Karalis and Bella
[2010] FMCAfam 798
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KARALIS & BELLA | [2010] FMCAfam 798 |
| FAMILY LAW – Parenting orders – mother seeking to discharge final parenting orders made in 2006 – Rice & Asplund – alleged incidents involving child – where there has been a sufficient change of circumstances – damage to child of re-opening parenting proceedings – application dismissed. |
| Family Law Act 1975, Part VII, ss.55A, 60CA, 60CC, 61DA, 64B, 65D |
| In the Marriage of D & Y (1995) 18 Fam LR 662; (1995) FLC 92-581 In the Marriage of McEnearney (1980) FLC 90-866 In the Marriage of Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90–725 In the Marriage of Schorel (1990) 14 Fam LR 105; (1990) FLC 92-144 Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 Miller v Harrington [2008] FamCAFC 150; 39 Fam LR 654; (2008) FLC 93-383 P & S (No.2) (2007) FMCAfam 1039 SPS v PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; (2008) FLC 93-363 Sklovsky & Gastin [2007] FamCA 540 |
| Applicant: | MS KARALIS |
| Respondent: | MR BELLA |
| File Number: | SYC 3391 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 30 June 2010 |
| Date of Last Submission: | 30 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Konstan Lawyers |
| Counsel for the Respondent: | Mr Maurice |
| Solicitors for the Respondent: | Greg Morahan & Co. |
THE COURT ORDERS THAT:
The Mother’s Initiating Application filed 31 May 2010 be dismissed.
Paragraphs 7 and 8 of the orders made 10 June 2010 be discharged.
The Father’s Application seeking costs be adjourned for hearing on a date to be fixed.
IT IS NOTED that publication of this judgment under the pseudonym Karalis & Bella is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3391 of 2010
| MS KARALIS |
Applicant
And
| MR BELLA |
Respondent
REASONS FOR JUDGMENT
Introduction
By her Initiating Application filed 31 May 2010, MS KARALIS (“the mother”) seeks various parenting orders against MR BELLA (“the father”) in respect of their child [X] born in 2002 (“[X]” or “the child”) including an order that the current parenting orders be discharged.
The mother’s application is opposed by the father who filed a Response on 10 June 2010.
In summary, the mother is seeking to discharge the final parenting orders made in the Family Court of Australia by Cohen J on 30 June 2006. These final orders arose from his Honour’s decision delivered and published on the day[1] and following a four-day defended hearing that commenced on 30 January 2006. The father is seeking, inter alia, for the mother’s application to be dismissed, and for his costs in this matter to be paid by the mother on an indemnity basis.
[1] Bella & Karalis (Unreported, FCoA, 30 June 2006).
In addition to seeking the discharge of the parenting orders made by his Honour, the mother is now seeking final orders for:
·sole parental responsibility;
·[X] to spend time with the father “as may be agreed between the parties”
Interim orders that include;
·supervision of any time spent by [X] with the father.
The matter initially came before Baumann FM on 4 June 2010 by way of an Application in a Case seeking expedition. On that occasion his Honour made orders dismissing the Application in a Case but otherwise adjourned the mother’s substantive application to my duty list on 10 June 2010.
When the matter came before me on 10 June 2010, I agreed to a request from the father that the matter be listed as soon as possible for the hearing of a discreet matter; namely a threshold question as to whether the mother’s application should be able to progress or be dismissed for the reasons expressed by the Full Court of the Family Court in In the Marriage of Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90–725 (“Rice & Asplund”).
Consequently, I made orders adjourning the matter until 30 June 2010 for submissions in relation to this threshold question. On that occasion I also made the following interim parenting orders:
“6. All current parenting orders remain in full force and effect subject to paragraphs 7 and 8 herein.
7. Both parties be and are hereby restrained from taking [X] born [in] 2002 (“the child”) to any psychologist or psychiatrist without the written consent of the other party.
8. Where the Respondent is to spend time with the child, that time is to be supervised by the child’s paternal grandmother, namely Ms BA, the child’s paternal aunt, namely Ms BB, or by any other such adult as agreed between the parties.”
When the matter came before me on 30 June 2010 the mother was represented by Mr Jackson of Counsel and the father was represented by Mr Maurice of Counsel.
At the conclusion of the hearing I indicated to the parties that I proposed reserving my decision to 30 July 2010.[2]
[2] Transcript, 30 June 2010, page 19, line 42.
Background
The background of the parties is set out in considerable detail in the published decision of Cohen J.
In summary, the parties have never cohabitated but enjoyed a brief relationship that resulted in [X]’s birth in 2002. It is clear that the parties’ relationship has been severely strained since [X]’s birth and has not improved in the years since. In paragraph 1 of this decision, Cohen J states:
“[X] … was born … with the severe genetic disease known as Crouzon’s syndrome.[3] She has the added impediment to her future happiness and wellbeing of being the subject of a relatively intractable conflict between her parents, other parties, over the contact the father ought to have with her.
[3] Cohen J discusses the child’s condition, and the related evidence, in considerable detail throughout his decision, in particular paragraphs 7-22.
The father commenced proceedings in 2003 in the Family Court of Australia seeking to spend time with [X]. As previously stated, the matter was finally heard by Cohen J in 2006 and concluded with comprehensive orders being made by his Honour on 30 June 2006. Those orders provided, inter alia, for:
·the parties to have “the joint right and the joint responsibility to make and implement decisions for the said child’s future including for her long term care, welfare and development but not limited to her medical and hospital care and schooling”;[4]
·the father to have “contact” with [X] for defined periods[5] with such times increasing so that as from 1 April 2010 the time be “each alternate weekend during school term from after school on Friday to the commencement of school on the following Monday”, the first half of school term holidays, and for one half of the annual summer school holidays;[6] and
·changeovers to occur where possible at [X]’s school.
[4] Final orders made 30 June 2006, paragraph 21.
[5] Ibid, paragraph 11(a)-(h).
[6] Ibid, paragraph 11(f).
For the period 1 April 2009 until 31 March 2010, the final orders provided for [X] to spend time with the father “immediately after school or during school holidays from 5.30 pm on each Friday to the commencement of school or during school holidays to 9.00 am on the following Monday and from 5.30 pm to 7.30 pm each Wednesday”.
It is clear that the changes to the final orders which occurred on 1 April 2010 were significant in that they provided for [X] to spend time with the father, for the first time, for half of all school holiday periods.
The final orders also provided for various restraints to be placed upon the parties, and in particularly the mother. In addition, paragraph 20 of the orders provided:
“20. That each party shall forthwith and in writing inform the other of the time and date and place of any appointment made for the said child with any health care worker or the like or for admission of the child to hospital or from any observable change in the said child’s medical symptoms or condition.”
The mother subsequently sought to appeal his Honour’s decision and, in addition, sought a stay of the final orders. This was refused by his Honour and the mother also appealed on the stay issue. The appeal in relation to the stay issue was determined by the Full Court of the Family Court (Warnick, May and Boland JJ) on 1 September 2006 and the appeal was dismissed.[7] The mother subsequently withdrew her substantive appeal.
[7] See K and B [2006] FamCA 848, (2006) 37 Fam LR 1; (2006) FLC 93-288.
Evidence of the parties
Both parties provided the Court with affidavit evidence and relied on documentation produced under subpoena and tendered during the hearing.
The following documents were relied upon by the mother:
·Initiating Application filed 31 May 2010 (“her application”);
·Mother’s affidavit sworn 28 May 2010 and filed 31 May 2010 (“her first affidavit”);
·Affidavit of Ms M (mother’s employee) sworn 28 May 2010 and filed 31 May 2010 (“Ms M’s affidavit”);
·Notice of Child Abuse and Family Violence filed 31 May 2010; and
·Mother’s affidavit sworn and filed 18 June 2010 (“her second affidavit”).
The following documents were relied upon by the father:
·Response filed 10 June 2010 (“his response”);
·Father’s affidavit sworn and filed 10 June 2010 (“his first affidavit”);
·Affidavit of Ms BA (paternal grandmother) sworn and filed 10 June 2010 (“paternal grandmother’s affidavit”);
·Father’s affidavit sworn 25 June 2010 and filed 28 June 2010 (“his second affidavit”);
·Affidavit of Ms BB (paternal aunt) sworn 25 June 2010 and filed 28 June 2010 (“paternal aunt’s affidavit”);
·Affidavit of Ms F (father’s friend) sworn 25 June 2010 and filed 28 June 2010 (“Ms F’s affidavit”); and
·Case Outline document written by Mr Maurice and dated 30 June 2010.
The law
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”).
Parenting orders are defined in s.64B of the Act and deal with where the child is to live, the time the child is to spend with another person or otherwise allocate parental responsibility in relation to a child.
Section 65D of the Act provides that the Court must make such parenting order as it thinks proper. The Court may make a parenting order that varies, discharges, suspends or revives all or some of the earlier parenting orders, but as stated by O’Ryan J in Sklovsky & Gastin [2007] FamCA 540, there is no statutory provision dealing particularly with when a Court may do so.[8]
[8] [2007] FamCA 540 at [123].
Section 60CA of the Act makes it clear that for the purposes of making a parenting order the Court must regard the best interests of the child as the paramount consideration. What is considered to be in the best interests of the child in parenting disputes necessarily depends on the particular circumstances in each case. That said, to determine the best interests of the child, the Court must have regard to the primary and secondary considerations under s.60CC of the Act.
The rule said to be established in Rice & Asplund is that where a final parenting order has been made, the applicant must establish a significant change of circumstances before the Court will entertain a rehearing of the parenting issues.[9] In other words, before discharging or varying existing parenting orders, the Court must be satisfied there are significant changed circumstances that require the Court to consider afresh how the welfare of a child should best be served.[10] If the Court did not adopt such an approach, then, to quote Evatt CJ in Rice & Asplund, the result “would be to invite endless litigation for change”.[11]
[9] SPS v PLS [2008] FamCAFC 16 at [1] (per Warnick J).
[10] In the Marriage of Rice & Asplund (1978) 6 Fam LR 570 at 572; (1979) FLC 90-725 at 78,905 (per Evatt CJ); see also Barrett & Plant [2009] FMCAfam 417 at [14] (per Sexton FM).
[11] In the Marriage of Rice & Asplund (1978) 6 Fam LR 570 at 572; (1979) FLC 90-725 at 78,905.
In the more recent case of SPS v PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295; (2008) FLC 93-363, Warnick J considered the rule in considerable detail and stated at paragraphs 56 to 59:
“[56] … in Rice & Asplund, Evatt CJ recognised that a purpose of the rule was to discourage "endless litigation". I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.
[57] In In the Marriage of McEnearney (1980) FLC 90-866 (McEnearney), Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499):
... the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.
The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child. [Emphasis added]
[58] Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
[59] If the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.”
Later in his judgment Warnick J remarked:
“[81] … in my view, when the threshold question described in Rice & 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 not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. 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.
…
[84] Although I do not suggest that, when judgments of the court in which the rule is discussed are read in full, the rule is in any case inaccurately or even insufficiently expressed, sometimes “shorthand” descriptions of the rule are used and are then taken up by others in later cases. Some phrases used seem to better direct attention to the essential question than others. For example, the phrase used by Nygh J in McEnearney, that a court should discourage a parent from coming back to court where there “is really no startling new circumstance”, focuses attention on the character of the circumstance itself. Similarly, terms such as “a substantial change in circumstance since the making of an existing order”, as used by the Full Court in D & Y,[12] may tend to focus attention on the character of a particular event or events. The essential question, however, is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.
[12] In the Marriage of D & Y (1995) 18 Fam LR 662; (1995) FLC 92-581.
…
[86] This provision, and the position that the rule in Rice & Asplund is merely a manifestation of the best interests principle, establish that the rule survives. However, its application must recognise the new legislative content in which the question is now posited and answered. This includes the objects (and underlying principles) of the part, set out in ss 60B and 61DA which provides that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption may be rebutted, but if it is not, then under s 65DAA, the court must consider whether the child spending equal time with each parent would be in the bests interests of the child or, if such an order is not to be made, whether the child spending substantial and significant time with each parent would be in the best interests of the child.”
His Honour’s comments were recently considered by the Full Court in Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 “Marsden & Winch”).[13] In their judgment Bryant CJ, Finn and Cronin JJ stated at paragraphs 48 to 50:
“[48] In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
[49] However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
[50] 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.”
[13] See also Miller v Harrington [2008] FamCAFC 150; 39 Fam LR 654; (2008) FLC 93-383.
In concluding the discussion of the law, the Full Court stated at paragraph 56:
“[56] In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied ...”
And then at paragraph 58 stated:
“[58] That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.”
Submissions
The mother’s submissions
Mr Jackson for the mother opened by submitting that this Court was not bound by the findings made by Cohen J in the 2006 decision, and in particular, his Honour’s credit findings in relation to the mother.[14] In support, Mr Jackson referred the Court to the decision of In the Marriage of Schorel (1990) 14 Fam LR 105, (1990) FLC 92-144 (“Schorel”) and submitted “there is no res judicata or issue estoppel in relation to children’s matters”.[15] Mr Jackson then quoted from that decision as follows:[16]
“Public policy, upon which estoppel is based, does not support the use of that doctrine within this jurisdiction -- at least in its jurisdiction in relation to the custody of children. The court had a clear obligation to concern itself with the welfare and interests of the child or children concerned and may not allow that duty to be circumscribed by what are basically technical rules of evidence.”[17]
[14] Transcript, 30 June 2010, page 4, lines 32-34.
[15] Ibid, page 4, line 46 and page 5, line 1.
[16] Ibid, page 5, lines 4-8.
[17] In the Marriage of Schorel (1990) FLC 92-144 at 78,004.
Mr Jackson argued[18] that the mother’s application was a completely different case to the one that was argued in 2006, and should be allowed to proceed because of a change of circumstances in relation to [X]. In particular, Mr Jackson argued that the Court should now take into account [X]’s views, as articulated in the mother’s affidavits[19] and Ms M’s affidavit,[20] given the Court did not have the benefit of [X]’s views at the hearing because she was so young at that time.[21] [X]’s evidence also places the father’s parenting abilities under question.[22]
[18] Transcript, 30 June 2010, see generally pages 5-6.
[19] In particular, paragraphs 11, 14, 28, 32, 33, 41 and 44 of the mother’s first affidavit.
[20] Mr Jackson referred the Court to paragraphs 5, 8 and 11 of Ms M’s affidavit.
[21] Transcript, 30 June 2010, page 5, lines 32-34.
[22] See paragraphs 18, 24, 25 and 26 of the mother’s first affidavit.
Mr Jackson also referred the Court to the recent referral by [X]’s school teacher to a school counsellor[23] noting inter alia that “[X]s anxiety and unhappiness is outside” the range of her teacher’s skills to handle.
[23] See Exhibit “AM1”.
Lastly, Mr Jackson, in referring the Court to Warnick J’s decision in SPS v PLS, submitted that the rule in Rice & Asplund is merely a manifestation of the best interests’ principle, and that if the Court denied the mother the opportunity of allowing her case to move forward, then that result would amount to “effectively censoring the child”.[24]
[24] Transcript, 30 June 2010, page 7, lines 25-46 and page 8, lines 1-2.
The father’s submissions
Mr Maurice for the father acknowledged that while the Court was not bound by Cohen J’s findings as to credibility, the issues being raised by the mother were exactly the same type of issues that his Honour considered in his 2006 decision.[25]
[25] Ibid, page 8, lines 42-47 and page 9, lines 1-4.
Mr Maurice summarised the mother’s “complaints”, or her arguments demonstrating a change of circumstances in relation to parenting matters, as follows:[26]
1.That [X] does not wish to see her father;
2.That the father is negligent in not seeking treatment for [X];
3.That the parties are unable to communicate and dislike each other; and
4.That the father failed to spend his recent time with [X] under supervision as required by paragraph 8 of the orders made by me on 10 June 2010.
[26] Ibid, see generally pages 10-17.
In relation to the first complaint, Mr Maurice argued that the mother’s own evidence reveals that [X] has been repeatedly questioned by the mother about seeing the father both before and after the matter recently came to Court. Mr Maurice submitted that the mother’s questions “have a forensic quality to them” and provide [X] with no reassurance or encouragement.[27] He asked the Court to read this evidence in light of the previous findings of the trial judge “that the mother had exaggerated and lied during the hearing and that her complaints had escalated over time”.[28]
[27] Ibid, page 11, lines 6-37; see also Applicant father’s Case Outline document page 7.
[28] Applicant father’s Case Outline document page 7; see generally Transcript, 30 June 2010, page 12 and also see page 13, lines 28-30.
In addition, Mr Maurice stated that there was no corroborative evidence before the Court to rebut the father’s denial that [X]’s became distressed or hysterical when spending time with him.[29] As to the alleged incident at changeover on 19 May 2010, Mr Maurice stated that this was the second time the father had been arrested in the presence of [X] without subsequent charge on the basis of the mother’s complaint to the police.[30]
[29] Applicant father’s Case Outline document page 8; also see Transcript, 30 June 2010, page 13, lines 16-17.
[30] Transcript, 30 June 2010, page 13, lines 9-13.
In relation to the second complaint, Mr Maurice submitted that this issue had been “laboured” during the 2006 hearing.[31] Mr Maurice asserted that Cohen J had rejected any suggestion that the father would do anything other than to attend to [X]’s medical needs.[32] For example, Mr Maurice referred to the mother’s comments in paragraph 16 of her second affidavit. In that paragraph it is alleged that [X] had told the mother that the father had been spending time with her outside the supervision of the paternal grandmother or paternal aunt:[33]
“From the above conversation it became clear to me that the Respondent Father was not supervised at all times with [X] as had been ordered by this Honourable Court on 10 June 2010. This disregard of these orders only caused to raise my concerns as to his approach to [X] and her welfare, along with his typical nonchalance as to any signs of illness experienced by [X] (as set out through my earlier Affidavit).”
Mr Maurice then submitted that this complaint relating to an allegation that the father had not sought treatment for a common cold or virus was notable given that [X] had apparently attended school allegedly ill but not sufficiently ill for the school to send her home to recover.[34]
[31] Ibid, page 13, line 23.
[32] Ibid, page 14, lines 1-25.
[33] Ibid, page 13, lines 23-30.
[34] Ibid, page 14, lines 21-25.
Mr Maurice also submitted the pattern of the mother raising [X]’s health issues is not new. He suggested that during the 2006 hearing “the mother had raised a myriad of reasons why the health of the child would prevent the child undergoing the “stress” of spending time with her father.”[35] He further submitted that there was no evidence that [X] spending time with her father was of any relevance to [X]’s recently diagnosed heart murmur. Moreover, Mr Maurice submitted that despite the recent diagnosis of arrhythmia apparently taking place two weeks before the mother’s first affidavit, it was not mentioned in that affidavit.[36]
[35] Applicant father’s Case Outline document page 8.
[36] Ibid; also see Transcript, 30 June 2010, page 14, lines 35-40.
In relation to the third complaint, Mr Maurice stated that the father agreed with the mother’s assertion that the parties cannot communicate.[37] Mr Maurice submitted that this was an issue that the mother had raised during the 2006 hearing yet that factor had not prevented Cohen J from making orders for [X] to spend time with the father.[38] In other words his Honour had taken this reality into account when he framed the orders that incrementally increased the time that [X] would spend with her father.
[37] Ibid.
[38] Ibid, pages 8-9.
In relation to the fourth complaint, Mr Maurice submitted that this was denied by the father and it is also denied by both the paternal grandmother and the paternal aunt’s in their affidavits.[39] Mr Maurice also submitted that the allegation makes no sense in the context of these current proceedings.[40]
[39] Ibid, page 8.
[40] Transcript, 30 June 2010, page 16, lines 29-30.
Mr Maurice also asked the Court to question the mother’s motives in taking [X] to see a psychologist without first informing the father despite paragraph 20 of the orders made by Cohen J.[41] Mr Maurice also referred the Court to Dr D’s letter to Dr V[42] as evidence that the mother had most likely discussed [X]’s alleged problems before the psychologist had actually seen the child.[43]
[41] Ibid, page 16, lines 32-47 and page 17, lines 1-3.
[42] Produced under subpoena and being Exhibit “RF1”.
[43] Ibid, page 18, lines 45-47 and page 19, lines 1-28.
Lastly, during the course of his submissions, Mr Maurice referred the Court to various authorities and in particular the decision of Altobelli FM in P & S (No.2) (2007) FMCAfam 1039 where his Honour also considered a number of relevant authorities.
The wife’s reply
In his reply Mr Jackson reiterated that there was evidence before the Court that there had been a change in circumstances.[44] He submitted that the relevant test for the Court to consider is whether there has been a “change in circumstances” and if so, “that’s enough to open the door in relation to the threshold test” to allow the mother’s application moving forward.[45]
[44] Ibid, page 17, lines 30-34.
[45] Ibid, page 18, lines 2-4.
Discussion
There is considerable on-going conflict between the parties in this case and their relationship seems to have deteriorated further notwithstanding Cohen J’s decision. It is somewhat ironic that the parties were back in Court before me exactly four years to the day after his Honour’s judgment was delivered and the current orders were pronounced.
The earlier proceedings
When the matter initially came before me on 10 June 2010 the mother, through Mr Harper who appeared as Counsel on that occasion, objected to the Court reading the earlier decision of Cohen J. At that time I indicated to the parties that given previous authorities, and most recently the Full Court’s decision in Marsden & Winch, the Court must consider the past circumstances relevant to parties in this case, including the reasons for the Cohen J’s decision and the evidence upon which it was based.
While I agree with Mr Jackson’s submission that there is no res judicata or issue estoppel in relation to parenting matters, the earlier parenting proceedings are still relevant. Moreover, I note that in the case of Schorel, which Mr Jackson referred me to, the Full Court was not considering the issue of Rice & Asplund but rather considering, in the context of a paternity dispute, whether a wife’s agreement to a declaration being made under s.55A of the Act in divorce proceedings, created a situation whereby the wife was estopped from asserting that the husband was the father of all the children in the subsequent parenting dispute. The Full Court (Simpson, Fogarty and Purvis JJ) did not agree.
Returning to the 2006 decision in this case, it is also noteworthy that his Honour’s judgment, which is both detailed and considered, was not ultimately the subject of an appeal by either party, although the Court acknowledges that the mother had filed, and later discontinued, her appeal.
At paragraph 5 of his decision, his Honour outlined the mother’s case in the previous proceedings as follows:
“The mother’s case is essentially that, because of the husband's behaviour, he is unfit to care of [X]. It is said he will not provide properly for her medical needs because he is ignorant of her condition and insufficiently concerned about it and even tends to dispute its existence. However, the major thrust of the mother’s case is that the mother holds the genuine and strong belief that only she can properly care for [X] and only she should be responsible for her care and, whether this belief is justified or not, the mother will be disturbed by not being able to maintain virtually sole control and supervision. Such disturbance, it is said, will undermine her ability to care for [X] and thereby will not be in her best interests. It is implicit in this argument that the wife is overprotective of [X]. Much of the wife’s case involves what appears to me to be an attempt at character assassination without connecting the alleged character faults of the husband to anything which might touch upon his parenting capacity.”
It would be fair to say that his Honour is very critical of the mother’s honesty and behaviour in numerous passages of his decision. This is particularly so when he describes in considerable detail (from paragraphs 41 onwards) the evidence supporting the mother’s “attempts to prejudice and improperly influence” the expert witness Dr Quadrio. At paragraph 106 I note that his Honour was satisfied that the mother also “sought to deceive” the Court in her evidence. Moreover, at paragraph 142, his Honour formed the opinion that the mother has a “general lack of balance and judgment” and in addition states that:
“… Her lack of these attributes to good decision making leaves me with the belief that there is a real risk that the mother is likely to be prone to make poor decisions about [X]’s upbringing and future including decisions about her health.”
Also of note is his Honour’s discussion of the previous Apprehended Violence Order (“AVO”) proceedings between the parties. At paragraph 100 he states;
“The police arrested and charged the father was a breach of an AVO. The charge was dismissed after contested hearing in which the mother gave evidence. It appears from that evidence that the mother had obtained another interim and ex parte AVO only a few days before this incident. It had not been served on the father and could not have been properly based on anything which had occurred since the last AVO. As the matter of contact was before the Family Court it should not have altered the father’s right of contact. A reading of the transcript of the AVO evidence makes it easy to understand why it was never converted into a final order.”
His Honour’s comments at paragraph 117 of his decision are also particularly noteworthy:
“[The mother’s] attitude to the father’s role in [X]’s life was, in my opinion, more accurately and clearly stated when, on [X]'s baptismal certificate from her Baptism at about 7 months of age, she caused the entry identified [X]’s father to be “father unknown”. I think there is a very real prospect that, it [X] does not have contact with the father, the mother will bring her up believing something like the entry on her that Baptismal certificate. After all, it is quite likely that [X] will want to see or resort to this certificate as she grows. It is not likely that the mother would tell her a story which is inconsistent with something she is represented to her own church. Thus [X] will either be raised believing she does not see the father because he has rejected her because of her illness, is violent and a danger to her and the mother or that the mother does not know who he is. Each is likely to discourage [X] from wanting to see him at an earlier age or from attempting to find him. This is important, because I regard the mother as set in her intent to isolate [X] from him that she is likely to take extreme steps to ensure he could not find her. Although she denied it when Mr Maurice put it to her, I think the mother will do what ever it takes to ensure the father does not see [X].”
In paragraphs 133 – 137 of his decision Cohen J states:
“133. I think the father is subject to outbursts of verbal abuse and very minor acts of physical aggression or violence when subjected to great provocation. I do not accept that he has habitually manhandled and bruised the mother as she belatedly claimed in cross examination, and earlier told Dr L, although she later failed to tell Dr Q. In cross examination, the mother's initial justification for saying that the father was in the habit of manhandling and bruising her was that she had suffered bruising when she tripped on the stairs.
134. As the mother and father are not likely to have to face one another, even if contact is ordered, I do not think there is any danger of [X] having to suffer from any aggressive act perpetrated against or words said to the mother provided, if there is an order for contact, the mother does not attempt to evade the intention of the orders. If she does, the father may well abuse her verbally if he gets the chance to speak to her. The power to avoid such a situation is as much in the mother’s hands as it is in the father’s. The prospect of such abuse is hardly a reason to deny contact.
135. The father is quite unlikely to cause [X] any physical harm. The mother, in cross examination, even conceded that one of the two allegations of physical abuse of [X] she made against the father was no more than the father having wrapped [X] in the way he had been taught to do so by staff at the hospital when she was born. The other allegation could not seriously be regarded as any worse than a misguided attempt to stop [X] suffocating on bathwater.
136. The mother is, in my assessment, likely to subject [X] to abuse. It would be abusive to [X] for the mother to continue to try and to undermine the good relationship [X] is entitled to have with the father and the good, or at least realistic image, she is likely to otherwise develop. I think she is quite likely to attempt to perpetrate both such acts of abuse on [X]. The most effective manner available to the Court to counteract such attempts would be to reduce her opportunity to such abuse by increasing [X]’s actual contact with the father.
137. A further barrier to [X]’s emotional health is likely to be the harm she was suffered by continuation of the mother’s overprotectiveness. I do not expect her to show any restraint in this aspect of the care of [X] such lack of restraint is abusive.”
I also note Mr Maurice highlighted some other relevant passages from his Honour’s judgment in his submissions.
Likelihood of orders being significantly varied
The Court must also consider whether there is a likelihood of the current parenting orders being varied in a significant way as a consequence of a new hearing.
The current parenting orders, referred to in summary form in paragraph 12 of this decision, are very comprehensive. Apart from dealing with the transitional arrangements to assist the parties and their child in facilitating the spend time arrangements, including the involvement and assistance of a senior registry-based family consultant, the orders presently provide for [X] to spend time with the father as follows:[46]
·during school terms each alternate weekend from after school on Fridays until the commencement of school the following Monday (but suspended on Mother’s Day from 9:00am to 5:30pm) and from 5:30pm to 7:30pm each Wednesday;
·the first half of each school term holidays from after school on the last day of term to 5:30pm on the last day of the first half of such holidays;
·the first half of the annual long summer school holidays in even-numbered years from after school on the last day of term to 5:30pm on the last day of the first half of such holidays (but suspended on Christmas Day in even-numbered years from 5:30pm to 5:30pm on Boxing Day);
·the second half of the annual long summer school holidays in odd-numbered years from 5:30pm on the last day of the first half of such holidays to 5:30pm on the last Friday of those holidays;
·on Christmas Day in odd-numbered years from 5:30pm to 5:30pm on Boxing Day; and
·unless already spending time, on Father’s Day from 9:00am to 5:30pm.
In addition, [X] is to communicate with the father by telephone when she is not otherwise in her father’s care each Tuesday and Thursday for not more than 15 minutes between 7:30pm and 8;00pm.
[46] See paragraphs 11 and 12 of the Orders made 30 June 2006.
His Honour also made orders[47] suspending the time [X] spends with the father on all occasions that [X] attends any hospital, doctor or other similar health care worker or is otherwise involved in school or extracurricular activities in which parents are ordinarily invited to attend.
[47] Ibid, paragraph 12.
In relation to obligations and restraints upon the parties, his Honour made the following orders:
“16. That the mother is hereby restrained from the listing to or recording or permitting others to listen to or record the said child's telephone conversations with the father or any part of them.
17. That the mother is hereby restrained from contacting or attempting to contact the said child directly or through others when the said child is having contact pursuant to the orders herein.
18. That the mother is hereby restrained from attending the said child's school at the time or at any time within two hours of the father collecting the said child from or delivering her to school.
19. That for the purpose of implementing the orders herein, the mother shall inform the father forthwith in writing of the address at which the said child resides, the address at which the mother resides and the telephone number by which the said child can be contacted for the purpose of implementing all telephone face to face contact orders herein and thereafter inform him forthwith in writing if there is any change in such address or addresses or telephone number of the new address, addresses and telephone number.
20. That each party shall forthwith and in writing inform the other of the time and date and place of any appointment made for the said child with any health care worker or the like or for admission of the child to hospital or of any observable change in the said child's medical symptoms or condition.
21. That the parties are hereby granted the joint right and the joint responsibility to make an implement decisions for the said child's future including for her long term care, welfare and development including but not limited to her medical and hospital care and schooling.
22. That the mother is hereby restrained from taking the said child out of Australia without the written consent of the father.
23. That the Australian Federal Police are hereby requested to forthwith place and retain the name of the said child on the watch list or lists kept by them at all places of exit from Australia.
24. That the father shall forthwith serve a copy of these orders upon the Australian Federal police.
25. That each party is hereby restrained from making derogatory remarks about or otherwise criticizing or disparaging the other to or in the presence or hearing of the said child and from permitting the said child to be in the presence or hearing of any person who is making derogatory remarks or otherwise criticizing or disparaging the other.”
In her present application, the mother is seeking final orders for sole parental responsibility and for [X] to spend time with the father “as may be agreed between the parties”. In the interim she is seeking orders for [X]’s time with the father to be supervised at the Central West Contact Service. The mother is also seeking the appointment of an independent children’s lawyer (“ICL”). No ICL was appointed in the previous proceedings before Cohen J.
The mother’s proposed sole parental responsibility order would require the Court being satisfied, not just that the existing order be discharged, but also that the presumption contained in s.61DA of the Act does not apply. That is, of course, the presumption that it is in the best interests of [X] for her parents to have equal shared parental responsibility. For the presumption not to apply, the Court would need to be satisfied that there are reasonable grounds to believe that there has been abuse of [X] or family violence.
In addition, under s.61DA(4), the presumption may be rebutted if its application could be contrary to [X]’s best interests, those interests being determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption is not applied or is rebutted then the Court must still make an order which is in the best interests of [X] (again taking into account the considerations in s.60CC of the Act).
The mother’s proposed spend time order is clearly unworkable in light of the evidence. The mother acknowledges this in paragraph 61 of her second affidavit where she states:
“… I again say that I think it is important that [X] have a meaningful relationship with the Respondent Father, and the only reason the Final Orders I seek in my Initiating Application say that [X] should spend time with the Respondent Father is agreed by us is because I simply do not know what appropriate new orders should be until the Court -- and more importantly, the ICL, intervenes in this matter and investigates what is causing this fear to be experienced by [X]. Once that is done, I will be in a position to define what the appropriate new orders might be.”
As to the proposed supervised order, there is no evidence before me as to the likely delay in obtaining a place at the Central West Contact Service or whether a different contact centre might be more beneficial to the parties who both live in the inner western suburbs of Sydney. The interim orders that I made on 10 June 2010, without objection by the parties, currently require supervision of [X]’s time with the father by either the paternal grandmother or the paternal aunt.
The timing of this dispute between the parties is most unfortunate and questionable given that it coincided with the commencement of the final phase of the spend time arrangements that would have seen [X] spend the first half of the April school holidays with the father for the first time.
I would agree with the father’s submissions that there are no reasonable grounds to believe that that there has been abuse of [X] or family violence. The evidence presented by the mother is largely without corroboration. While the evidence of Ms M tends to support the mother’s version of events as to what occurred on 19 May 2010, the context does not justify a conclusion of child abuse or family violence. It does vindicate, however, the views expressed by the trial judge that any contact between the parties should be minimised for [X]’s benefit.
The mother has, of course, alleged in paragraphs 15 and 16 of her second affidavit that the father has disregarded the interim supervision order. This is denied by the father, the paternal grandmother and the paternal aunt. If one assumes that [X]’s conversation with the mother, as stated in paragraph 15, is an accurate record of what was said, that is not conclusive evidence that [X]’s statements are true in fact. I would also agree with Mr Maurice’s submission that any disregard for the interim supervision order by the father so close to a contested hearing and given the previous history of this matter would be “inherently improbable”.[48]
[48] Applicant father’s Case Outline document page 9.
Consequently, having considered the evidence in light of the submissions I am not satisfied that the mother has established, on the balance of probabilities, that there has been a significant change of circumstances.
Potential detriment to the child
Lastly, if the Court is satisfied that there is a likelihood of the current parenting orders being varied, then the Court must also weigh the nature of the likely changes against the potential detriment to [X] caused by the litigation itself.
As stated above, I am not satisfied there has been a significant change of circumstances to justify a continuation of these proceedings by the mother. Had I been satisfied, I still would have had concerns in any event about the potential detriment to [X] of further parenting litigation between the parties. In this respect I refer to the recent referral by [X]’s school teacher to a school counsellor[49] noting inter alia that “[X] needs help and strategies to calmly handle her situation of being “shared parented”. I too share her teacher’s desire that the outcome of this school counselling referral should aim at returning [X] “to being her previous happy self and be able to cope with the parenting situation”.
[49] See Exhibit “AM1”.
Conclusion
I am satisfied that it was appropriate to consider this matter as a discreet threshold issue and I am further satisfied that the mother has failed to establish that there has been a significant change of circumstances.
Moreover, I find that the re-opening of this matter would be further damaging to [X], already vulnerable because of her medical condition and the continuing hostility in her parents’ relationship.
I therefore dismiss the mother’s initiating application. I will also discharge paragraphs 7 and 8 of the interim orders made 10 June 2010.
Given that the father has sought an order for costs on an indemnity basis, I will adjourn the matter to a convenient date to consider the parties’ submissions as to whether a costs order should be made, and if so, the basis upon which it should be made.
Lastly, there will be orders of the Court to reflect this decision.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 30 July 2010
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