Lancet and Deaves
[2011] FMCAfam 304
•11 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANCET & DEAVES | [2011] FMCAfam 304 |
| FAMILY LAW – Parenting – application to set aside final parenting orders – where final parenting orders do not provide for father to spend time with or communicate with children – where father was imprisoned at the time of the making of the final orders for serious assault in former matrimonial home – where father has since been released from prison and completed period of parole – consideration of principles in Rice & Asplund (1979) FLC 90-725 and subsequent cases – whether father has established that there has been a change of circumstances. |
| Family Law Act 1975 (Cth) |
| Hogan (1986) FLC 91-704 I & I (No.2) (1996) FLC 92-625 Kelly & Kelly (No.2) (1981) FLC 91-108 Marsden and Winch (2009) FamCAFC 152 Miller & Harrington (2008) FLC 93-383 Penfold (1980) FLC 90-800 Re David (Costs) (1998) FLC 92-809 Reid & Lynch (2010) FamCAFC 184 Rice and Asplund (1979) FLC 90-725 SPS and PLS (2008) FLC 93-363 |
| Applicant: | MR LANCET |
| Respondent: | MS DEAVES |
| File Number: | MLC 1286 of 2007 |
| Judgment of: | Walters FM |
| Hearing date: | 11 March 2011 |
| Date of Last Submission: | 11 March 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 11 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thomas |
| Solicitors for the Applicant: | Cahill & Rowe Family Law |
| Counsel for the Respondent: | Mr Curtain |
| Solicitors for the Respondent: | Vicki Sweet Family Law |
ORDERS
The father’s application filed 24 January 2011 be dismissed.
The father pay the mother’s costs fixed in the sum of $2000.00 – such costs to be paid by not later than 11 September 2011.
IT IS NOTED that publication of this judgment under the pseudonym Lancet & Deaves is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1286 of 2007
| MR LANCET |
Applicant
And
| MS DEAVES |
Respondent
REASONS FOR JUDGMENT
(Partly ex tempore – where indicated)
Preamble/background
These proceedings concern the parties’ children, [X], [Y] and [Z] – aged 12, 10 and 8 respectively. Currently, the father neither sees nor communicates with them.
The parties commenced cohabitation (and married) in May 1997. They separated in June 2006. They have been involved in litigation from shortly after the date of separation. The history of litigation is set out in paragraph 6 of the mother's affidavit sworn 4 March 2011.
On 12 December 2008, orders were made – by consent – to the effect that the children live with the mother and that she have sole parental responsibility for them. Other orders were made (although not by consent) on that day, including an order that the father pay the mother's costs fixed at more than $19,750. I shall refer to the orders made on 12 December 2008 as "the Final Orders".
The Final Orders did not provide for the father to either spend time or communicate with the children. The reasons for that omission are discussed below.
The Final Orders were made by Federal Magistrate Riethmuller sitting on circuit in Ballarat. At the time, the mother was represented by Mr Curtain of counsel and the father was self represented. An independent children's lawyer had been appointed, and was represented when the Final Orders were made.
The father appeared by telephone at the time of the making of the Final Orders. He did not appear personally because he was in gaol. In August 2008, he had been convicted of aggravated burglary and recklessly causing injury. In September 2008, he had been sentenced to imprisonment for a period of two years, with a non-parole period of 10 months.
The father was imprisoned from September 2008 to July 2009. After release, he was on parole for a period of 14 months.
The offences of which the father was convicted in August 2008 arose out of an extremely ugly incident which occurred in April 2008 ("the Incident"). The father described the Incident as follows:[1]
At approximately 1 a.m. on 20 April 2008, I was outside my wife's home and observed her with a male friend. I looked through the lounge room and saw the wife kissing a male person who I did not know. I was shocked when I saw the wife because I believed that there was a possibility that the wife and I might reconcile. I broke through the window with an axe.
[1] See paragraph 9 of the father's affidavit sworn 19 January 2011.
The mother described the Incident in more detail:[2]
At approximately 1 a.m. on 20 April 2008, I was in the lounge room of my home watching a movie with a friend when I heard the living room window smash and saw the husband coming through the window with what I believed to be an axe. It transpires it was a wood splitter. My friend did not know who the husband was and tried to disarm him. I grabbed the phone from the kitchen and ran outside to call the police. The husband chased me. I sought assistance from a neighbour. The neighbours pushed me through the front door of their home while they restrained the husband. I believe that the husband eventually broke free and absconded. When the husband fled, no one knew where he had gone. I feared for the welfare of the children, (but) my neighbours insisted that I remain in their home for fear that the husband would return and again pursue me. My friend therefore ran to the house to check the children and in so doing left a trail of blood the length of the passageway which was seen by the children. When I returned to the home, all children were up and distressed. They had all been in bed asleep when the husband smashed the window and entered the house. They woke to the sound of smashing glass, yelling and screaming. The struggle between the husband and my friend for the wood splitter occurred outside [Z]'s bedroom door. [Z] was aged five at the time. ...
[2] See paragraph 6(f) of the mother's affidavit sworn 4 March 2011.
This was not the first time that the father had behaved in an aggressive, violent or intimidatory manner towards the mother.[3] The father conceded that the mother obtained an intervention order against him, and that he breached the intervention order on a number of occasions. He said:[4]
In December 2007 I was charged with 11 breaches of the intervention order. I pleaded guilty to seven of the breaches. I was convicted and fined $500.
[3] See, for example, the history outlined in the mother's affidavit sworn 22 May 2008, which is referred to and affirmed in paragraph 6(a) of the mother's affidavit sworn 4 March 2011.
[4] See paragraph 8 of the father's affidavit sworn 19 January 2011.
The father asserted that he is "deeply ashamed" of his conduct during the Incident.[5]
[5] See paragraph 10 of the father's affidavit sworn 19 January 2011.
According to the father, he did not attempt to have contact with the children after his release from prison, and until the completion of the parole period, "upon the advice of my then solicitor".[6]
[6] See paragraph 19 of the father's affidavit sworn 19 January 2011.
On 24 January 2011, the father filed an initiating application in this Court. He sought final orders to the following effect:
a)All previous parenting orders be discharged.
b)The children live with the mother.
c)The children spend time and communicate with the father "as determined appropriate by the Court".
d)The parties have "joint parental responsibility" regarding major long-term issues arising in relation to the children.
e)Such further or other orders as might be deemed appropriate by the Court.
The father also sought interim and procedural orders, including:
a)an order to the effect that he spend time and communicate with the children at a Contact Centre for two hours per fortnight, and by telephone each Wednesday evening;
b)orders for the appointment of an independent children's lawyer and the preparation of a family report; and
c)an order (identical to the final order sought in the same application) to the effect that the parties have "joint parental responsibility" regarding major long-term issues arising in relation to the children.
The mother filed a response on 7 March 2011. In it, she sought orders to the effect that the father's application (for both interim and final orders) be dismissed and that the father pay her costs.
The proceedings first came before me in a busy duty list on 8 March 2011. I was advised by Mr Curtain (counsel for the mother) that he wished to present submissions to the effect that the father's application should be dismissed ab initio (as it were), in accordance with the well-known principles stated in Rice and Asplund (1979) FLC 90-725, and in the line of cases that have followed that decision. Mr Thomas (counsel for the father) indicated that Mr Curtain’s application would be opposed.
Given that Mr Curtain’s application could not be conveniently dealt with in the duty list, it was stood over to 2:15 p.m. on 11 March 2011. It was eventually heard shortly after 3 p.m. on that day.
After hearing the submissions made by Mr Curtain and Mr Thomas, and in the course of delivering brief, ex tempore reasons on 11 March 2011, I said:
I am not satisfied that there is a prima facie case of changed circumstances in the context of this case. I know that the requirements of the line of cases commencing with Rice & Asplund is far broader than that – and in due course (and if I am required to do so) I will give more detailed reasons for the decision that I have reached – but it is fair that I tell the parties at an early stage what my view is.
My "more detailed reasons" are contained in this Judgment. My actual, short form decision (as delivered on 11 March 2011, although revised to repair formal or grammatical errors or awkward phraseology) is set out below, under the heading "Ex tempore Reasons".
The Law
The primary judgment in Rice and Asplund was that of Evatt CJ (with whom the other two members of the Full Court agreed). Her Honour said:[7]
The principles which, in my view, should apply in (cases where an application is made to vary a previous parenting order) are that the court should have regard to any earlier order and to the reasons for and the 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 for 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 ... These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. ... While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard. (Emphasis added.)
[7] At pages 78,905-6
In his submissions, Mr Curtain referred to the summary of the above principles in Marsden and Winch (2009) FamCAFC 152, at paragraph 58 (and by necessary inference, paragraph 57):
57. In Miller & Harrington (2008) FLC 93-383 the Court posed the question:
... the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
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.
Although Mr Curtain referred to the summary of the "rule" in paragraphs 57 and 58 of Marsden and Winch, it seems to me that the following paragraphs of the Full Court's decision are also of significance:
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 & Asplund and ... it is founded on the notion that continuous litigation over the child or children is not generally in their interests. ...
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:
· The past circumstances, including the reasons for the decision and the evidence upon which it was based.
· Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
· 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. (Emphasis added.)
In SPS and PLS (2008) FLC 93-363, Warnick J had said:
47. The (“rule” in Rice & Asplund) is long established – nearly thirty years now in this jurisdiction – and was alive well before that in similar jurisdictions, and so, one might think, is in little need of discussion. But sometimes familiarity and repetitive usage may abrade the subtleties of a principle or expose those not originally appreciated.
48. In my view, reflection on the rule shows that:
1) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
...
3) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
...
5) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order ...
The "rule" was recently reconsidered by the Full Court in Reid & Lynch (2010) FamCAFC 184. O’Ryan J (with whom Finn and Strickland JJ agreed) discussed the history and context of the "rule" in detail, and summarised its application as follows:[8]
... a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment. In dealing with such an application, the court must be satisfied that there is some changed circumstances which will justify such a serious step or some new factor arising or some factor which was not disclosed at the previous hearing which would have been material ...
[8] see paragraph 238
O’Ryan J also cited (seemingly with approval) the comment by Warnick J. in SPS & PLS to the effect that the application of the "rule" is "closely connected with the nature and degree of change sought to the earlier order".[9] In addition, his Honour discussed the procedures associated with the making of consent orders in both the Family Court of Australia and the Federal Magistrates Court, and the effect of such orders. Clearly, when no attack has been mounted on the validity of consent parenting orders, and where such orders have not been appealed, any court which is later required to consider whether or not to discharge, vary or suspend such orders is entitled to assume that they were properly made and that, in the process of making them, the relevant judicial officer considered that they were in the best interests of the children.
[9] see paragraph 239
The Krum report
During the course of his submissions, Mr Curtain referred to and quoted from a family report prepared by Dr Krum, (who is a clinical and forensic psychologist). The report is dated 10 June 2008. I shall refer to it as "the Krum report".
Mr Curtain provided me with a copy of the Krum report. Mr Thomas did not object to the Court receiving the report and relying on it.
Mr Curtain referred to the following passages from the Krum report:
a)At page 13:
It is reasonably clear that (the father's) psychological treatment is focused on the ongoing issues that he has about the end of the relationship, and also (the Incident). He described having a recurring mental picture of what occurred. He stated that he needs to dispel these pictures, and that when the pictures come up, he has to address them and has to remind himself that they do not have a relationship. It appeared that he was struggling with this issue. He seemed somewhat ambivalent that the relationship is over. In this, it appeared that he remains quite emotionally connected to the relationship. He described seeing (the mother) with the other male as the most traumatic thing that he has experienced, and it appeared that this continues to play on his mind.
b)At page 14:
... (The father) has also been alcohol free from his own self report over the last five weeks. As indicated, there is evidence of ruminations, and obsessive thinking about his ex partner. He appeared to be in a pathological grief reaction, with the focus on the relationship. He feels that he has got the issue out of his system, despite the fact that this did not appear to be the case. (Emphasis added.)
c)At page 15:
... (The) current evaluation indicated that (the father) continues to have unresolved issues in relation to his wife. It would appear that he is in the early phases of resolving this issue, as he is able to articulate that he needs to move on and resolve the relationship in his own mind, although it would appear that he is having difficulties doing so. For this reason, it remains somewhat uncertain what his future behaviour would be. ...
Under the heading "Conclusions", Dr Krum wrote:[10]
... (Based) on the current evaluation, (the father) continues to have significant problems with unresolved issues in relation to the mother. It is likely that his personality difficulties have led to him ultimately stalking the mother and based on the current evaluation, these issues have not been fully resolved. It is likely that his alcohol abuse has interacted with his personality difficulties, and as such, any reduction in his alcohol abuse will reduce the likelihood of further incidents of stalking.
The current evaluation indicated (that the father) remains at risk for this stalking behaviour. It is unlikely, in my opinion, that psychological treatment with a clinician without specific experience in this area will be sufficient for him. He requires treatment with a clinician with specific expertise in dealing with issues relating to stalking. ... (Emphasis added.)
[10] see the Krum report at page 17
The Final Orders were made some six months after the Krum report.
The Page report
As explained in my ex tempore Reasons, the father deposed to attending upon Mr Page (clinical psychologist and psychoanalyst) to assist him with not seeing his children and to help him deal with his past behaviour. The father also said:
Mr Page has not recommended that I require any further treatment, medication or counselling. My solicitor has requested a report from Mr Page which will be made available to this court.
Obviously, and as conceded by Mr Thomas during the course of his submissions, the father's affidavit had been prepared before Mr Page's report became available.
The report is dated 7 February 2011. It is attached to an affidavit sworn by Mr Page on 2 March 2011. I shall refer to it as "the Page report".
The Page report is troubling. I refer, in particular, to the following passages:
(The father) noted that he was tormented by being unable to stop thinking about his children and was grief struck by their absence from his life. It was clear that this tendency to rumination was impacting significantly upon his capacity for work where he noted his capacity to concentrate had diminished somewhat.
Two methods appear to have been favoured by (the father) in his attempts to curb his ruminations about his children and the grief that this has caused him. The first of these, which continues to serve him, is to attempt to tire himself through work such as to then find solace in sleep. The second method, less favoured currently, has been the excessive use of alcohol. Once again, (the father) reports that alcohol has been his recourse in order to find some respite from the torment of his depressive thoughts.At the time of his appointments with me (the father) reported that he was abstaining from alcohol use during the week, only been inclined to in by the socially on weekends. ...
In summary, (the father) presented as an intelligent man and insightful man with what would appear to be a long standing depressive illness associated with significant self-doubt and poor self-esteem at times compound by alcohol use. Times of stability and good functioning have been those which have been characterised by a strong sense of family and relationship which have assisted with regard to otherwise strong sense of poor self-worth (sic). Relatively recent difficulties in the marital relationship contributed to a certain deterioration in (the father's) functioning. It is likely that (the father) may have experienced his ex-wife's own self development and renewed forays into the world as threatening to the fragile sense of self he had managed to forge through developing and continuing to address himself to the idea of the integrity of family. The failure of this ideal through the demise of his marriage and then the lack of access to his children would appear to have sent (the father) catapulting into a state of agitation and depression.
An important marker of (the father's) progress with these issues has been his increasing capacity to mourn the loss of his marriage. At his last appointment (the father) gave clear indication of a degree of acceptance of the fall of his ideals in regard to the institution of marriage. To that end, (the father) had been able to separate the nature and difficulties in his relationship with his ex-wife from his relationship with his children. (The father's) persistent wish to have contact with his children is at this point driven by the importance of exercising his function as their father and enjoying his children; the feelings in regard to whom exist as clearly separate to the bitterness and confusion which has characterised his relationship with his ex-wife. He has indicated that he wishes to have continuing therapy in order to navigate a course through the current situation in order to afford his children the love he feels for them and the support which they are entitled to. (Emphasis added.)
Clearly, the Page report does not comprise a ringing endorsement of the father's current psychological and emotional state. It certainly does not support the father's suggestion that he no longer requires any further treatment, medication or counselling. Indeed, it is very apparent that the father is sorely in need of "continuing therapy" (to use the description employed in the Page report).
I note, as well, that the Page report:
a)approaches all issues solely from the father's point of view (and not from the point of view of the children’s best interests);
b)makes no mention of the Incident, or its effect on the mother and the children;
c)makes no mention of the Krum report, and does not suggest that the father has received psychological treatment with a clinician with specific expertise in dealing with issues relating to stalking (as Dr Krum recommended);
d)suggests that the father's use of alcohol remains a problem, much as it was at the time of the preparation of the Krum report;
e)refers to the father's "increasing capacity to mourn the loss of his marriage" as no more than "an important marker" of the father's progress in dealing with the serious issues that affect him, and further qualifies the conditional, limited or temporary elements of such expressions by stating that it was seemingly only at the father's last appointment with Mr Page that he gave a clear indication of "a degree of acceptance" of the fall of his ideals in regard to the institution of marriage; and
f)confirms that the father's bitterness and resentment towards the mother appears to be ongoing.
The mother's response
In her affidavit sworn 4 March 2011, the mother deposed as follows:
a)The children suffered greatly as a result of the Incident. The manner in which the Incident and subsequent events have affected them is described in paragraphs 8 to 17 of the affidavit.
b)The children had counselling "for something less than a year" following the Incident, but the mother continued with counselling for a lengthier period.
c)The prospect of further court proceedings has caused the mother "great distress". After the Incident, she suffered nightmares. These have now returned. She describes them as follows:
I dream that I am asleep and wake up to find (the father) standing in my room. I also dream that I can’t wake up in time and that I am going to die at the hands of (the father). I have on occasions woken up screaming which is distressing for the children.
d)As a result of the father's behaviour, she has experienced "a loss of hope" and "a general state of anxiety which affects (her) work, social and private lives". She adds the following description:
I had trouble spending time in the house alone even during the day. I sometimes feel like I am being watched, I withdraw in the face of aggression and am particularly affected by the sound of breaking glass. I sleep badly but am too afraid to take sleeping tablets in case I don’t wake up in the event of an intrusion.
e)She "has no doubt" that a resumption of the relationship between the children and the father will cause severe trauma to them and to her, and that such a resumption will impact on her parenting and her general well-being. She has "no confidence that (the father) has acquired insight as to the gravity of his actions, or an appreciation of the impact of his behaviour upon the feelings and ability of the children and (the mother) to trust."
Annexed to the mother's affidavit is a report from a psychologist, Ms W. No objection to the report was raised during the course of the hearing.
The mother has been seeing Ms W since 2007 (although she saw another person in 2008 and 2009 while Ms W was on maternity leave).
After detailing the mother's symptoms, as described by the mother at an appointment in mid February 2011, Ms W concluded that the mother's symptoms are "consistent with a diagnosis of Post Traumatic Stress Disorder with secondary symptoms of Major Depression – moderate type". She continued:
Given the pattern of symptoms that has occurred in the past, it is reasonable to assume that (the mother) will experience a heightened level of psychological symptomatology for the length of time that she is forced to engage with (the father) for the purpose of legal proceedings. Whilst her symptoms never completely abate between proceedings, with (the mother) always experiencing some degree of trauma related symptoms and mood (i.e. depressive and anxiety related symptoms), based on both the history of her symptomatology and this current episode, it is clear that forced exposure to (the father) via legal proceedings causes (the mother) an unacceptably high level of anxiety and trauma. This impacts on her ability to engage in activities of daily living, such as the care of children, care of her housework, care of herself, as well as her ability to engage appropriately in her paid employment. ... (Emphasis added.)
The father’s case is based primarily on his own needs
I am conscious that neither the mother's nor Ms W's evidence has been tested. The fact of the matter is, however, that the father has not suggested that the mother would not be traumatised by the prospect of either further litigation relating to parenting issues or the children actually spending time with him. Nor has the father suggested that the children have the capacity to cope (psychologically, emotionally or otherwise) with some form of reintroduction of contact with him. Indeed, the father deposed as follows:
23. I understand (the mother's) reluctance to allow me to have contact with my children. I understand fully how distressing the conduct that led to my imprisonment would have been to her. However, I need to see my children and believe that it is in my children's best interests that they have a relationship with me.
...
28. I have taken full responsibility for my previous behaviour. I accept it has been distressing to both (the mother) and my children. I do however dearly wish to re-establish my relationship with my children and to spend time and to have contact with them. I believe it is in their interest to have contact with me. I appreciate that I will have to have limited and most probably supervised contact with the children at least initially. ...
In all the circumstances, to speculate about issues such as whether the father's case should be taken "at its highest" at this stage is academic. In my opinion, the father's case is based on his own needs, and not those of the children. Put another way, even if the father's evidence were to be accepted, any relevant change of circumstances could only be regarded as a change of his own circumstances (and not a change of the circumstances in which the mother and the children find themselves).
In Marsden & Winch, the Full Court spoke of "a certain class of case" where findings have been made leading to a conclusion that a parent should not spend time with his or her children.[11] Their Honours continued:
Usually the reason for such Draconian orders has been a finding about particular behaviour of a party, by reason of which it would be contrary to the child's interest to allow face-to-face contact. Once made, those findings will stand and the changes asserted will usually be the passage of time and/or some amelioration in the underlying causes of the behaviour, such that it is unlikely to occur in the future.
[11] see paragraph 59 of Marsden & Winch
In the present case, the Final Orders were made by consent, but their effect is clear. Further, very strong evidence contraindicating any contact between the father and the children was available to the Court at the time the Final Orders were made. Even so, the father's case does not rely on the passage of time as comprising a sufficient change of circumstances to justify embarking upon a fresh hearing; the asserted change of circumstances comprises the father's release from incarceration and "some amelioration in the underlying causes of the (father's previous) behaviour, such that it is unlikely to occur in the future". Unfortunately for the father, however, and as indicated in the ex tempore Reasons set out below, the father has wholly failed to demonstrate (whatever the relevant test might be) that such amelioration has actually occurred and that his behaviour is unlikely to be repeated. The "underlying causes" of the father's previous behaviour clearly and inevitably had their genesis in the father's dangerously bitter, possessive, and judgemental attitude to the mother. The evidence currently available to the Court – even ignoring the evidence presented by the mother – reveals that that attitude remains, and that the father is struggling (apparently unsuccessfully) to change it.
The best interests of the children, degree of change and other factors
As recorded in the ex tempore Reasons set out below, I find that it is not in the best interests of the children to allow the proceedings to progress beyond this point. Indeed, it would be demonstrably contrary to the best interests of the children if the Court were to decide to embark upon the litigation contemplated by the father. No prima facie case of changed circumstances beyond the mere fact of the father having now completed his term of imprisonment and parole has been established, and that transition alone does not comprise a sufficient change of circumstances to justify embarking on a hearing.
Having regard to the terms of the Final Orders, the father's application seeks a very significant change. Not only does the father seek to spend time and communicate with the children (including on an interim basis), but he also seeks (on the papers, at least) "joint parental responsibility" regarding major long-term issues arising in relation to the children – which I interpret to mean that he seeks equal shared parental responsibility for the children.
Clearly, any suggestion of a presumption of equal shared parental responsibility has been rebutted by the father's violent and antisocial behaviour. In my opinion, the father has no chance whatsoever of demonstrating to the Court it is in the best interests of the children for the parties to have equal shared parental responsibility.
In concluding that it would be demonstrably contrary to the best interests of the children if the Court were to decide to embark upon the litigation contemplated by the father, and as the ex tempore Reasons set out below confirm, I have taken into account the parties’ past circumstances and the evidence provided to me about the father's behaviour leading up to, during and after the Incident – as well as the evidence presented by the father and Mr Page relating to the asserted change in the father's attitude (to the mother and generally). The bottom line, as it were, is that, in my opinion, there is no (or no reasonable) likelihood of the Final Orders being varied (or being varied in a significant way) as a result of a new hearing.
Ex tempore Reasons (delivered on 11 March 2011)
The following paragraphs comprise the ex tempore Reasons delivered on 11 March 2011. The paragraphs under the heading "Costs" comprise further ex tempore Reasons delivered on 11 March 2011 in relation to the issue of costs.
I indicated at the outset that, without the report of Mr Page, the father might have had something approaching an arguable case to defeat a Rice & Asplund type argument. The problem (from the father’s point of view) is that in paragraph 26 of his affidavit sworn 19 January 2011 – being the only affidavit upon which he relies in support of his application – he said:
Recently, I have attended upon Mr Page, clinical psychologist and psychoanalyst, to assist me to cope with not seeing my children and to help me deal with my past behaviour. Mr Page has not recommended that I require any further treatment, medication or counselling. My solicitor has requested a report from Mr Page, which will be made available to the Court. (Emphasis added.)
The report from Mr Page has, indeed, been made available to the Court. It is a troubling report, to say the very least. In my opinion, it is a gross distortion of the report to suggest that Mr Page has not recommended that the father requires any further treatment, medication or counselling. In the short time available to me this afternoon, I do not propose to review the report in its entirety, but I accept and adopt the criticism of it raised by Mr Curtain on behalf of the mother.
The number of matters that are simply omitted by the report is extraordinary. The last paragraph of the report is important. It reads as follows:
An important marker of the father’s progress with these issues has been his increasing capacity to mourn the loss of his marriage. At his last appointment, the father gave clear indication of a degree of acceptance of the fall of his ideals in regard to the institution of marriage. To that end, the father had been able to separate the nature and difficulties in his relationship with his ex-wife, from his relationship with his children. The father’s persistent wish to have contact with his children is, at this point, driven by the importance of exercising his function as their father and enjoying his children, the feelings in regard to whom exist as clearly separate to the bitterness and confusion which has characterised his relationship with his ex-wife. He has indicated that he wishes to have continuing therapy, in order to navigate a course through the current situation, in order to afford his children the love he feels for them, and the support which they are entitled to. (Emphasis added.)
Clearly, there is no ringing endorsement from Mr Page as to the father’s psychological state. Indeed, the report clearly leaves it open for the Court to conclude that the father has not fully accepted the final breakdown of his relationship, and that he has not yet dealt with the bitterness and confusion that has characterised his relationship with his ex-wife. Those prima facie conclusions can be drawn from the report of the father's own expert.
The circumstances that had to change in this case – to warrant reopening the question of whether or not the father should spend time with the children in any form – stem from attitudinal problems, or psychological or emotional or psychiatric problems, suffered by the father at the time of the Incident (and, indeed, which continued to the time when he was assessed by Dr Krum in the report that was handed up to me).
Again, I accept and adopt Mr Curtain’s submissions regarding the types of problems described by Dr Krum and the need for the father to deal with those issues, so that not only can the children feel safe in the future, but the primary carer of those children can also feel safe and secure. I am not satisfied that there is a prima facie case of changed circumstances in the context of this case. I know that the requirements of the line of cases commencing with Rice & Asplund are broader than that (and in due course – and if I am required to do so – I will give more detailed reasons for the decision that I have reached), but it is fair that I tell the parties of my view at an early stage.[12]
[12] As indicated above, these Reasons comprise the "more detailed reasons" foreshadowed in this comment.
That view is that no prima facie case of changed circumstances has been established – and I would add that even if some form of changed circumstances were to be considered as having arisen out of, perhaps, passage of time or, perhaps, the fact that the father has completed his period of imprisonment and his period of parole, I am not satisfied that those circumstances would serve to justify a full hearing at this point in time. I would also add that I am not satisfied that it is appropriate to open the case to the extent that would be necessary for the appointment of an independent children's lawyer and the preparation of a family report (which was a matter raised by Mr Thomas on behalf of the father, and met fairly and squarely by Mr Curtain in his response). Mr Curtain submitted, and I accept, that the form of the current hearing was agreed beforehand, and for the father to raise matters of that nature at, effectively, the eleventh hour and 59th minute, is wholly inappropriate.
I need to say, though, that the decision that I have reached does not mean that the father can never re-open the issue of whether he should spend time with the children. It really does fall to him to demonstrate that the concerns set out by the mother in her material, and set out in the passages to which Mr Curtain referred from Dr Krum’s report, are no longer of the weight or significance that they once were. In a sense, I have come full circle, and record that had it simply been the statement of the father in his affidavit (to the effect that he no longer requires any further treatment, medication or counselling) to which the Court was required to direct its attention, and had Dr Page’s report contained what the father said that it would contain, and had the report been comprehensive (as, in a case like this, one would think that it clearly needs to be), then, in my view, the father might have come close to persuading the Court to reopen the issue. And, perhaps, he might also have come close to persuading the Court to obtain a family report on a limited basis – for the purpose of ascertaining what the children think about re-establishing some form of contact with their father.
But Mr Curtain’s criticisms of the Page report are fair, and I adopt them. I have already highlighted the final passage of the report, which raises far more questions than it answers.
I have had regard to the history of the parties’ relationship (particularly post separation) and the circumstances at the time that the Final Orders were made, and I have certainly had regard to not only what the father has said in his affidavit, but also what the mother has said in hers (given that the father did not contest anything in the mother's material). I do not doubt for one moment that the father aches to see his children, but it is the best interests of the children that must be the Court’s paramount consideration at this stage, and at all stages throughout the determination of parenting proceedings.
In my view, it cannot help the children, and it cannot be in their best interests, for me to leave these proceedings on foot in their current form. The father, regrettably for him, has more work that he needs to do before he can hope to achieve a reopening of the Final Orders. I have said that that is not an impossible task, but the ball, to put it colloquially, is in his court. The father’s application will be dismissed.
Costs
As indicated above, the following paragraphs comprise further ex tempore Reasons delivered on 11 March 2011 in relation to the issue of costs. They have been revised to repair formal or grammatical errors or awkward phraseology.
The question of costs in family law proceedings is dealt with in section 117 of the Family Law Act. A judicial officer has a broad discretion in costs matters, and it has been said by the Full Court, for example, that it will not ordinarily intervene, unless a costs order is plainly unreasonable. Indeed, it has been held that the Court has an almost unlimited jurisdiction in relation to costs – although, clearly, any order for costs must be just. See in that regard Kelly & Kelly (No.2) (1981) FLC 91-108, Hogan (1986) FLC 91-704 and I & I (No.2) (1996) FLC 92-625.
It is not the law that a costs order can only be made in what has been described as "a clear case". Although a finding of justifying circumstances is an essential preliminary to the making of a costs order, there is no additional or special onus on an applicant for an order for costs. The general rule is that each party shall bear his or her own costs, but that rule is expressed to be subject to section 117(2), and it must yield whenever the judicial officer finds that there are circumstances which justify the making of a costs order (see, in that regard, the decision of the High Court in Penfold (1980) FLC 90-800).
There is nothing in the provisions of section 117 which would justify any difference in approach to the question of costs in parenting or children’s matters. Circumstances such as a totally unmeritorious case on one side, an attempt to vary a parenting order which does not even establish a prima facie case, the withholding of evidence and like matters are common bases for such an order – but they are not necessarily prerequisites. The Court is required to take into account the other matters in section 117(2A) as well, to the extent to which they are relevant (see in that regard I & I (No.2) and Re David (Costs) (1998) FLC 92-809).
I turn now to consider the factors that I must under section 117(2A) of the Family Law Act 1975. The first of those comprises the financial circumstances of each of the parties to the proceedings.
I am advised that the father is not in receipt of Legal Aid, which is relevant to the next consideration as well. He is self-employed, earning a very modest income. He has obviously paid for these proceedings himself. Beyond that, I am not aware of his financial circumstances; nor am I aware of the mother’s financial circumstances.
The next factor, as I have indicated, relates to the question of whether either party is in receipt of assistance by way of Legal Aid. That is not a relevant consideration.
The next factor is the conduct of the parties to the proceedings in relation to the proceedings. That provision requires the Court to have regard to the parties’ conduct as litigants. I have no criticism of either party in relation to their conduct as a litigant. The father was entitled to make his application, and he did. The mother was entitled to respond to it, and she did. The Court has heard argument for and against the orders sought by Mr Curtain, and the Court has ruled on the subject.
In my view, that factor is not relevant to my determination of the issue of costs.
The next factor is whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court. Again, that is not a relevant consideration. Neither party has failed to comply with the Final Orders.
The next factor is whether any party to the proceedings has been wholly unsuccessful in the proceedings. Clearly, the father has been wholly unsuccessful in his application before me.
On the basis of the line of cases beginning with Rice & Asplund, I have been persuaded to dismiss his application at the outset. That is a factor that would justify the making of an order for costs in the mother’s favour.
The next factor is whether either party to the proceedings has made an offer in writing to settle the proceedings, and the terms of such an offer. That is not a relevant consideration in the case before me.
The last factor comprises such other matters as the Court considers relevant.
In that regard, I return to the summary of the law in relation to costs that I opened with, referring to passages from I & I (No.2) and Re David (Costs). One of the circumstances that would ordinarily justify an order for costs is an attempt to vary a parenting order which does not establish a prima facie case and, for the reasons that I have given, I have found that the father has not overcome the threshold questions that are relevant to the requirements set out in Rice & Asplund and the line of cases that follows it.
It is a very similar situation, therefore, to the father not establishing a prima facie case. I take that into account generally, but the single most significant justifying factor is that which requires the Court to consider whether any party has been wholly unsuccessful. Here, the father has indeed been wholly unsuccessful. In all the circumstances, an order for costs is justified and, in my view, it is appropriate that such an order be made. The quantum of $2,000 (being the amount sought by Mr Curtain) is well within the scale, and Mr Thomas, fairly and properly in my view, did not take issue with the quantum.
I will order that the father pay the sum of $2,000 in respect of the mother’s costs. Having regard to his uncertain financial position, however, I will allow him six months within which to pay that amount.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Walters FM
Date: 27 April 2011
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