months ago - children aged 11, 7 & 3 – circumstances altered significantly for oldest child only – preliminary dismissal of application to alter orders for younger two children - suspension of final orders and interlocutory orders in place for oldest child only pending result of state court proceedings – best interests of children Legislation: Family Law Act 1975 (Cth) Cases cited: Carriel & Lendrum [2015] FamCAFC 43
Marsden & Winch [2009] FamCAFC 152
Poisat & Poisat [2014] FamCAFC 128
Rice and Asplund [1978] FamCA 84
SPS and PLS [2008] FamCAFC 16
Walter & Walter [2016] FamCAFC 56
Division: Division 2 Family Law Number of paragraphs: 93 Date of hearing: 21 April 2022 Place: Newcastle Solicitor for the Applicant: Ms Gough, Resolve Family Law Solicitor for the Respondent: Ms Meares, Meares Law Counsel for the Independent Children's Lawyer: Ms Reid Solicitor for the Independent Children's Lawyer: Strive Family Law ORDERS
NCC 1156 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WEAVER
Applicant
AND: MS HOOD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE KEARNEY
DATE OF ORDER:
8 JUNE 2022
THE COURT ORDERS THAT:
1.The response to initiating application filed by the respondent, Ms Hood (‘the mother’) is dismissed insofar as it seeks orders pertaining to the children Y (‘Y’) born in 2015 and Z (‘Z’) born in 2018.
UNTIL FURTHER ORDER THE COURT ORDERS THAT:
2.Orders 4, 5, 6 and 9 of the final orders pronounced by the Court on 10 February 2022 (‘the final orders’) are suspended, insofar as they relate to X born in 2011 (‘X’).
3.The mother have sole parental responsibility for X.
4.X shall live with the mother.
5.The father have no time or communication with X.
THE COURT NOTES THAT:
A.The parties intend to informally extend the effect of order 5 (b) of the final orders so that Y and Z spend time with the mother each alternate weekend from Friday at 3.00pm until the commencement of school (or 9.00am) Monday.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Weaver & Hood (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
Introduction
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth)[1] between the Applicant, MR WEAVER [2] (‘the father’) and the Respondent, MS HOOD (‘the mother’).
[1] Unless otherwise specified any reference to legislation shall be a reference to the Family Law Act 1975 (Cth)
[2] Out of respect for each person’s personal preference about how they may wish to be identified in terms of their preferred honorific, persons (other than the parties or children of either party) shall be referred to by their surname only.
There are three children who are the subject of the dispute namely:-
(a)X (‘X’) who is 11 years of age;
(b)Y (‘Y’) who is seven (7) years of age; and
(c)Z (‘Z’) who is three (3) years of age;
collectively referred to as the children.
The children are represented by Ms Walker, the independent children’s lawyer (‘the ICL’)
The issues to be determined by the Court were –
(a)On a preliminary basis, whether the mother’s application to commence parenting proceedings (insofar as they relate to Y and Z) should be dismissed in reliance of the principle espoused in the decision of Rice and Asplund[3]; and
(b)Subject to a determination of the preliminary issue, what parenting orders should be made in relation to the children in circumstances where the parties agreed that the mother’s application (insofar as X was concerned) must proceed because there had been a significant change in circumstances.
[3] [1978] FamCA 84
On 10 February 2022 the Court made final parenting orders after a two-day defended hearing (‘the final orders’). Taking a broad brush approach to her case, the mother contended that there had been significant changes to the parties’ circumstances so as to warrant a re‑consideration of the final orders, the main one being that on the same day as the decision was pronounced, X was taken by the mother to Suburb G Police Station to make allegations of assault perpetrated by the father against him. Subsequently, the father has been charged with an offence, an interim family violence order (‘the ADVO’) has issued and the criminal and family violence proceedings are listed before the Suburb G Local Court in September 2022.
In her Notice of child abuse, family violence or risk, the mother submits that because of those allegations (in summary) the father poses a risk of harm to the children because of –
(a)The father’s inability to regulate his emotions when angry causing him to strike/punch/kick and throw X;
(b)The father takes prescribed medication for anger which he has given to X as a way to stabilise the child’s tantrums by causing the child to go to sleep;
(c)The number of persons within the father’s household;
(d)The father’s care of Z has caused Z to be returned to her mother with a red genital area;
(e)The mother’s observation of the children’s inappropriate sexual behaviours after being cared for by the father;
(f)The mother’s observation of regression in Y and Z’s behaviours after being cared for by the father.
For the reasons which follow, I will –
·Suspend the existing final orders as they relate to X and make interlocutory orders by consent as submitted by the parties;
·dismiss the mother’s application insofar as it relates to Y and Z;
·make a notation to record the parties’ agreement for an informal extension of time to be spent by Y and Z with the mother whilst the final orders about X remain suspended;
·make procedural orders to support the case management of these proceedings in light of the impending Local Court hearing in September 2022.
The evidence
The father read and/or relied upon the following documents:-
(a)Initiating application filed 21 February 2022;
(b)Notice of child abuse, family violence or risk filed 21 February 2022;
(c)Affidavit of Mr Weaver filed 21 February 2022[4];
(d)The father’s outline of case document filed 20 April 2022 – marked exhibit ‘F1’
(e)Various exhibits marked from ‘F2’ to ‘F10’ and which (as may be relevant) will be referred to in more detail within this judgment.
[4] For convenience sake, references to the contents of the affidavit of Mr Weaver shall be prefaced by “W” with a paragraph number enclosed in square brackets and an annexure identified alphabetically.
The mother read and/or relied upon the following documents:-
(a)Response to initiation application filed 11 April 2022;
(b)Notice of child abuse, family violence and risk filed 11 April 2022;
(c)Affidavit of Ms Hood filed 11 April 2022[5];
(d)Affidavit of Ms SS filed 7 April 2022;
(e)The mother’s outline of case document filed 19 April 2022 – marked exhibit ‘M1’
(f)Various exhibits marked from ‘M2’ to ‘M8’ and which (as may be relevant) will be referred to in more detail within this judgment.
[5] For convenience sake, references to the contents of the affidavit of Ms Hood shall be prefaced by “H” with a paragraph number enclosed in square brackets and an annexure identified alphabetically.
The ICL read and/or relied upon the following documents:-
(a)The Independent Children’s Lawyer’s outline of case document filed 20 April 2022 – marked exhibit ‘ICL1’;
(b)Family report of Ms DD dated 29 May 2021 – marked exhibit ‘A’.
Given the nature of the father’s application, I was also taken to various excerpts from the judgment pronounced on 10 February 2022 (‘the final judgment’).[6]
[6] For convenience sake, references to the final judgment shall be prefaced by “Reasons” with a paragraph number enclosed in square brackets.
There were various objections made to the written evidence and where applicable, I have not read the material relating to objections that were upheld.
In the context of an interlocutory hearing, ordinarily my ability to make findings of facts is somewhat constrained because the evidence is unable to be tested. In preliminary applications having the nature that this matter has, Full Court decisions such as SPS and PLS [2008] FamCAFC 16 and Walter & Walter [2016] FamCAFC 56 empower me to take a slightly different approach about the treatment of evidence insofar as certain issues are concerned (which I will explore further). With all of that in mind, statements of facts set out below shall constitute findings of fact unless otherwise expressed.
In order to consider the various applications, it is necessary for me to set out a short chronology of the parties’ circumstances which unless otherwise specified, is drawn from the final judgment. In doing so, I have (to a certain degree) not included evidence in support of the parties’ competing applications about the suspension of the final orders insofar as they relate to X and/or what interlocutory parenting orders to make about him. This is because the parties reached agreement on an interlocutory basis about that aspect of the dispute.
CHRONOLOGY
In 1987, the mother was born and is now aged 34 years of age.
In 1991, the father was born and is now 31 years of age.
In 2011, X was born out of a relationship between the mother and Mr B.
In 2015, Y was born.
In 2018, Z was born.
In June/July 2018, the parties separated.
On 14 April 2020, the mother commenced proceedings in the Court seeking the recovery of Y and Z from the father.
Shortly thereafter, the parties participated in a child dispute conference and interlocutory parenting orders were made.
In May 2020, Y was taken by the mother to the Suburb G Police Station where he made allegations of his father slapping him in the head and punching him in the back. As recorded at paragraph 19 of the family report, the mother says that the father then took Y back to the police to recant his statement.
On 12 November 2020, as part of a suite of orders, the Court determined that Mr B need not be joined to the proceedings, which by this time had been enlarged to include X.
On 29 May 2021, the family report was produced.
On 9 September 2021, the father took X to the Suburb G Police Station so that X could make a statement to the police. This action followed the mother’s request for the father to intervene in managing X’s adverse behaviours earlier in the evening of 8 September 2021.
The mother says that in 2021, X was having a tantrum and the father gave him ‘Daddy’s anger tablet’ which caused him to go to sleep.[7] The source of her evidence is not specified and despite the timeframe, other than one comment at paragraph 120 of the family report, the issue was not the subject of any particular comment either within the family report or the final judgment.
[7] H [79]
On 20 January 2022, the mother says she received a text message from Mr EE.[8] There is no affidavit from Mr EE to support the contention the mother makes that the father paid Mr EE off.
[8] H [81]
The trial proceeded over two days commencing 2 February 2022.
On 10 February 2022 the final orders were pronounced which in summary provided for –
(a)The father to have sole parental responsibility for the children;
(b)The children to live with the father and spend time with the mother as follows –
(i)Each Wednesday for up to four hours after school;
(ii)Each alternate weekend from after-school Friday to 6.00pm Sunday;
(c)The children to spend one-half of each school holiday with each party;
(d)The children to spend time with each party on special occasions;
(e)The parties to be restrained by way of injunction from doing certain things including (as is relevant to these proceedings) them not using physical discipline upon the children and not –
…Recording, photographing and/or presenting the children to police, doctors and hospitals unless the children are unwell and this restraint extends to permitting any other person doing so…
(f)The provision of information to both parties about long-term (and day-to-day) issues about the welfare of the children despite the father having sole parental responsibility;
(g)The practical implementation of the orders about matters such as how the parties are to communicate, facilitate changeovers and otherwise improve their parenting relationships with each other and their children.
Within the final judgment I made the following findings/observations –
(a)The mother did not seek a restraint or any orders about protecting the children form family violence but the father and the ICL did, and given my findings, an order would be made restraining the parties from exposing the children to family violence (see paragraphs 103 to 106);
(b)There was an allegation that the father had punched Y, which was denied by the father (see paragraph 108);
(c)X made disclosures of having been smacked by both his parents and that the father also smacked Y and Z. The mother accepted this had occurred whereas the father did not. I found that both parties had engaged in physical discipline but that the children had not been abused or were at risk of being abused in a manner that would not otherwise fall within the category of physical discipline. Consequently, an injunction was ordered to protect the children from physical discipline (see paragraphs 109 to 119);
(d)During the trial, the make-up of the persons in the father’s household, the father’s working hours and the relationships the children have with some members of the household were explored and found expression within the final judgment (see for example, paragraphs 132, 145 – 147, 149 – 150, 169 – 170 & 211);
(e)The evidence of family violence and the disputation between the parties and those issues were explored with findings made (see for example, paragraphs 96 – 105 and 173 (b));
(f)In the context of a challenge to the child expert making findings or opining on mental health conditions or diagnoses, I found inadmissible any evidence opining on the mother’s observed behaviours or reported actions (see paragraphs 12 – 13). Consequently, the mother’s mental health was not a feature of the trial and other than as set out above, no findings were made in that regard;
(g)The mother made various allegations about the father’s care of Y and Z including concerns about their behaviours regressing, Z being at risk of inappropriate sexual behaviour and Y’s sore and red penis. The allegations were explored and findings made (see for example paragraphs 119 – 124);
(h)The veracity of Mr EE’s evidence was explored at trial and discounted, particularly because he did not appear as a witness for either party (see paragraph 99 (j)).
Later that same day, after being informed of the final orders the mother says that X spontaneously and unilaterally rang the NSW Police whilst at the McDonalds Restaurant. She says that after he hung up the phone, X disclosed that –
…”Dad has been hurting me a lot the last three weekends I went there he’s even hitting me”…”Mr Weaver pulled my hair and slapped me across the face.”[9]
[9] H [17]
In her affidavit at paragraph 49, the maternal great-grandmother Ms SS (‘Ms SS’) says that whilst at the McDonalds Restaurant, X made another disclosure to her of being pulled out his bed and punched in the stomach.
Ms SS also says at paragraph 48 of her affidavit that she called DCJ who advised her that the mother should retain X.
Later that same day, whilst on the way to the police station, the mother says that X reported that the father had called Y a ‘smart ass’ and had pushed Y to the ground and held his (Y’s) hands behind his back ‘like a police man’.[10] X was subsequently interviewed by the police and a statement prepared. A DCJ Helpline assessment dated 16 February 2022[11] includes information that –
(a)X expressing that the father consistently physically abuses the children;
(b)The Police holding serious concerns for the children’s safety;
(c)The matter was ‘screened in’ for various reasons with a decision to liaise with the police about the children’s whereabouts and safety;
(d)Y being subjected to historical allegations of excessive discipline and dangerous behaviour before he commenced school in 2021 (which were reported to the police at the time);
(e)X making disclosures about himself being a victim.
[10] H [19]
[11] Exhibit ‘M8’
The father says that on 11 February 2022 the mother took X to a doctor[12] and the mother gives no evidence about whether this occurred or not. In accordance with the final orders, the mother permitted X to live with the father.[13] The father gives evidence about certain statements made by X which are not relevant for the purposes of the current issues before the Court.[14]
[12] W [9] & exhibit ‘F6’
[13] H [27]
[14] W [18]
On 15 February 2022, a provisional ADVO was issued by the NSW Police as the applicant nominating the father as the defendant and X as the person in need of protection with various restraints included within the document including the father have no contact with X and not approach him or his school or come within 100 metres of the mother’s home.[15] The father was arrested by the police and charged with common assault (DV) for allegedly assaulting X between 3.00pm 16 January 2022 and 3.00pm 23 January 2022.[16]
[15] H [25] & [26] & annex “A” and W [21] & annex “D”
[16] W [21] & annex “D”, exhibit ‘F4’
On 15 February 2022, DCJ ruled out an allegation of there being suspicious indicators of sexual abuse over concerns that Z says “stop it, stop it” and is upset at having her nappy changed or having no pants on when she gets off the toilet.[17]
[17] Exhibit ‘F8’
On 16 February 2022, the children were handed over to the mother in accordance with the final orders.[18] By this time, the mother had become aware that the father had been charged with one count of common assault (with X as the victim) and so she withheld all three children.[19]
[18] W [22]
[19] H [27], W [9] & [23]
On 17 February 2022, the father attended Suburb G Local Court and entered a ‘not guilty’ plea to the criminal charge. He also advised that he would be contesting the family violence order application. As a result, both matters were adjourned for hearing on 16 September 2022.[20] That same date, the father was served with an amended provisional ADVO.[21]
[20] W [24]
[21] W [25]
On 17 February 2022, DCJ recorded[22] allegations including allegations made by X against the father and records of incidents involving Y and Z and that Z is ‘hyper vigilant’ and otherwise denies that X had access to or exposed Y to pornography. A lot of the specific incidents referred to within the document were explored at trial and findings made to which I have referred to previously.
[22] Exhibit ‘M8’
On 21 February 2022, the father commenced parenting proceedings for the recovery of the children from the mother.
On 21 February 2022, the Suburb G Local Court of NSW granted the ADVO which was largely identical to the amended provisional ADVO, save that the order omitted the previous restraint prohibiting the father from attending places including Suburb G Primary School and X’s place of childcare and did not suspend the final orders pursuant to s 68R.[23]
[23] W [26]
On 10 March 2022, the mother filed a Notice of Appeal in relation to all of the final orders.
At paragraphs 51 to 53 of her affidavit, the mother says that on 2 April 2022, whilst taking X to the school office, X alerted her to the fact that he could see the father and Y in an interview room nearby. She says that the father called her on her phone and yelled at her, blaming her for him inadvertently breaching the ADVO. The mother says she immediately left with X and a staff member from the school called her to query whether she was supposed to permit Y to go home with the father. Upon reflection the mother speculated that Y would have been scared. The father did not have the opportunity to formally reply by way of affidavit and so I am unable to make any adverse findings save to say that it would appear that at least X was aware of the parental conflict when he chose to inform the mother of the father’s presence.
On 9 April 2022, the mother says that X sent her a text message that Y had been lying on top of Z and kissing her on the lips and trying to touch ‘her private parts’. The mother says that Ms SS and X intervened. The mother says that she was concerned that the children were/are displaying inappropriate sexualised behaviour. The mother’s concerns about the children exhibiting sexualised behaviour were explored during cross-examination at trial and also reported within the family report (including at paragraphs 41 to 44 and 120 to 121). I have explored the relevant findings and orders above. Ms SS gives no evidence about this incident.
On an unknown date, DCJ requested the Court provide a copy of the final orders citing holding further concerns about Y and Z which included a reference to ‘suspicious indicators … consistent with sexual abuse that does require further investigation’.[24] The document is not particularly helpful because no date for the request is included, no source is attributed for the expressed concern and no outcome of any further investigation is included.
[24] Exhibit ‘M2’
At paragraphs 74 and 75 of the mother’s affidavit, she gave evidence about X returning from a stay with his father on 22 February 2022 and telling the mother that the father had accused him of “watching pornographic movies”. The mother says two days later, the police attended her home on the premise of investigating a report about similar allegations. The mother says the police told her that they thought she was being “set up”. The exhibited material suggests that the paternal grandmother may have been the informant and that a child other than X made the disclosure.[25]
[25] Exhibit ‘M6’
At paragraph 32 of her affidavit, the mother says she has reported her concerns about the father physically abusing the children throughout the proceedings. The evidence was tested at trial and I have explored the relevant findings and orders above.
At paragraphs 36, 50 and 70 of her affidavit, the mother repeated her concerns and complaints about the children’s supervision when in the father’s home including her dissatisfaction that the father has a pool but has made no attempts to teach them how to swim. The evidence available to the Court at the time of the final hearing was tested and I have explored the relevant findings and orders above.
At paragraphs 38 to 40 of her affidavit, the mother repeats her concerns about the father’s perpetration of family violence and made specific reference to an incident at the neo-natal clinic at the time of Z’s birth. The evidence available to the Court at the time of the final hearing was tested and I have explored the relevant findings and orders above.
At paragraph 41 of her affidavit, the mother gives evidence about DCJ visiting the homes of herself and the father. The issue of the children being safe in the households of the parties was not a feature of the final judgment.
At paragraph 42 of her affidavit and within some of her exhibits, the mother gave evidence of her engagement with mental health professionals. The issue was not significant for the reasons explained in the earlier exploration of the final judgment and from the documents, her mental health symptoms appear to be of a longstanding nature meaning that it was open to her to present evidence about her mental health and/or mental health symptoms at trial.
At paragraphs 48 to 49 of her affidavit, the mother expressed her concerns about Z’s behaviour since she has lived with the father and her observation of Z’s genital area being red. These behaviours and observations were the subject of cross-examination and I have explored the relevant findings and orders above.
At paragraphs 63 to 73 of her affidavit, the mother gave some evidence about the living circumstances of the children before and after the final orders. Some of her evidence, particularly about X’s behaviour, his progress at school and the role that the father’s partner plays in the care of the children were explored at trial with the relevant findings referred to above.
At paragraph 80 of her affidavit, the mother complained that the children are ‘constantly’ presenting to her with nits and head lice.
In his affidavit, the father says that Y and X both attend Suburb G Public School and that he drops-off and collects Y. He says that there is a 15-minute gap between when Y’s school day ends and that of X’s.[26]
[26] W [27]
The father denied the allegations made against him by the mother and remained concerned about the mother’s capacity to meet the children’s intellectual and psychological needs.[27]
[27] W [29] & [30]
On 21 April 2022, the competing interlocutory applications were heard by me.
On 16 September 2022, the criminal and family violence order proceedings are listed for hearing before the Suburb G Local Court.
The PARTIEs’ proposals
At the commencement of the hearing, the parties informed the Court that certain disputes had been resolved such that the only issues to be determined by the Court were whether the mother’s parenting application (about Y and Z) should be dismissed pursuant to the decision in Rice and Asplund, and if not, then what interlocutory parenting orders should be made. The Court was told that the parties had agreed that at least in the short term, to extend the weekend time that Y and Z spend with the mother so that all three children were in her care each alternate weekend from Friday afternoon to Monday morning.
The outstanding interlocutory relief sought by the mother was set out at Part E of her outline of case document, marked exhibit ‘M1’ was essentially that:-
(a)The father’s Rice and Asplund application be dismissed;
(b)Orders 2 to 11 of the final orders be suspended;
(c)The mother should exercise sole parental responsibility for the children;
(d)The children should live with the mother;
(e)X spend no time and have no communication with the father;
(f)Y and Z should spend professionally supervised time with the father (at his cost) for one (1) hour each alternate Saturday; and
(g)The father should enrol in and complete an anger management program conducted by TT Centre.
The outstanding interlocutory relief sought by the father was set out at Part E of his outline of case document, marked exhibit ‘F1’ was essentially that:-
(a)The mother’s parenting application (as it related to Y and Z) should be dismissed; and
(b)Pursuant to s 68Q, to the extent that any orders were inconsistent with the interim ADVO, then the parenting orders would prevail.
The ICL’s position was supportive of the father’s interlocutory application for the dismissal of the mother’s parenting application insofar as it related to Y and Z.
The applicable law
The father contended that the mother’s parenting application (as it related to Y and Z) should be dismissed based on the Full Court decision in Rice and Asplund, which reflects a legal principle upon which the Court has relied upon when considering applications to re-open a parenting case which has already been determined on a final basis.
In these proceedings, the parties by consent invite me to make a “parenting order” (s 64B) which I can, provided I think it is “proper” (s 65D) to do so in light of the objects of the Family Law Act 1975 (Cth) and the underpinning principles of those objects (s 60B). Leaving to one side, the parties’ consent position (regarding X and to a lesser degree Y and Z), the mother also seeks the making of parenting orders in the event that the father’s application fails. Whether the father’s application for me to dismiss the mother’s application is a parenting order remains the subject of some controversy: see Poisat & Poisat [2014] FamCAFC 128 at [54] and Carriel & Lendrum [2015] FamCAFC 43 at [61].
Putting to one side the controversy about whether the summary dismissal of a parenting application is a parenting order - any orders I make about a child must be orders determined by treating their best interests as the paramount consideration (s 60CA) and ss 60CC (2) and (3) set out the matters to which I must have regard to in doing so. This consideration of the child’s best interests is also mandated within s 65DAA, to which I shall return.
As part of Division 12A, section 69Z specifies and mandates the principles the court must adhere to when conducting child-related proceedings. Whilst all of the principles apply, in this matter, two of the principles strike a chord with me and for that reason are transcribed below –
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Before reflecting further on the circumstances of this case, it is important to remind myself of what Chief Justice Evatt said in Rice and Asplund:-
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 material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation... 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.
The Full Court in Marsden & Winch [2009] FamCAFC 152 said -
58.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
Warnick J in SPS and PLS observed at [81] that when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage it is done so because, assuming the evidence of the applicant is accepted, there is insufficient change in circumstance to justify embarking on a hearing. His Honour went further to say that –
Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
In Carriel & Lendrum [2015] FamCAFC 43, the Full Court said at [57]:
57.In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
The Full Court in Walter & Walter at paragraph [51] confirmed SPS and PLS insofar as where the question of whether a sufficient change in circumstances has occurred is determined as a preliminary matter to the hearing of the initiating application, it is accepted that the applicant’s evidence should be taken at its highest.
DISCUSSION
Taking guidance from Carriel & Lendrum I will firstly consider the existing parenting order which must have (at the time) reflected the best interests of the children and reflected the finalisation of the parties’ dispute, the continuation of which would have been inherently contrary to the children’s best interests.
The mother’s attitude towards the final orders is essentially that they are not in the best interests of the children and for this reason she has filed a Notice of Appeal. Clearly that is an issue for another forum.
The final orders were made in February this year after a contested hearing. I have set out above, the orders and findings of the Court that I considered relevant to the mother’s contentions before me at the most recent hearing.
Otherwise, the children’s living circumstances at the time of the trial were that X lived with the mother, Y and Z lived with the father and the children spent alternate weekends with each other in the parties’ respective households. There was no evidence that the children’s physical living and care arrangements have changed. Both boys continue to attend the Suburb G Public School.
Returning to Carriel & Lendrum, I need to consider whether there has been a sufficient change in circumstances since the final orders were made to warrant the continuation of this litigation which inherently can adversely impact the children’s best interests.
The final orders were made less than four (4) months ago.
There is agreement that there has been a significant change in X’s circumstances because of the current family violence and criminal proceedings involving allegations against the father. Noting the consensus position and the agreed facts, I am satisfied that the mother’s parenting application about X should continue to be litigated.
The father presses the Court to keep the final orders in place insofar as Y and Z are concerned, the mother asks for a dramatic reversal of the final orders.
For the reasons that follow and in relation to Y and Z, I am satisfied that firstly there is not a likelihood that the final orders will be varied in a significant way because there have been significant changes in the circumstances of the family and secondly, that the potential detriment to the children caused by the litigation itself outweighs the need to embark upon it.
There is no evidence that Y and Z’s age and developmental stages have changed since the final orders were made. Their living arrangements remain as they were when the trial was conducted, that is they live in a household separate to X but maintain regular contact him with him (albeit the time is now reduced by one weekend in a fortnightly cycle and a reduction in school holiday time).
Accepting the mother’s evidence at its highest, I am not satisfied there have been significant changes to the circumstances of Y and Z because:-
(a)The existing status quo has been a constant in the children’s lives since April 2020.[28]
(b)The mother’s concerns about the father being physically abusive towards the children, using excessive discipline upon the children, the father’s supervision of the children, the make-up of the father’s household, the children’s exposure to family violence, the parental conflict between the parties (including taking various children to the police to make statements against the other party) and the cause of the adverse behaviours/physical signs the mother saw in the children (arising from neglect, poor hygiene, sexual abuse, inappropriate sexual behaviour and/or exposure to any of these factors) were all considered at trial.[29]
(c)At trial, no finding was made about the mother’s mental health[30] and so the current state of the mother’s mental health was and is irrelevant to the final judgment which found that Y and Z should primarily live with the father. In any event, her exhibited material suggests her symptoms have been of a longstanding nature and so could have been pressed at the trial. Along the same lines (in terms of irrelevance), the same can be said about the mother’s evidence that DCJ have lately visited each party’s household to assess safety and (one could infer) the lack of any tendered material would discount any safety concerns the mother has about the father’s household including Y and Z’s access to a swimming pool.
(d)At trial, the Court expressly discounted the evidence of Mr EE for many reasons including that no affidavit from Mr EE was relied upon by either party[31]. The evidence now provided by the mother was available at the trial. Nothing has changed in terms of the weight the Court should give to this evidence.
(e)The parental conflict (and their attitude towards it) has continued unabated with allegations that each party has made (to use the mother’s language) vexatious complaints to the authorities either with or without the children being interviewed by third parties.
(f)In relation to neglect or capacity considerations generally, the mother’s evidence had a similar flavour to that described within the family report and discussed within the final judgment. The mother clearly maintains her view that the father’s capacity to manage or supervise the children is deficient including because she says he is not ‘present’ at times when the children’s needs demand him being there. Taking her evidence at its highest I am not satisfied that her concerns (including about a swimming pool or the children having nits) permits a finding that a significant change has occurred.
(g)DCJ specifically identified and ruled out the behaviours that led to a report being made about Z displaying behaviour indicative of sexual abuse[32] and otherwise, the mother’s evidence is consistent with what the court considered at the trial.
(h)The events of 9 April 2022 are not corroborated by Ms SS. Given the mother’s contentions of what allegedly occurred, it is incongruent that Ms SS did not do so. As identified earlier, complaints of sexualised behaviour were heard and considered at the trial. The state of the mother’s evidence does not enable me to make a finding that a significant change of circumstances has occurred.
[28] Reasons at [51]
[29] See for example Reasons at 96 – 106, 108 – 124, 132, 145 – 147, 19 – 140, 169 – 170, 173 (b) & 211
[30] See for example Reasons at 12 - 13
[31] Reasons at 99 (i)
[32] Exhibit ‘F8’
Taking a broad brush approach, the mother seeks a complete reversal of where the children live and who exercises parental responsibility for them. It is a significant variation to the final orders.
Insofar as weighing up the likelihood of the mother’s relief being granted, the nature of those changes needs to be weighed up against the potential detriment to Y and Z (see Marsden & Winch). I accept the submissions of the father and the ICL that the potential detriment to the children’s best interests outweighs the relief being sought.
In summary this is because –
(a)The mother seeks that (relevantly) Y and Z live with her and she exercise sole parental responsibility for them. Y and Z have lived with the father for over two years and despite extensive testing of the mother’s numerous and detailed allegations, the Court determined that the children should remain living with the father. Y is six (6) and Z is almost four (4) and the family report opined that the children will more likely experience consistency and structure in the father’s home which is most important for Z over the next three to five years (see paragraph 174). The father has been making decisions about Y and Z for a considerable period of time and in light of the poor co-parenting relationship, the Court determined that whomever the children live with should be allocated this responsibility.
(b)Y and Z have already been interviewed by the family report writer once and met with the ICL. In the final judgment I expressed significant concern about both parties’ propensity to take the children inappropriately to the police to make adverse statements against the other parent.
(c)Despite the final orders and the final judgment, the parties (or other family members) have continued to observe and report either the children’s verbal expressions or physical presentation to support their adverse allegations against the other. Unless this chapter of the litigation is closed, Y and Z will remain at risk of a continuation of this type of behaviour, with the risk of them becoming aware of or being exposed to further parental conflict.[33]
(d)I don’t wish to expose the children to being re-interviewed by an expert witness or the ICL. I don’t wish to unnecessarily invite a perpetuation of the parties’ past behaviours in unnecessarily taking Y and/or Z to the authorities to gather adverse evidence about the other party. In my view, closing the door on future litigation will either completely or be less likely to lead to these events occurring in the future.
[33] See for example the disclosures to DCJ about past allegations involving Y and Z and recent allegations of X exposing Y to inappropriate material whilst in the care of the mother
The twin principles transcribed earlier mandate that the Court conduct these proceedings in a way that addresses the children’s needs and promotes cooperative and focused parenting. In my view, the dismissal of the mother’s parenting application insofar as it relates to Y and Z will satisfy both those principles because their lived experience will be unchanged.
At the outset the father sought that an order be made pursuant to s68Q but during the course of submissions, he abandoned that approach which was sensible given that there was no parenting order affording him time that would otherwise be inconsistent with the ADVO.
Given the agreed suspension of the final orders as they pertain to X, I am satisfied that it is in his best interest to formalise his living arrangements by way of interlocutory order (which was also the agreed position of the parties). This is because it will remove the potential for his exposure to ongoing parental conflict and ensure his circumstances do not change without further Court intervention.
I have decided to record as a notation, the parties’ agreement about Y and Z having an extra night with the mother. In summary and in no specific order, my reasons for doing so are set out below –
(a)I have dismissed the mother’s parenting application regarding Y and Z; and
(b)The final orders permit the parties to agree in writing to time being spent between the mother and the children outside of orders 5 (a) and (b);
(c)The informal agreement between the parties will be recorded in writing by me as part of this decision.
CONCLUSION
I am persuaded by the arguments of the father and the ICL to dismiss the mother’s parenting application about Y and Z. In summary this is because:-
(a)There have not been significant changes to the family’s circumstances since the final orders were made due to –
·The evidence consisting of a re-hash of past allegations previously considered at trial or available to be relied upon at trial (including physical abuse, neglect, sexual concerns);
·The children’s current living and care circumstances were in place at the time of the trial and are unchanged;
·The most recent allegation is not corroborated by Ms SS, the alleged eyewitness;
·The balance of the allegations are not significant, such as about the swimming pool or the alleged nit infestation.
(b)The potential detriment to Y and Z caused by the litigation outweigh the likelihood that the final orders will be varied as sought by the mother because it will expose the children to more parental conflict (disputation) because –
·They will be re-interviewed by an expert witness;
·They will have to meet with the ICL; and
·There is a real risk of their expressions or physical behaviours/presentation being used to support them being unnecessarily taken to authorities for the purpose of gathering evidence against the other party in the proceedings.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of the children.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 8 June 2022
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