Judd & Pryor (No.2)
[2020] FamCA 934
•26 October 2020
FAMILY COURT OF AUSTRALIA
| JUDD & PRYOR (NO. 2) | [2020] FamCA 934 |
| FAMILY LAW – CHILDREN – Rice & Asplund threshold dispute – Where final parenting orders were made in September 2016 – Where the orders expressly provided for the child to spend no time at all with the father – Where the father’s application to commence fresh proceedings in 2018 was dismissed – Where the father again seeks to re-contest the final parenting orders on the basis of changed circumstances – Where the mother sought immediate dismissal of the proceedings – Where the child is 15 years of age – Where no evidence the child has voluntarily tried to re-establish contact with the father over the past five years – Where the evidence adduced by the father tends to demonstrate the correctness of previous findings and the absence of any change in circumstances – Where there is no evidentiary basis to conclude the parenting dispute over the child should be reopened – Ordered the father’s application be dismissed |
| Family Law Act 1975 (Cth) Pt VII, ss 45A, 65D |
| Judd & Pryor [2020] FamCA 782 Langmeil & Grange [2013] FamCAFC 31 Marsden v Winch (2009) 42 Fam LR 1 Miller & Harrington (2008) FLC 93-383 Poisat & Poisat (2014) FLC 93-597 Pryor & Judd [2016] FamCA 820 Rice & Asplund (1979) FLC 90-725 Searson & Searson (2017) FLC 93-788 Spencer & Commonwealth of Australia (2010) 241 CLR 118 SPS & PLS (2008) FLC 93-363 |
| APPLICANT: | Mr Judd |
| RESPONDENT: | Ms Pryor |
| FILE NUMBER: | NCC | 3004 | of | 2014 |
| DATE DELIVERED: | 26 October 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 26 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Not Applicable |
Orders
The Initiating Application filed on 6 April 2020 is dismissed.
The Amended Response filed on 26 July 2020 is dismissed.
No order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Judd & Pryor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 3004 of 2014
| Mr Judd |
Applicant
And
| Ms Pryor |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
In September 2016, Cleary J made final parenting orders between the applicant father and the respondent mother under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of their only child; a son who is now aged 15 years (Pryor & Judd [2016] FamCA 820 (“Pryor & Judd”)).
In August 2018, the father started fresh proceedings but they were dismissed by Cleary J in December 2018 because the father could not demonstrate any changed circumstances to warrant reconsideration of the orders.
In April 2020, the father started these current proceedings seeking orders that the child live with the parties for “equal time” (though he has since also implied that suitable orders might alternatively provide for the child to spend “substantial and significant time” with him), even though the child has not seen or spoken to him for about five years.
As before, the mother seeks the immediate dismissal of the proceedings. As pleaded in her Amended Response filed on 26 July 2020, she seeks the dismissal of the father’s Initiating Application either summarily, pursuant to s 45A(2) of the Act, or pursuant to the guideline principles which require the demonstration of materially changed circumstances (Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”)).
The mother’s application was not entertained on 18 September 2020, as was originally intended. The father filed an Application in a Case on 12 August 2020 seeking my disqualification, but the application was dismissed (Judd & Pryor [2020] FamCA 782) and the mother’s application was adjourned for more than one month to allow time for the father to appeal from the decision. He did not appeal within the applicable limitation period and so now the mother’s application can be heard and determined.
Evidence
The mother asks that her application be heard as a preliminary inquiry, in which case I must take the father’s evidence at its highest, whether the application is considered under the Rice & Asplund guideline (Searson & Searson (2017) FLC 93-788 at [11], [43] and [60]) or under s 45A(2) of the Act (Spencer & Commonwealth of Australia (2010) 241 CLR 118 at [25]-[34] and [46]-[49]).
The only material filed by the father, excluding the short affidavit he filed in support of his unsuccessful disqualification application, comprises:
a)the affidavit he filed on 1 September 2020; and
b)a single page containing eight paragraphs described on the Court file as a “Case Outline”, also filed on 1 September 2020.
In his affidavit, the father said:
(2)I don’t know how [the mother] can live with her self knowing that she has deliberately destroyed mine and [the child’s] relationship.
(3)It is what it is and nothing can change what has happened I used to have a lot of respect for [the mother] but after the way she has treated me I would not piss on her if she was on fire.
…
(5)[The mother] needs to grow up and get over her self she is a stuck up little cow that has done everything in her power to stop me from seeing my son.
(6)She has always known me and know I can be a hot head and opinionated.
(7)She chose to have a baby with me now she does not want to share.
(8)I know I can feel it in my heart that my son misses his dad and [the mother] does not at all care about the Psychologically effects this will have in the future …
(9)… we have a child that needs both parents in his life and he had that in his life for many years and then [the mother] deliberately took that away from him and I’m I’m worried the the long term effects of him not having his father in his life like I didn’t have a father in my life I know how it feels.
…
(11)my criminal record in the past I’m ashamed of it mistakes have been made threats have been made and never acted upon I have since turned it around and changed my entire life that’s why rices asplin can’t possibly be implemented.
…
(13)I’m also proud to say that I have continued to stay out of trouble with police I have a continued to work on my anger management I’ve continued to work on my parenting skills I have done everything I can to better myself to prove to [the mother] and the courts that I am changed …
…
(15)I asked that [the mother] shows the court some evidence if any evidence at all that shows that [the child] has ever been in any danger whatsoever she continues to make up storeys and and carry on from what happened back in 2013 a lot has changed since then.
(As per original)
In his Case Outline, the father said:
(1)I asked that [the child] be asked what he wants to do I think it’s it’s extremely important that [the child] has a voice and that he tells us what he wants to do considering his 15 …
…
(8)I ask that the court understands that in almost eight years not a single incident has happened between [the mother] and which supports what I say when I say that there’s been not a single bit of trouble I have abided by every law and now I ask if needs be to have this retrial as last time no affidavits were ever filed in the trial previously.
(As per original)
The mother relied upon her affidavit filed on 5 August 2020 but, to the extent any of its contents are inconsistent with the father’s evidence, his evidence is accepted. Relevantly, the mother deposed:
(5)[The child] is now aged 15 years old and is currently completing year 10 at school.
(6)[The child’s] grades have been consistent, and I am proud of the effort that he has made at school over the last several years.
(7)[The child] has ADHD, a condition that at times can make for challenging behaviour and thus requires an abundance of patience and persistence to support his needs …
…
(12)[The father] has not seen [the child] since around June 2015.
(13)On 17th December 2018 an application by [the father] to have orders re opened was dismissed by Justice Cleary. [The father] and I were represented throughout this hearing and an ICL was also present.
…
(16)I strongly oppose the re opening of new court action relating to this case and I ask the court to dismiss the application which has been filed by [the father].
…
(19)The 2018 application caused significant anxiety and worry for [the child]. It caused disruption at school. I was forced to inform [the child] about what was happening due to [the father] sending his brother [name] to our home where he was loudly demanding to see [the child] at our front door …
…
(21)Due to the stress and anxiety caused from this application I needed to take stress leave from work as the stress and anxiety has deeply affected me. I am filled with worry and anxiety over this litigation and this is having a direct impact on my family. I am in fear of [the father] …
(As per original)
The 2016 proceedings
On 28 September 2016, Cleary J ordered that the child live with the mother and she have sole parental responsibility for him. It was expressly ordered that the child spend no time at all with the father, who was restrained from entering the child’s residence and school.
Those orders were based on findings to the effect that:
a)the parties’ relationship was violent, characterised by the father’s assaults of the mother (Pryor & Judd at [22]);
b)the father voluntarily absented himself from the child’s life for several years after the parties’ separation (Pryor & Judd at [25] and [116]);
c)the father did not pay child support for the child (Pryor & Judd at [26], [116] and [118]);
d)the father was convicted of violent crime, apparently unrelated to “family violence” (Pryor & Judd at [28], [30], [41] and [123]-[129]);
e)in November 2014, the child alleged he was sometimes physically assaulted by the father, which the father admitted to the mother (Pryor & Judd at [42] and [43]);
f)the father continued to threaten the mother with physical assaults in November 2014, notwithstanding their separation years before (Pryor & Judd at [44], [49] and [50]);
g)the child expressed a view that he wanted to spend time with the father (Pryor & Judd at [93] and [108]), but was under perceived pressure from the father to say so (Pryor & Judd at [98], [102], [103] and [109]);
h)there was a risk of the child suffering harm by reason of his exposure to family violence in the father’s household (Pryor & Judd at [131]); and
i)the father was unwilling to see the child under supervised conditions (Pryor & Judd at [121], [136] and [137]).
In the circumstances, Cleary J concluded her reasons for judgment with this observation (Pryor & Judd at [146]):
For all these reasons, orders will be made as sought by the mother and the Independent Children's Lawyer. In less than seven years time the child will be an adult and can make his own decisions about restoring a relationship with his father if he chooses to do so.
(Emphasis added)
The child is now 15 years of age. He has not seen or spoken with the father since Cleary J made the last orders in September 2016, or for about a year before that. Despite his increased age and maturity, the child has not voluntarily sought out the father. Cleary J intended the orders would extend until the end of the child’s minority, which is about 30 months hence.
What change?
I will first consider application of the Rice & Asplund guideline.
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; SPS & PLS (2008) FLC 93-363 at [1]; Marsden v Winch (2009) 42 Fam LR 1 (“Marsden v Winch”) at [48]; Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
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 (“Miller & Harrington”) at [80]-[83]) 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]).
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.
The evidence adduced by the father tends to demonstrate the correctness of Cleary J’s findings and the absence of any change in circumstances since her Honour’s decision. The father still disrespects the mother and “would not piss on her if she was on fire”. He still considers her a “stuck up little cow”. He admits he can be “a hothead and opinionated”, so assertive aggression remains a feature of his character.
The father believes the child misses him but, despite the honesty of his feelings, he could not know whether or not the child really does. Despite now being an adolescent, there is no evidence the child has voluntarily tried to re‑establish contact with the father over the last five years, which powerfully implies the child has no strong desire at this point to restore his relationship with the father. Contrary to the father’s implied belief, his enforced absence from the child’s life was an outcome ordered by the Court; not one caused by the mother’s unreasonableness.
Although the father says he is ashamed of his criminal record and has “changed his entire life”, there is no evidence to enable such an inference of change to be objectively drawn. An absence of further criminal convictions does not, in isolation, do that. The father’s asserted completion of an anger management course and a parenting course, which I accept as being truthful, does not mean he has necessarily learned anything from them. The contents of his affidavit and Case Outline, let alone the tone of his oral submissions, strongly imply his inability to apply anything he has learned from those courses to these proceedings.
The father’s application is for the child to live with the parties for equal time, though his fallback position is for the child to spend time with him “at least every second weekend and half school holidays”. Such an outcome from this litigation would be a quantum leap for a 15 year old boy who has not seen or heard from his father for the past five years.
Given that the result of any proceedings under Part VII of the Act must be dictated by the child’s best interests – not the hopes or desires of only one or both parties – there is no evidentiary basis to conclude the parenting dispute over the child should be reopened. The evidence now available does not permit an inference that the orders made by Cleary J in September 2016 are liable to be changed in any significant way.
The father complained that he did not file affidavits or participate fully in the last proceedings but that was his choice, as Cleary J explained (Pryor & Judd at [6]-[16] and [81]-[84]). There was no appeal from the orders made in September 2016, notwithstanding the father’s voluntary absence from the trial from the second day. The father cannot now, four years later and without evidence of any changed circumstances, try and run a case he deliberately chose not to run the first time around.
For those reasons, the father’s application should be dismissed pursuant to the Rice & Asplund guideline. I therefore make the following orders.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 26 October 2020
Associate:
Date: 9 November 2020
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