JBL and BAB
[2006] FMCAfam 618
•14 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JBL & BAB | [2006] FMCAfam 618 |
| FAMILY LAW – Parenting – father seeks to change final parenting orders made September 2005 – preliminary threshold issue – consideration of best interests of children – summary dismissal. |
| Family Law Act 1975 |
| Bain Pacific Associations LLC & Ors & Kelly & Ors (2006) FLC 93-270 Bolitho & Cohen [2005] FamCA 458 EJK & TSL (No.4)[2006] FamCA 1022 Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others [1964] 112 CLR 125 Houston v Sedorkin (1979) FLC 90-699 King & Finneran (2001) FLC 93-079 Lindon v Commonwealth (No 2)(1996) 136 ALR 251 Middleton and Rhodes [2005] FamCA 1200 R & BH [2006] FamCA 919 Rice & Asplund (1979) FLC 90-215 |
| Applicant: | JBL |
| Respondent: | BAB |
| File Number: | SYM 3840 of 2006 |
| Judgment of: | Sexton FM |
| Hearing date: | 8 November 2006 |
| Date of Last Submission: | 8 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondent: | BDA Legal |
| Solicitors for the Independent Children’s Lawyer: | Marks Griffiths Bova |
THE COURT ORDERS:
The father’s application filed 1 May 2006 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 3840 of 2006
| JBL |
Applicant
And
| BAB |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns two children: Mark, 12 and Melanie, 10.
The father is 40, the mother 36. The parties commenced living together in 1990/1 and finally separated in June 2003 when the children and the mother moved from the former matrimonial home. The father filed an application on 1 May 2006 seeking a substantial change in the parenting orders made by consent in the Family Court on 27 September 2005. Both parties were represented in those Family Court proceedings and Ms Mordaunt appeared as the Independent Child Lawyer (then known as the Child Representative). The current orders provide for the children to live with the mother and spend time with the father each alternate weekend and during school holidays.
The father seeks orders on an interim basis that the children live with him, spend one weekend a fortnight with the mother and move to a school in his local area. On a final basis, he seeks orders that the children live with him, move to schools in his local area, that Mark spend no time with the mother for at least the next 6 months unless he wants to and on condition the mother is supervised and the mother undertakes an Anger Management Course. He seeks an order that Melanie spend time with the mother every second weekend and communicate with her at any time. The father seeks an order that the children each have a mobile phone and unrestricted use of the phones. He seeks a further order:
That [the mother and various members of the mother’s family] not touch, hit, grab, hold, push, restrain, degrade or denigrate the children at any time.
The father represented himself in these proceedings. He relied on his own affidavit sworn 1 May 2006, an affidavit of his partner
Ms S Miller sworn 1 May 2006 and an affidavit of his mother Ms H Barnes sworn 28 April 2006. If an objection had been raised, much of the evidence would be inadmissible.
The father tells the Court the facts he relies on are:
a)On 6 April 2006 the mother assaulted Mark;
b)On 8 April 2006 the maternal grandmother assaulted Melanie;
c)Mark has been suspended from school;
d)The mother has told the children it is illegal for them to have mobile phones and is not facilitating telephone communication; and
e)The mother is using drugs (although the father adduces no evidence in relation to this alleged fact).
The father says he is unhappy with the lack of investigation of his allegations of the mother’s “bashing” of the children by the Department of Community Services. He is equally unhappy with the service he has received from police. He asserts from the Bar Table, again adducing no evidence, that the mother’s brother has an association with north Sydney police, which is why they have taken no action. He says he has rung “every single Agency” to no avail.
The mother and the Independent Children’s Lawyer ask that the father’s application be summarily dismissed. Both submit that the father has disclosed no change in circumstances since Final Orders were made in late September 2005.
The mother’s solicitor submits the father’s allegations are “more of the same” and were all examined prior to the hearing of September 2005. Ms Mordaunt, the Independent Children’s Lawyer, relies on the two reports of Dr Rikard-Bell dated 19 April 2005 and 4 July 2005[1] and on the police reports of 6, 7 and 8 April 2006[2] and submits the allegations made by the father are of the same kind made by the father before the final hearing last year, examined carefully by Dr Rikard-Bell. Given the long history of litigation between the parties, Ms Mordaunt submits that further litigation would lead to more instability for the children, an undermining of the mother’s care and would not be in the children’s best interests.
[1] Exhibit 4.
[2] Exhibits 1, 2 and 3.
Ms Mordaunt provided a detailed chronology of the litigation between the parties in her Case Outline. On 10 July 2003 the father removed the children from the mother’s care which caused the mother to file an application for interim and final parenting orders, seeking the return of the children and a residence order. There has been a long history of litigation since then. Ms Mordaunt notes that the father’s Application to vary the Orders was filed after the mother filed an Application for a Recovery Order in April 2006 and the Court ordered the father to return the children.
The following chronology, set out in the Case Outline of the Independent Child Lawyer, is not in dispute:
a)On 29 July 2003 the police applied for an apprehended violence order on behalf of the mother and the father was charged with assault. An interim order was made.
b)On 30 July 2003 the parties entered into Interim Consent Orders providing for the children to live with the mother and to spend 5 nights a fortnight with the father.
c)On 29 October 2003 the father was convicted of common assault.
d)On 10 November 2003 the parties entered into further Interim Orders providing for the children to spend some Christmas holiday time with the father as well as the five nights a fortnight. Orders were made to restrain the father from stalking the mother and from assaulting, molesting, harassing, threatening or otherwise interfering with the mother. An order was made to restrain the father from contacting the mother except to facilitate the parenting orders.
e)On 27 November 2003 the apprehended violence order complaint was withdrawn by consent because of the restraining orders made by the Family Court in similar terms.
f)On 19 December 2003 the children left MPS as the mother was moving to north Sydney.
g)On 28 January 2004 the mother, having moved to north Sydney, enrolled the children in CHPS and after-school care.
h)On 6 February 2004 the father enrolled the children in MPS and three days later removed the children from CHPS. The mother, accompanied by police, collected the children from the father.
i)On 9 February 2004 the father applied for an order that the children continue schooling at MPS.
j)On 11 February 2004 the mother applied for and was granted an interim apprehended violence order against the father.
k)On 17 February 2004, the parenting orders were varied by a Senior Registrar of the Family Court so that the children spent time with the father 5 consecutive nights each fortnight and half school holidays and the mother was permitted to enrol them at CHPS. An Independent Child Lawyer (then a Child Representative) was appointed.
l)On 3 November 2004 the mother was asked to withdraw Mark from after school care due to his behaviour.
m)On 17 December 2004 the mother applied for residence of the children and an order restraining the father from removing the children from school and from her care.
n)On 22 December 2004 a Senior Registrar of the Family Court ordered the appointment of an expert for final hearing and noted the father’s undertaking that he would ensure the paternal grandmother did not attend the children’s school on any day the children were not in his residential care.
o)On 7 January 2005 the father made a child at risk report and police attended at the mother’s residence.
p)
On 4 March 2005 the father said Melanie said the mother has assaulted Mark. Father subsequently took Mark to a
doctor and obtained a medical report and obtained an x-ray and then attended a north Sydney police station where Mark made a statement.
q)On 11 March 2005 the police applied for an Interim Telephone Apprehended Violence Order on behalf of Mark against the mother.
r)On 12 March 2005 the mother alleged the father has threatened her and police obtained Interim Telephone Apprehended Violence Order for the mother’s protection.
s)On 16 March 2005 the father filed an Application and Notice of Abuse based on allegations of abuse by mother of Mark.
t)On 17 March 2005 the father’s application was dismissed before a Senior Registrar of the Family Court who, while ordering further restraints on each party’s behaviour, ordered that the existing parenting orders stand.
u)On 19 April 2005 the expert report of Dr Rikard-Bell was released.
v)On 6 May 2005 the father filed an application to vacate the hearing date and for a further expert report.
w)On 11 May 2005 the father’s application for further expert report was dismissed by her Honour Justice Moore, with costs.
x)On 12 May 2005 common assault charges were withdrawn against the mother.
y)On 17 May 2005, the father renewed his application for the adjournment and undertook to file a Notice of Appeal from the decision of her Honour Justice Moore. Her Honour Justice Boland granted the adjournment on the basis the father pay the costs of the mother and the Child Representative thrown away and matter proceeded as an interim hearing.
z)On 18 May 2005 her Honour Justice Boland suspended the orders providing for the children’s contact with the father and ordered the mother’s residence to be conditional on her providing regular drug screen results to the Child Representative and arranging counselling for the children
aa)On 18 May 2005 the father filed a Notice of Appeal in respect of the decision of her Honour Justice Moore of 11 May 2005.
bb)On 24 June 2005 the parties’ property relationship proceedings were before the District Court for hearing. The hearing was vacated on the father’s application.
cc)On 4 July 2005 the updated report of Dr Rikard-Bell was released.
dd)On 6 July 2005 Senior Registrar Messner ordered that the suspension of contact continue and the paternal grandparents were restrained from having contact with the children, apart from sending cards, gifts and letters.
ee)On 7 July 2005 the father filed an application for review of the Senior Registrar’s decision.
ff)On 25 July 2005 the father’s application for review and his oral application for a further expert’s report was dismissed by the Full Court and the father was ordered to pay the costs of the appeal.
gg)On 4 August 2005 her Honour Justice Lawrie discharged the orders relating to the paternal grandparents not having contact with the children and refused the father’s application for renewal of contact.
hh)On 27 September 2005 the final hearing was listed before his Honour Justice Cohen. Orders were made by consent providing for the children to live with the mother and have contact with the father. The father’s contact was conditional on his attendance and completion at an Anger Management Course and pending its completion the contact was supervised. His Honour, upon determination, ordered that the mother have sole parental responsibility for the children and made orders for the father to pay certain costs of the Child Representative and the mother.
ii)On 5 April 2006 Mark was suspended from school.
jj)On 10 April 2006 mother filed a Contravention Application and Application in a Case.
kk)On 12 April 2006 the Federal Magistrates Court ordered that Mark be returned to the mother at the conclusion of the school holidays. The father told the court he sought a variation of the September 2005 Orders.
ll)On 1 May 2006 the father filed an Application to discharge the September 2005 Orders and sought an order that the children live with him and change schools to his area.
mm)On 4 July 2006 the Court found the mother’s application for contravention proved in relation to 3 counts.
The legal principles
Rule 13.10 of the Federal Magistrates Court Rules 2001 provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Before varying existing parenting orders, the court must be satisfied there are circumstances which require the court to consider afresh how the welfare of a child should best be served. It is open to the Court to deal with change of circumstances as a preliminary matter on the papers, or to proceed to a full hearing of the matter[3]. The Full Court in Rice & Asplund (1979) FLC 90-215 held at 78,905 that:
“A Court should not lightly entertain an application to reverse an earlier custody order. 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.”
[3] See King & Finneran (2001) FLC 93-079 and EJK & TSL (No. 4)[2006] FamCA 1022
and at 78,906, that:
“these principles apply whether the original order is made by consent or after a contested hearing.”
His Honour Justice Collier in King & Finneran (2001) FLC 93-079 said “The rule in Rice & Asplund is a rule evolved to protect children from involvement in further unnecessary litigation.” His Honour said the question is whether the new material before the court makes it necessary in the interests of the children to allow further proceedings. This requires the court to give consideration to the importance or seriousness of the issues raised and the impact they may have on the children. His Honour went on to say:
“The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to re-litigate the parenting issue in dispute between the parties. That is not to say a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is real likelihood that a change may follow.”
The principles enunciated by his Honour Justice Collier were approved and adopted by the Full Court in Bolitho & Cohen [2005] FamCA 458 at 45. In the recent decision of R & BH [2006] FamCA 919 the Full Court approved the dicta of Marshall SJ in Houston v Sedorkin (1979) FLC 90-699 at 78,728 when His Honour said:
“the parties seeking the discharge of a current order for custody should place before the Court evidence which demonstrates a material change in circumstances such as to warrant the discharge or variation of the current order. This is of particular relevance in a case where a relatively short period of time has elapsed since the date of the making of the current order.
It is clear that recent changes to the Family Law Act 1975, which came into effect on 1 July 2006 are not grounds alone for a Court to change orders:
“The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or remove the operations of, some or all or a parenting order that was made before commencement.”[4]
[4] Family Law Amendment (Shared Parental Responsibility) Act 2006, Schedule 1, item 44.
The principles governing summary dismissal were enunciated by the High Court in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others [1964] 112 CLR 125 Barwick C.J said at p 129:
The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “discloses a case which the Court is satisfied cannot succeed.”
Applying the General Steel decision, his Honour, McHugh J in Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 271 said:
The power to strike out pleadings…cannot be exercised unless "the case of the plaintiff is so clearly untenable that it cannot possibly succeed." In General Steel, Barwick CJ warned that the power to strike out a pleading must be sparingly exercised; the mere fact that the plaintiff's prospects of success are slim is not enough to strike out a pleading.
The Full Court of the Family Court in the recent decision of Bain Pacific Associations LLC & Ors & Kelly & Ors (2006) FLC 93-270 at 21 noted this qualification:
“we accept the proposition…that apart from material in the case of the respondent to an application for summary dismissal, the court may have regard to relevant non-contentious facts, even if raised by the applicant for summary dismissal.”
Kirby J in Lindon v Commonwealth of Australia (No. 2)(1996) 136 ALR 251, at 256 said:
“An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of the court.”
His Honour Justice Coleman in Middleton and Rhodes [2005] FamCA 1200 adopted these passages from Kirby J:
This Court [is]in no doubt that the power to grant an application [to summarily dismiss an application] must, to use Kirby J’s words be exercised rarely and sparingly.
Kirby J set out the guiding principle:
Doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Has there been a change of circumstance?
Final Orders were made on 27 September 2005. The father filed his Application for Variation of the Orders on 1 May 2006, only 7 months later.
In his affidavit in support of his Application, the father deposes to both children repeatedly telling him they have wanted to live with him since the parties separated in 2003.
The father says in his affidavit:
Both my children tell me that their home life with their mother is often unbearable and expressions such as what Melanie said to me on 8/04/06 (‘please dad, don’t make me go back, please dad let me go home with you, it’s like being in gaol there’) are commonplace.
Mark’s relationship with his mother has deteriorated markedly in the past few years. Since the separation of their mother and me, Mark and Melanie have informed me of countless assaults on them by their mother and other members of her family.
From the Bar Table, the father says:
She bashes my children. This has been going on for years.
I witnessed the grandmother assault my daughter.
They (the children) are being bashed and the police are ignoring them.
The mother’s using drugs.
The paternal grandmother says in her affidavit that the children “have repeatedly stated to me that they want to go back to MPS” and live with the father. However, she gives no evidence as to when those statements were made.
The father submits the children are constantly “bashed” by their mother and they are not allowed to use their mobile phones.
Ms Miller, the father’s de facto partner, deposes to Mark reporting being assaulted on Christmas Day 2005 “he told me that he was firstly choked and had his windpipe pulled out by one of his uncles and then taken downstairs to another party of the house where he was thrown over a workbench by two of his uncles, hurting himself on a shadow board which holds tools.” She deposes to the children’s heads being infested with lice “on every occasion the children have visited their father”.
The father deposes to two incidents involving the police in April of this year.
On 6 April 2006 he says the children took themselves to a north Sydney police station from the mother’s home. The father says “Mark ended up in a physical fight with his mother that led to him and Melanie going to the police station. I was called to the station to assist my children and found marks on Mark and dried blood in his nose that was a result of being punched by his mother during an argument earlier on.” He deposes to attending the police station to “assist my children” and to the police inviting him to take the children home with him overnight. Ms Miller deposes to seeing Mark with “a big scratch on his neck and a bruise on his face.”
On 8 April 2006 the father deposes to an event involving Melanie and her maternal grandmother at a police station when the father says he saw the grandmother “knocking her backwards by hitting her in the chest, shoulders and head” and to Melanie saying “dad, don’t make me go back there. I am never going back there.” He deposes to Melanie telling him she had run away “because everyone was pushing her around and her Uncle Fred had thrown her into a closet door.” Ms Miller deposes to observing the maternal grandmother preventing Melanie from running to her father when she saw him, “by slapping her around the shoulders, the head and her breast area.”
In her affidavit sworn 7 June 2006, the mother denies the father’s allegations.
During the hearing of the mother’s Application for Contravention in July 2006, I examined the evidence of both parties in relation to the alleged events of 6th and 8th April 2006. Both parties were cross-examined and police reports were tendered in evidence. The police took no action in relation to Mark’s allegations of 6 April 2006.
The police noted[5] “the father of (Mark) was unco-operative and aggressive towards police accusing them of telling (Mark) it was OK for him to be bashed by (the mother).” The police noted that Mark had a bad attitude towards police and had been suspended from school. The police report of 8 April 2006[6] says “police do not have any concerns for the welfare of the young person while she is in the custody of her mother. There is no evidence to suggest she is being mistreated.” At the end of the hearing in relation to the Contravention Application, I made findings that the father had no reasonable grounds for removing the children from the mother to protect the children’s safety on either the 6th or the 8th April 2006. I ordered the father be restrained from allowing the children to take their mobile telephones to the mother’s when they were living with her.
[5] Exhibit 1.
[6] Exhibit 2.
I find the father’s application for variation is “doomed to failure”. I am not satisfied there has been any change in circumstance since September 2005. It is clear from a reading of the reports of Dr Rikard-Bell that the father’s Application is simply a repeat of the many and serious allegations he made prior to the September 2005 hearing.
All the matters raised by the father in support of his Application were examined in detail by Dr Rikard-Bell. I set out the relevant parts of
Dr Rikard-Bell’s reports in the following paragraphs.
In his report dated 19 April 2005, Dr Rikard-Bell sets out the comments and conclusions from the assessment records of the Department of Community Services dated 2 February 2005:
The father has made allegations on several occasions with the Case Worker and Police. He has become increasingly frustrated that his concerns have not been acted upon instantly and the children continue to live with their mother…“the father presented as being very aggressive and appears to have a distorted version of incidents. It appears he is trying to manipulate things so that the children can live with him. He is concerned he will not lose the house money is often mentioned in the phone calls.”
…the father’s continued manipulation of the children and the creation of incidents so they can live with him has a high level of impact on the children and has resulted in continued deterioration in their emotional stability and concern for their long-term psychological impact on the children.”
“The father continues to repeat concerns and allegations about abuse by the mother that have already been assessed by the Department as well as making malicious reports of allegations of abuse. The children continue to give the father information that he wants to hear whether or not it is correct. In the past there is clear evidence that the father has lead the children in their telling him of abuse by the mother. It would appear that the children have answered as they feel that this is what he wanted to hear and he would not stop until they give him the information that he wants.”
In his Opinion at page 12 of his report of April 2005, Dr Rikard-Bell says about the children:
They appeared to be loyal to their father and have become strongly aligned with him.
…it appears from my observations and from the information provided from the DOCS notes and from the interviews that the father has involved the children in a campaign to undermine the mother. I formed the view that he wants to cut their mother out of their lives and out of his life or that he would like to continue attacking the mother.
In his second report dated 4 July 2005, Dr Rikard-Bell reported the father telling him that Mark had reported to the school counsellor that his mother had bashed him. The father told Dr Rikard-Bell “The DOCS officer said that he was making it up. I made all the DOCS reports about my son getting bashed. I only told them what he said. I said ‘I can understand why people get shot in this situation.’
In his Opinion at page 7 of the report of July 2005, Dr Rikard-Bell says:
[The father] appears to believe his statements that [the mother] is a drug abuser and a child abuser and continues to make these allegations. He has made many reports to DOCS even though the department has not substantiated his accusations. There have been several different people from the Department of Community Services who have been involved with this matter and none of them have felt the same level of concern as the father about the mother. It appears to be the conclusion from the department that without substantiation and evidence to support the allegations that the father’s continued reports are vexatious. I formed the view that the father wants or needs to hear bad things about the mother and that the children respond to this need to please the father. [The father] then accepts what the children say without question and then reports to DOCS what the children have said. The father appears to have little insight into his behaviour and the potentially damaging effect on the children.
The children appeared to be locked in a battle joined with the father against the mother. They appeared to be relentless in their opposition to her. They are attempting to undermine her…
The children clearly state that they want to live with the father and that they want to have very little to do with the mother or the mother’s family…I still form the view that the statements and the attitude of the children at present is not a true reflection of their feelings towards the mother however the children find themselves in a very difficult conflicted situation and a very difficult power struggle.
…There don’t appear to be any clear signs to suggest that the children are being physically abused despite the continued statements and allegations from the father and the children. The father strongly alleges that the mother continues to abuse drugs. I note the drug screens have been clear.
Conclusion
I accept the submissions of both the mother’s solicitor and the Independent Child Lawyer that the father’s Application is based on “more of the same.” I am not satisfied there has been any change in circumstance such as to require re-litigation. I find there is nothing to be gained by the children by allowing the issues raised by the father to be re-litigated. Accordingly, I have dismissed the father’s Application.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 14 November 2006
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