Losif & Losif
[2023] FedCFamC1F 1084
•15 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Losif & Losif [2023] FedCFamC1F 1084
File number(s): BRC 3570 of 2019 Judgment of: JARRETT J Date of judgment: 15 December 2023 Catchwords: FAMILY LAW – PARENTING – Application to vary final orders – Evidence does not suggest a change in circumstances – Any change in circumstances immaterial in context of primary judge’s findings – Application dismissed
FAMILY LAW – PRACTICE AND PROCEDURE – Application to adduce further evidence before delivery of judgment – Where evidence could have been available at hearing with reasonable diligence – Evidence not so material that the interests of justice require its admission – Application dismissed
Legislation: Family Law Act 1975 (Cth) s 69ZN
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: Reid v Brett [2005] VSC 18
Withers & Russell (2016) 55 Fam LR 447
Division: Division 1 First Instance Number of paragraphs: 40 Date of hearing: 17 November 2023 and 11 December 2023 Place: Brisbane Solicitors for the Applicant: Litigant in person Solicitors for the Respondent: Litigant in person ORDERS
BRC 3570 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LOSIF
Applicant
AND: MS LOSIF
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERS THAT:
1.The initiating application filed on 8 August, 2023 is dismissed.
2.The response to final orders filed on 14 August, 2023 is dismissed.
3.The amended application in a proceeding filed on 14 November, 2023 is dismissed.
4.The application in a proceeding filed on 20 November, 2023 is dismissed.
5.The matter be listed for the purpose of taking submissions from the applicant as to whether the orders of 13 October, 2022 reflect the intention of the Court insofar as they make no provision for the children to spend time with the respondent during Christmas school holiday periods (save for the 2022 – 2023 years) at 9:30am on 20 December, 2023 in the Federal Circuit and Family Court of Australia (Division 1) sitting at Brisbane.
6.The parties have leave to appear by telephone on 20 December, 2023.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 13 October, 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made final parenting orders between these two parties. Those orders provided for the four children subject to this application, W, X, Y and Z currently 13, 12, 9 and 5 respectively, to live with the applicant (their father) and spend some holiday time with the respondent (their mother) during the day. Not even 10 months later, the applicant filed another application for final orders in circumstances where the respondent had withheld one of the children. He sought a recovery order and final orders that the children live with him and spend no time and have no contact with the respondent unless otherwise agreed between the parties in writing.
The respondent filed a response on 14 August, 2023. By her response she sought orders that she have sole parental responsibility for the children, that they live with her and they spend holiday time and some limited electronic communication only with the applicant.
A recovery order issued on 15 August, 2023 and the matter was transferred to this court. On 25 September, 2023 the respondent filed an application in a proceeding seeking for the children to spend significant overnight school holiday time with her, plus a host of other orders about communication, alcohol testing, diets, activities and “councelling”.
On 26 September, 2023, a judge of this Court listed the matter for a discrete hearing before me on 17 November, 2023. The order of 26 September, 2023 did not specify the discrete issue to be determined, but in the context of the recent final orders and the competing applications of both parties to vary those final orders, it was tolerably clear the discrete issue to be determined at the hearing on 17 November, 2023 was whether there had been a significant or material change in circumstances sufficient to warrant the revisiting of the final parenting orders made in October, 2022.
When I heard the matter on 17 November, 2023, the applicant’s position had changed such that he no longer sought a change in the final orders. His position was that the respondent’s application in a proceeding should be dismissed and all outstanding applications be dismissed. The respondent pressed her application in a proceeding and the matter was heard on that day and judgment reserved.
On 20 November, 2023, while judgment was reserved, the respondent filed a further application in a proceeding seeking to submit additional evidence. I heard that application on 11 December, 2023 and reserved judgment.
For the reasons that follow and save for one matter to which I have referred at the conclusion of these reasons, both applications in the proceeding shall be dismissed. Given the applicant no longer seeks a change in the final orders, I have consequently dismissed all outstanding applications and responses.
APPLICATION TO ADDUCE FURTHER EVIDENCE
The application in a proceeding filed 20 November, 2023 effectively seeks to reopen the parenting proceedings to allow the respondent to adduce further evidence. She sought a date of 18 December, 2023 by which to file that further evidence.
In her affidavit filed 20 November, 2023, the respondent identifies two types of evidence she wishes to adduce if the case is reopened. The first relates to documents from Education Queensland, which were produced under a subpoena sealed on 6 November, 2023. Those documents were to be produced by 20 November, 2023. The second relates to documents from B Hospital and about which she says she wants to issue a further subpoena.
The respondent also filed an affidavit on 8 December, 2023. This affidavit contained the respondent’s deposition to a series of events predating the hearing on 17 November, 2023, as well as some annexed documents produced under subpoena by Education Queensland and a specific complaint about the Christmas holiday time in the orders of 13 October, 2022 which had not been made prior.
The applicant therefore seeks to adduce new evidence in four categories: documents from Education Queensland, documents from B Hospital (in respect of which she is yet to issue a subpoena), the further evidence contained in her affidavit of 20 November, 2023, and her evidence about what she considers to be an error in the orders of 13 October, 2022 relating to school holiday time.
In Withers & Russell (2016) 55 Fam LR 447, Watts J traversed the legal principles relating to reopening proceedings for the purposes of adducing further evidence while judgment is reserved. Whilst not appellate authority, I respectfully adopt the comments of his Honour at [31] – [34] (paraphrased) that:
·an application to reopen a case is not an application for a parenting order and thus the court is not required to regard the best interests of the children as the paramount consideration;
·the best interests of the children is nonetheless a relevant consideration, and the decision to reopen requires a decision about the conduct of child-related proceedings, thus invoking the principles of s 69ZN of the Family Law Act 1975 (Cth) to:
·consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child;
·actively direct, control and manage the conduct of the proceedings;
·ensure the proceedings are conducted in a way that will safeguard the child concerned from being subject to abuse, neglect or family violence;
·ensure, as far as possible, the proceedings are conducted to promote cooperative and child-focused parenting; and
·ensure the proceedings are to be conducted without undue delay and with as little formality and legal technicality as possible;
·the usual criteria governing the exercise of discretionary power to reopen a case to admit further evidence apply as set out by Habersberger J in Reid v Brett [2005] VSC 18:
·the further evidence is so material that the interests of justice require its admission;
·the further evidence, if accepted, would most probably affect the result of the case;
·the further evidence could not by reasonable diligence have been discovered earlier; and
·no prejudice would ensue to the other party by reason of the late admission of the further evidence.
In this case, the broader context is one of significant parental conflict and continuous litigation between these parties about their children. It is not in the best interests of these children for the proceedings to continue ad infinitum, something which is very much a live prospect if the respondent continues to make applications to adduce further evidence before the delivery of judgment. I must weigh this consideration against the relevance and probative value of the evidence the respondent seeks to adduce.
As to the documents for which the respondent would have to issue a subpoena to B Hospital, I decline to exercise my discretion to allow her to adduce those documents. The evidence given by the respondent in her affidavit of 20 November, 2023 is that she did not realise a subpoena to Queensland Health would not also elicit documents held by B Hospital. With proper legal advice the respondent may have drafted a subpoena that was effectual in obtaining the documents she sought. That she did not is irrelevant given that with reasonable diligence the documents could have been obtained. I also take into account that the respondent did not ask for an adjournment of the proceedings on 17 November, 2023 to obtain the documents. The case should not be reopened to allow their adduction.
The documents from Education Queensland are annexed to the respondent’s affidavit filed 8 December, 2023. The hearing date of 17 November, 2023 was allocated by me at a directions hearing attended by the respondent on 26 September, 2023. A subpoena to Education Queensland was not filed until 2 November, 2023 and sealed on 6 November, 2023. The date for production was 20 November, 2023. There was no explanation by the respondent as to why it took her over five weeks to file this subpoena, nor why she did not seek an adjournment of the hearing on 17 November, 2023 in order to obtain these documents, being aware they were not to be produced until 20 November, 2023. I consider that the documents could have been obtained and utilised at the hearing had the respondent exercised reasonable diligence.
I further consider that the evidence is not so material that the interests of justice require its admission, nor that it would probably affect the result of the case. They are behaviour records and records of contact that show that W is generally performing well in school, albeit with some behavioural problems. The respondent’s claim that this is in stark contrast to when W was in her care is not made out. I decline to exercise my discretion to reopen the proceedings to adduce this evidence.
In the context of a general re-opening of the October, 2022 orders, the respondent’s complaints about those orders are not relevant. The respondent has applied for a change in the final orders because of a material or significant change in circumstances, rather than a variation pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). However, as I have set out later in these reasons, insofar as the respondent seeks a variation to the orders relating to Christmas school holiday time, I have treated the respondent’s application in a proceeding filed on 20 November, 2023 as an application under FCFCR 10.13.
The balance of the respondent’s affidavit of 8 December, 2023 predominantly contains evidence of events prior to the hearing on 17 November, 2023. The few events she deposes to more recently do not advance the respondent’s case further than she put it at the hearing on 17 November, 2023. They are also prejudicial to the applicant, who has not been afforded the opportunity to respond to them. In the circumstances of this matter involving high levels of parental conflict and serious issues of credit (as found by the judge who made the final orders of 13 October, 2022), this evidence would assist the respondent’s case very little. I decline to exercise my discretion to reopen the proceedings to adduce this evidence.
Save to the extent that the application, might be seen as an application under FCFCR 10.13, the application in a proceeding filed 20 November, 2023 is dismissed.
APPLICATION IN A PROCEEDING FILED 25 SEPTEMBER, 2023
This application was amended on 14 November, 2023, though what amendments were made is not clear because the amendments have not been made in the usual way, rather an entirely new document has been lodged.
The respondent’s case outline filed 14 August, 2023 made 16 “contentions”. Those can essentially be summarised as the following arguments:
·the children, particularly Z, are having their medical needs neglected in the applicant’s care;
·Z reported being exposed to physical and verbal abuse in the applicant’s care, perpetrated by his siblings; and
·the applicant has observed concerning behaviours in the children that she purports are “indicative of alienation and manipulation” of them by the applicant.
In Defrey & Radnor [2021] FamCAFC 67 after considering SPS & PLS (2008) FLC 93-363 at [81] and [84], Miller & Harrington (2008) FLC 93-383 at [105] and Marsden v Winch (2009) 42 Fam LR 1 at [58] the Full Court summarised the law concerning Rice and Asplund (1979) FLC 90-725 as follows:
19.In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20.It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21.The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
22.Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
(my emphasis)
The primary judge gave significant consideration to the issue of risk of emotional harm to the children in the respondent’s care:
162In encouraging [W] to make false allegations against her father I am satisfied that [W] was emotionally abused by her mother. The allegations made against the father were extremely serious and had the potential for the father to be charged criminally and if convicted face lengthy criminal sentences. The seriousness of the mother’s conduct in this regard cannot be understated.
163The mother continued to make false allegations that the father sexually assaulted [W] and [X] despite [W’s] retraction of the allegations. It is almost unfathomable that the mother made those allegations after the Court determined on an interlocutory basis that the children should spend unsupervised time in her care. That order opposed by the ICL was supported by the father. The interim orders would have allowed the mother to spend unsupervised substantial and significant time with the children and maintained the children’s relationship with both parents.
164I am satisfied that the children would be at risk in their mother’s care should they return to live in her full time care. There is a risk that the mother would continue to influence the children to make serious false allegations against the father subjecting the children and the father and his wife to further investigations, destabilising the children’s home life. There is a risk that the children would be emotionally and psychologically harmed in that process. There is a risk that the children’s medical and dental needs would not be met should they live with the mother. There is a risk that the mother would not be able to support [Y’s] attendance at school and would not follow up the necessary medical assessments. In those circumstances [Y’s] development may be severely compromised. There is a risk that the mother may bring the children into contact with [Mr C] given that she is of the belief that he deserves to have a relationship with [D]. In weighing the risk I find it unacceptable and decline to make an order for the children to live with their mother.
165I am satisfied that it is in the children’s best interests that the children live with their father. I am satisfied he has the capacity to provide for the children’s day to day and long term needs and support them financially. He works full time. The children have suitable accommodation. He and his wife [Ms E] share a large home proximate to the children’s school. The father has acted in a protective capacity and was vigilant and concerned that the children were undernourished during the time they lived with the mother. He followed up those concerns in in seeking medical advice. Throughout these proceedings he raised legitimate issues regarding the children’s health and the mother’s concerning attitude to her responsibilities as a parent in particular her inability to ensure [Y] attended school and follow up recommendations by medical practitioners and other allied health professionals. He attempted to ensure the children’s vaccinations were up to date. He was able to support and facilitate [Y’s] regular attendance at school and provide the children with a loving and supportive environment. All the children get along extremely well with the father and his wife and have positive relationships with [Ms E’s] three children who will live in the same household as the subject children. There is no evidence that the father has attempted to undermine the children’s relationship with their mother. Nor is there any evidence that he has engaged in denigrating the mother in the presence of the children during the period the mother made serious false allegations against him. On the contrary he has continued to support the children maintaining a relationship with their mother until the time he became aware that the mother was making false allegations against him.
(my emphasis)
As to the issue of medical care, the primary judge said at [176]:
I intend to make an order for the father to have sole parental responsibility for the children. I am satisfied he has the capacity to ensure the children’s medical, dental and educational needs are met and have every confidence he will support the children in this regard.
If the respondent can establish that the children’s medical needs are not being met in the applicant’s care, that will constitute a change in circumstances. However, she does not do so. Indeed, her reference to medical evidence demonstrates that the applicant has sought out medical assistance for the children as and when required. Rather than neglecting his needs, he seems to be attending to them.
The respondent relied on an affidavit filed 14 November, 2023. The respondent’s evidence about the children’s alleged malnourishment includes some general observations about the children’s attitudes, as well as some health results the applicant shared with the respondent indicating Z had low iron and poor dental health. The respondent did not provide medical evidence to suggest that these symptoms were in any way caused by the applicant’s neglect. Again, that there were results like these available to be shared with the respondent demonstrates the applicant’s interest in and attention to the children’s health.
The respondent’s evidence about Z’s medical condition is similarly unpersuasive. No medical evidence was advanced to support the proposition that Z has the condition, or that he was not receiving adequate care from the applicant. That was also the case for the respondent’s evidence about Y’s anxiety and W’s medical conditions.
The respondent also gave evidence about Y’s and Z’s dental problems, but there was no evidence to suggest a deterioration of the children’s dental health in the applicant’s care rather than a continuation of the significant problems with their dental health that the primary judge found was caused by the deficits in the respondent’s parental capacity.
The respondent also complained that the applicant had taken Z for sexual health tests after he returned from her care. This was the subject of Exhibit 3 in these proceedings. These are surgery consultation notes of Dr F from mid-2023. The notes record:
dad has full custody
2 weeks ago mum abducted [Z] while having 2 monthly visits
abducted [Z] / police was involved and recovered [Z] 2 days
mum works inadult [sic] industry and she was bringing [Z] to different houses
dad is concerned about STI, needs screening, concerned about HIV/aids long discussion about its blood transmission
advsied [sic] needs to be rescreened at 3 months
These notes do not indicate whether the applicant said these things to Dr F in the presence of Z, nor do they indicate any other health concerns for Z in the applicant’s care. Insofar as the respondent claims these tests indicated low iron, she did not call Dr F, or any other medical professional, as a witness to interpret the notes.
The respondent deposes that Z has sustained scratches and bruises on his neck, back and ribs, and he reports being hit daily by Y and sometimes his step-sister. She provides no corroborative evidence of Z’s injuries, nor does she set out the words used by Z in reporting these incidents to her to enable any finding of fact. There is no explanation or evidence attributing sibling fighting to the applicant in any way nor, if it occurs, that he does not deal with it appropriately. I also do not consider that the orders sought by the respondent could conceivably quell sibling fighting. This evidence does not constitute a change in circumstances.
The last of the respondent’s claims is that the children are being alienated from her in the applicant’s care. To this end, she gives evidence of conversations she has had with the children in which they have espoused negative attitudes towards her. There is no evidence that the applicant is the cause of these negative attitudes. In fact, these attitudes are consistent with the primary judge’s findings that the respondent had subjected the children to emotional harm and neglect. This does not constitute a change of circumstances.
Moreover, the decision of the trial judge was based on findings not just that the children would be well cared for in the applicant’s household, but of significant risk for them in the respondent’s. The primary judge found that the respondent had emotionally abused W by encouraging her to make false allegations of sexual abuse against the applicant. Her Honour found there were risks that the respondent would continue to influence the children to make false allegations and not adequately support their medical needs or attendance at school.
In that context, none of the matters raised by the respondent, even to the extent they constituted changes in circumstance, could constitute significant or material changes in circumstance. None of the matters raised, taken at their highest, stack up against the grave risk of emotional harm set out by the primary judge. Nor do they weigh against the desire to prevent these children from being exposed to further litigation amongst the already high degree of parental conflict they experience.
The respondent does not establish that there has been a significant or material change in circumstances at all, let alone a change which is sufficient to warrant the revisiting of the welfare of these children. Consequently, in circumstances where the applicant no longer pursues the final orders sought in his initiating application, it is appropriate to dismiss all outstanding applications and responses.
DO THE ORDERS OF 13 OCTOBER, 2022 REFLECT THE INTENTION OF THE COURT?
This issue was raised by the respondent in her affidavit of 8 December, 2023. No proper application was made to vary the orders pursuant to r 10.13, often called the “slip rule”. I am satisfied, however that I should deal with this issue either by treating her application filed on 20 November, 2023 as an application pursuant to FCFCR 10.13 of by granting leave for an oral application pursuant to the rule for correction of the October, 2022 orders on the basis that they contain a slip or error such that they do not reflect the intention of the court.
The orders that provide for the children to spend time with the respondent over the Christmas holidays only so provide for the 2022/2023 holidays. No provision is made for holidays from 2023/2024 and beyond.
The primary judge stated at [177]:
I intend to make orders for the children to spend time with their mother once every 5 or 6 weeks for short periods to minimise the children’s risk of emotional harm.
The respondent has at least an arguable case that the final orders made do not reflect the Court’s intention. It would however be prejudicial to the applicant to make any amendment to the orders without affording him the opportunity to make submissions on this issue. Given the Christmas holidays are already upon us, there will be an order that the matter be listed for the purposes of taking his submissions on this issue on 20 December, 2023 only. Both parties shall have leave to appear by telephone on that date.
I make the orders set out at the commencement of these reasons.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 15 December 2023
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