Lafrentz & Maro
[2021] FedCFamC2F 303
•4 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lafrentz & Maro [2021] FedCFamC2F 303
File number(s): MLC 4844 of 2013 Judgment of: JUDGE HARLAND Date of judgment: 4 November 2021 Catchwords: FAMILY LAW – PARENTING – Rice & Asplund – whether or not there has been a significant change in circumstances – history of family violence – father’s significant criminal history including drug offences and robbery Legislation: Family Law Act 1975 (Cth) ss 60CC(2)(b), 60CC(3), 69ZN Cases cited: Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Rice & Asplund (1979) FLC 90-725
Shan & Prasad [2020] FamCAFC 189
Division: Division 2 Family Law Number of paragraphs: 58 Date of last submission/s: 13 October 2021 Date of hearing: 13 October 2021 Place: Melbourne Counsel for the Applicant: Mr Radich Solicitor for the Applicant: Hartleys Lawyers Counsel for the Respondent: Ms Monteiro Solicitor for the Respondent: Perisic Lawyers ORDERS
MLC 4844 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LAFRENTZ
Applicant
AND: MS MARO
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
4 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application filed on 12 February 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Lafrentz & Maro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
The father applies to discharge the final parenting orders made by consent on 28 May 2018 (“the 2018 final orders”). The mother raises Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) and says the father has not demonstrated that there has been a significant change of circumstances. She seeks that the father’s application be dismissed. The matter proceeded by way of oral argument at a threshold hearing on 13 October 2021.
The parties filed written submissions in advance of the hearing and helpfully provided a court book.
The father relied on the following documents:
(1)Affidavit of the father filed on 12 February 2021;
(2)Affidavit of the father filed on 13 September 2021.
The mother relied on the following documents:
(1)Affidavit of the mother filed on 17 March 2021;
(2)Family Report of Ms B dated 19 February 2018;
(3)Department of Families, Fairness & Housing (“DFFH”) response dated 23 April 2021;
(4)Affidavit of the father filed on 25 May 2018.
The family report of Ms B prepared for the earlier proceedings caused chambers to query whether or not the parties objected to my reading that report prior to oral argument. The parties provided their consent to my reading the family report.
I queried whether the father objected to his affidavit filed on 25 May 2018 being relied on by the mother, and counsel for the father indicated he did not hold instructions with respect to this. Further, counsel for the father did not raise an objection when the mother’s counsel referred to the affidavit in her oral submissions during the hearing.
Counsel spoke to their written submissions. Both sets of submissions discuss the legal principles applicable to their arguments. The mother’s counsel also tendered subpoenaed documents produced by Victoria Police, which is exhibit 1.
THE LAW
The principle referred to in Rice & Asplund is well-known. In that case, the Full Court of the Family Court of Australia had to consider what principles should apply when a court is faced with an application to change an earlier parenting order. Evatt CJ said the following:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order into the reasons for material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation… Change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that… there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
The trial Judge has discretion as to whether to consider the Rice & Asplund principle as a preliminary issue or after a full contested hearing. It is important to bear in mind that the rule in Rice & Asplund is merely a manifestation of the best interests’ principle.
In Marsden & Winch [2009] FamCAFC 152 (“Marsden & Winch”) the Full Court stated at paragraph 58:
Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
In Miller & Harrington (2008) FLC 93-383 the Full Court pointed out that section 69ZN of the Family Law Act 1975 (Cth) (“the Act”) requires the court to consider the impact of proceedings on children.
In the recent Full Court decision of Shan & Prasad [2020] FamCAFC 189, the court observed that when determining whether or not a change of circumstances has been established as a threshold issue, the Court must take the evidence at its highest.
BRIEF CHRONOLOGY
The parties were in a relationship from 2009 to 2013. There is one child of the relationship, X born in 2010. X is now 11 years old.
There have been two sets of final orders made previously, both of which were by consent. The first set of consent orders were made on 22 July 2014 and included both property and parenting orders. The orders provided for the parties to exercise equal shared parental responsibility, for X to live with the mother and spend substantial and significant time with the father.
The mother filed further proceedings in 2016, after an incident that occurred on 5 January 2016. X was with her father at his home when the police raided the father’s home and seized drugs and weapons. The father was arrested. The police called the mother to collect X. After the incident, X spent a few supervised visits with her father. The last visit was on 16 October 2016, 5 years ago.
The 2018 final orders provide for the mother to exercise sole parental responsibility, for X to live with the mother and to spend no time with the father. Those consent orders were made at the final hearing. The father was legally represented at the trial, however was in remand pending trial in the County Court of Victoria for offences including armed robbery. A family report had been prepared for the trial but as the father was on remand, the family consultant did not interview him. X was represented by an Independent Children’s Lawyer (“ICL”). The mother annexes the case outline prepared by the ICL for the 2018 proceedings and refers to the chronology outlined in that document.
HAS THERE BEEN A SIGNIFICANT CHANGE IN CIRCUMSTANCES?
Indeed, the father’s counsel set out in oral submissions that it would be appropriate for the Court to follow Marsden & Winch and consider what orders the Court could make on the current material, on the assumption that there are no orders in place for the purposes of that exercise.
The father seeks that all previous parenting orders be discharged. He seeks equal shared parental responsibility on an interim and final basis and seeks final orders for X to remain living with her mother but to spend substantial and significant time with him. In his interim orders sought, he seeks the appointment of an ICL and that he initially have supervised time with X at a contact centre.
In oral submissions his counsel also referred to family therapy and said that both of those factors provided protections against risk of harm to X and to the mother. He said the father has no interest in contacting the mother. I pointed out the apparent inconsistency, particularly with respect to his orders sought being equal shared parental responsibility. The father’s counsel referred to the fact that the time of the report prepared prior to the 2018 final orders, X was aged 7 and she is now 11 and it may be appropriate to order a Child Impact Report prior to determining the issue of the father’s time. He acknowledged that one option for the Court is to order such a report prior to determining the threshold issue.
Counsel put forward that when he consented to the 2018 final orders, he was on remand and faced a significant term of imprisonment. He says he thought he was facing a prison sentence of up to 8 years. If he had been incarcerated for that period X, would have been 16 years old the time of his release.
On 23 April 2019, the father pleaded guilty to a lesser charge and was sentenced to 15 months imprisonment, which he had already served by that time. He was released from prison on 23 April 2019. The father’s written submissions emphasise that it was a significant change of circumstances having been unable to advocate his case properly due to being in remand and impending incarceration. He claims the orders were framed with the 8 year sentence in mind.
The mother refutes the father’s claim that the consent orders were made in circumstances where it was anticipated that the father would be jailed for several years.
The father places some emphasis on the fact that the orders were made by consent, which means the evidence was not tested at a final hearing. Given the father was legally represented at the final hearing, there were other options available to him, such as requesting the matter be adjourned pending the outcome of his criminal proceedings the following year. This was a course he flagged in his 2018 affidavit.
Drug screens and counselling
In his written submissions and affidavits, the father places much emphasis on the drug screens he produced and counselling he has undergone. He says he is not associating with the same people and has the support of family. The father also argues that the risks can be mitigated by orders for therapeutic counselling, supervised time, drug screens and restraints. In his initiating application, the father seeks interim orders that he spend supervised time with X at C Contact Service and that an ICL be appointed.
The father produced a series of drug screens that he did voluntarily in March, April, June and July 2020 and annexes the results to his affidavit filed in February 2021. Many of the results indicate that they were not collected at an accredited laboratory nor is it clear that they were supervised drug screens. The mother’s counsel says that the father produced similar drug screens in previous proceedings, some of which are annexed to his 2018 affidavit. The ICL’s case outline annexed to the mother’s affidavit includes a chronology which refers to the father’s failure to comply with multiple requests for random drug screens.
She also refers to the lack of independent evidence as to the father’s sobriety, attendance at Narcotics Anonymous and attendance at drug and alcohol counselling. The mother’s counsel refers to the father producing drug screens and that whilst they show a negative result do not clearly show that they were supervised and at times, done so of the father’s choosing in circumstances where methamphetamine disappears from the system quickly. He had produced drug screens in 2018 in a similar manner.
I note that many of the drug screens are referred to as being random. However, these are drug screens voluntarily produced by the father not requested by another party. The father’s counsel submitted that an option for the Court is to order the father undergo hair follicle testing. It was open to the father to undergo such a test and annex it to his affidavit which could have shown an absence from methamphetamine for a period of months. It has to be remembered that the father has brought this application, arguing that there has been a significant change of circumstances and it was for him to produce any supporting evidence with respect to that.
Criminal offending and imprisonment
The father's criminal record demonstrates repeated offending primarily with respect to possessing and trafficking drugs over a number of years with several periods of incarceration. He has also been the perpetrator of family violence towards the mother, at times in front of X and his subsequent partner. The father acknowledges that his criminal offending is extensive but claims this is in the past and he has turned his life around. The section 60I certificate that he obtained is dated 4 June 2020. After that date, the father was incarcerated for a further period for his release in January 2021. The father brought this application just 4 weeks after his release from prison.
The father deposes to pleading guilty to dealing with proceeds of crime and handling stolen goods in 2020, being sentenced to 180 days imprisonment and a 12 month Community Corrections Order. He was released from prison in 2020, and refers to engaging in drug and alcohol counselling and participating in Narcotics Anonymous for the past 16 months. The Court Integrated Services Program Final Progress Report (“CISPFP report”) refers to the father reporting that he had been undergoing drug screens, however the CISPFP report did not cite them. Interestingly, the CISPFP report refers to the father stating he has access arrangements to spend time with his daughter but has not seen her for some time because of the intervention order and the mother not encouraging agreed access. If this is information provided by the father, it is inaccurate. The CISPFP report also records the father’s psychologist reporting that the father had not openly discussed family violence during their appointments. The father was living in a rental property with his partner. The mother’s counsel also points to the references in the CISPFP report to the father not consistently attending court mandated counselling. The father’s counsel said the CISPFP report is somewhat dated now, having been prepared on 22 April 2020. The difficulty with this submission is that it is the father who relies on the report to support a change of circumstances. The father filed a further affidavit annexing more drug screen results which do not appear to be supervised.
Evidence of rehabilitation
The father says in his affidavit of 12 February 2021 at paragraph 59, he is motivated to complete a men’s behavioural change program and parenting after separation program, “should the court find it appropriate” to attend the reunification program or such other program in an effort to rebuild his relationship with X.
The mother’s counsel draws attention to the fact that the father made very similar comments in his affidavit of 25 May 2018 at paragraphs 74 and 75. That point is well made. The language the father uses is significant as in both affidavits he speaks about being willing to do various things if the Court thinks it appropriate. The father says he is on a waitlist for a men’s behavioural change program in his September 2021 affidavit. The father deposes to his lack of involvement with the police since his final release (which is in fact incorrect) as well as his attendance at Narcotics Anonymous and drug and alcohol counselling. He says that he has taken employment courses to improve his prospects of obtaining work and being able to contribute to the financial maintenance of X. He says at the time the final 2018 orders were made, he was taking drugs, committing criminal activities and was not engaged in any form of counselling and was involved with the wrong people. In his 2018 affidavit he says he is no longer in a relationship with Ms D. It is a significant omission from his February 2021 affidavit that he does not disclose that he resumed his relationship with Ms D. The CISPFP report refers to the father reporting that he was not in a relationship with Ms D.
In his written submissions at paragraph 10, the father’s counsel says that historically X had a positive and loving relationship with the father, the paternal grandparents and extended paternal family. The father simply makes these assertions in a sentence. It appears to be assumed that X had a positive and loving relationship with her father as if that is an automatic feature of all parent-child relationships. The father asserts that has supports from his extended family but again provides no evidence. He does not provide any detail as to his family’s involvement with him and indeed their knowledge of his history. He asserts that his family members are willing to supervise if required, but does not even name those family members and does not provide any supporting affidavits from his family members.
The father also refers to joining Fellowship Narcotics Anonymous whilst in prison. After his release from prison, he says he completed a comprehensive alcohol and drug assessment on 28 January 2020 and says he underwent drug and alcohol counselling. This was part of the court ordered treatment as evidenced by the CISPFP report. The father does not produce any recent reports from a psychologist or counsellor and does not provide any detail as to how these interventions have assisted him to turn his life around. This is significant as the Victoria Police records produced as exhibit 1 show that there have been previous referrals for counselling and other rehabilitative interventions as parts of previous sentences and corrections orders that predate the final 2018 orders.
Counsel for the mother submitted that it is significant the father simply refers to pleading guilty to handling stolen goods and does not provide any further context or information to the Court with respect to his most recent period of imprisonment. Furthermore, it is simply inaccurate to refer to the concerns about family violence, being only historical. It is of significant concern that the police records refer to several incidents of violence between the father and Ms D. The police records refer to them being in an on-again and off-again relationship with her for several years.
Counsel for the mother submits that the reason for referring to the father’s 2018 affidavit was to demonstrate how the father had made similar promises in the earlier proceedings. The DFFH response refers to the Family Violence Unit Victoria Police becoming involved in charging the father with 3 threats to kill the mother, having unregistered firearms and numerous breaches of intervention orders. The DFFH response refers to the father’s arrest, when X was at home and also refers to the father’s partner being known to DFFH and police.
Ms D is also well known to police for offences relating to drugs. The father says at paragraph 56 of his 2018 affidavit that he has made changes to remove himself from associating with negative influences, people and situations. He states that he is no longer in a relationship with Ms D and refers to the support his is receiving respect to his drug use. Those statements are very similar to his 2021 affidavits. The CISPFP report shows that the father was still in a relationship with Ms D.
There was an incident of family violence between the father and Ms D on 21 April 2021. The police applied for a family violence safety notice protecting Ms D and her son. The police summary refers to Ms D expressing concern about the father becoming aggressive when he takes drugs.
There is a further incident on 22 August 2021 where the father threw a shoe at Ms D. In October 2021 he was charged by police with unlawful assault and breach of intervention order.
Paragraphs 10 and 11 of the father’s September 2021 affidavit are significant and I set those out in full:
Since being released from prison on a final basis I have not reoffended or had any involvement with Victoria Police. I have continually attended appointments with my corrections officer, noting that I am compliant and have had no further involvement with police.
I do not have any pending charges or investigations on foot in relation to any alleged offending.
The father was aware when swearing that affidavit that such statements referred to above were not true. It is significant and highly concerning that he does not disclose those further interactions with police in April 2021 and September 2021. The mother’s counsel also pointed out that the father’s counsel did not raise in his oral submissions the fact that the father is now facing charges.
Family violence
I raised with the father’s counsel during his oral submissions that it is also concerning the father’s application seeks equal shared parental responsibility with the mother on an interim and final basis. This is inconsistent with the oral submissions that the father has no interest in having any communication with the mother and that there is little risk of family violence due to an intervention order in place. The fact that he seeks equal shared parental responsibility, particularly on an interim basis ignores the seriousness of the family violence history as well as the risks. This is further underscored by the father’s notice of risk which I also raised with his counsel. The notice of risk is a detailed form and it clearly refers to past risk as well as current.
The father’s notice of risk is significant for what it does not say. The father does not identify any issues of risk. With respect to part D, which addresses family violence of risk of family violence, the father indicates that he alleges that no one, being himself, the mother or X has experienced family violence and is at risk of any family violence. He answers the question about whether or not the child has suffered serious psychological harm resulting from experiencing family violence directly or indirectly as “no”. He discloses the final family violence intervention order made by the Magistrates Court of Victoria at City E on 28 June 2019.
Part E of the Notice of Risk addresses drunk alcohol substance misuse. Question 21 is phrased as follows “do you allege that drug, alcohol or substance misuse by you, or the other parent, or a party to the proceedings, has caused harm or poses a risk of harm to the child?” Significantly, the father marks this as “no” even though the question is clearly asking about past misuse and harm resulting from that, as well as current risks. Part I of the notice of risk form provides another opportunity to provide brief description of alleged abuse, neglect or family violence or risks posed by substance misuse, and also provides for a brief description of what action “if any” was taken and by whom. There was a clear opportunity in this form to acknowledge the previous harm and to state how it has been addressed.
Counsel also says that with respect to the risks of harm identified by section 60CC(2)(b), those issues can be mitigated through orders such as therapeutic counselling, supervised time, drug screens and restraints and also says that X is at an age where she can self-protect and self-report. He says she should be afforded the opportunity to express her views.
The submissions go on to refer to the fact that the orders do not provide the father with an opportunity to be involved in the decision-making for X’s well-being and to spend time and communicate with her. He refers to his willingness to travel to the area where the mother and X reside and undergo therapeutic counselling and/or supervised time and says he acknowledges he would need to move closer to the mother’s residence in order to spend time with X. The father does not know the mother and X’s address. The father continues to go through the section 60CC(3) factors in his written submissions and says that historically the father has been able to meet X’s physical, emotional, intellectual and medical needs. Again, there is no evidence with respect to this and I wonder if it is supposed to be implied by mere fact of him being a parent. Certainly it could be said that the first set of orders provided for the parents to exercise equal shared parental responsibility and for him to spend substantial and significant time with X. This is also apparent from the mother’s evidence and also the DFFH response and the family report prepared in 2018 (accepting that it was limited in that it did not involve the father) refer to significant risks not only with respect to the father’s drug use and criminal activity, but also significant family violence, dating back to 2013. In his affidavits, the father makes vague statements about having changed and turned his life around but does not make any attempt to show an understanding or insight of the impact of his behaviour on X or the mother. This, together with the inaccuracy and omissions in the father’s evidence, only heightens the concerns emphasised by the mother’s counsel and undermines the father’s argument that there has been a significant change of circumstances since the 2018 final orders were made.
With respect to the father’s attitude to the child and responsibilities of parenthood, he says he is remorseful for the pain caused to the mother and X as a result of his behaviour. The father says that “since his release on a final basis. He has had no further involvement with police, remains drug free and is engaging with counselling supports” to improve himself and to give him the opportunity to fulfil his role as a parent. Again this submission lacks substance with respect to the supports he has and is inaccurate with respect to his involvement with police.
He addresses the final intervention order made on 18 March 2019, for a period of 10 years by commenting that at the time of the order, he was incarcerated and consented to the final order without admitting to the allegations of the mother.
The mother refers to there being a significant history of family violence. She refers to the DFFH response and also summarises a series of violent incidents which includes the father choking her, assaulting her and threatening to kill her. X was present for some of these incidents.
Since they separated the mother has taken out a series of IVOS against the father. Most recently she took out an IVO against the father on 28 June 2019 which expires in 10 years’ time.
The mother draws attention to the family report prepared on 19 February 2018, specifically paragraph 50:
The father’s parenting capacity is unknown, other than he has a history of family violence, breach of intervention orders, drugs and firearms related convictions and periods of unavailability to parent while he is incarcerated. His persistent flouting of the law over a number of years and in particular, breaches of intervention orders suggests he would be a reckless and unreliable parent.
The mother also refers to the father’s partner Ms D who is mentioned in the DFFH records with respect to concerns about the father being physically abusive to her, and Ms D also using drugs. She notes that the father refers to being a relationship with her in his February 2021 affidavit filed with his initiating application. His September 2021 affidavit is silent with respect to Ms D. The mother says there were also risk concerns with respect to Ms D’s own child and that she does not know if those risks have been addressed.
The mother says that the father had previously made claims to changing his behaviours through drug rehabilitation in the previous proceedings. The mother says X was traumatised by the January 2016 incident and her other experiences of the father’s violence and needed help with anxiety and nightmares. She received counselling. She is now well settled and doing well at school. When making enquiries in 2016 with X’s school, the school had no concern about X’s presentation and there were no protective concerns with respect to the mother.
X was 8 years old at the time she was interviewed by the report writer. She did not want to see her father. The mother says that X was traumatised by the police raid and the physical and verbal abuse she witnessed by the father towards the mother. X was highly anxious, she was experiencing night terrors and suffering regularly from stomach pains.
She says X is now doing well and is adamant that she does not want to see or talk about the father. The mother is concerned about X being further traumatised by being interviewed and involved in further court proceedings. The mother’s concerns are legitimate and are relevant to the consideration of the impact of further proceedings on X.
The mother also expresses her own fears and feels that the father is using proceedings to intimidate and harass her.
CONCLUSION
The father has failed to demonstrate a significant change of circumstances. It is important to note that it was entirely in the father’s control what evidence to place before the Court. He was well aware of the risk issues the mother raises and significantly has had further opportunity to put on further evidence and in fact did so. Having considered all of the material before me, rather than the father’s evidence supporting a significant change of circumstances, his evidence shows the same pattern of making declarations as to changes he has made in his life without providing supporting evidence.
It is necessary to consider what he has demonstrated in his affidavit material, particularly in light of the mother’s submissions contrary to this, that what the father has in fact demonstrated is a repeat of making empty promises that he made in the 2018 proceedings and a failure to provide supporting independent evidence.
The father’s court material is significant for what it does not say as well as what it says. I am not satisfied that the father has established that there has been a significant change in circumstances since the 2018 orders were made. To the contrary, there are real concerns that the father remains involved in violent behaviour and there is a risk of reoffending with respect to drug use and criminal behaviour. The father has not established a change of circumstances since the 2018 final orders based on his omissions and inaccuracies in his own evidence. Rather the risk issues remain live and highly troubling. It is unlikely that different orders would be made. I note a significant absence of evidence supporting the father’s assertions that he has changed, being assertions that echoes assertions he made in 2018. Consequently, it would not be appropriate to subject X to interviews with a Court Child Expert and also to further proceedings which may likely have resulted in detrimental impacts on both the mother and X. For these reasons I dismiss the father’s application.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 4 November 2021
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