MAHONEY & DIETER
[2018] FamCA 532
•27 June 2018
FAMILY COURT OF AUSTRALIA
| MAHONEY & DIETER | [2018] FamCA 532 |
| FAMILY LAW – CHILDREN – Rice & Asplund threshold issue – Where final parenting orders were made by the Family Court Division of the District Court of New Zealand in 2017 – Where those orders provide for the child to live with the father in Australia, spend supervised time with mother in New Zealand, and communicate with the mother via Skype – Where the mother filed an Initiating Application seeking discharge of the New Zealand orders and fresh parenting orders that provide for the child to live with her in New Zealand – Where the father sought dismissal of the Initiating Application due to there being no material change to warrant revision of the orders – Where the mother’s evidence made no tangible difference to the findings made by the New Zealand court – Where the mother failed to demonstrate any material change in circumstances – Ordered mother’s Initiating Application be dismissed with no order as to costs. |
| Care of Children Act 2004 (NZ) Family Courts Act 1980 (NZ) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 14.42(c), 15.51, 15.41 and 15.52 |
| Langmeil & Grange [2013] FamCAFC 31 Marsden & Winch (2009) 42 Fam LR 1 Miller & Harrington (2008) FLC 93-383 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 |
| APPLICANT: | Ms Mahoney |
| RESPONDENT: | Mr Dieter |
| FILE NUMBER: | MLC | 11835 | of | 2017 |
| DATE DELIVERED: | 27 June 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 27 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Not Applicable |
| COUNSEL FOR THE RESPONDENT: | Ms Harris |
| SOLICITOR FOR THE RESPONDENT: | Melbourne Family Lawyers |
Orders
The mother’s Initiating Application filed on 14 November 2017 is dismissed.
No order as to costs.
Any and all other outstanding applications are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mahoney & Dieter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 11835 of 2017
| Ms Mahoney |
Applicant
And
| Mr Dieter |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
In 2017, parenting orders were made between the applicant mother and respondent father in respect of their only child by the Family Court Division of the District Court of New Zealand. The orders were made on 7 April 2017, but sealed on 11 April 2017.
Relevantly, the orders provided for the child (who was then just short of six years of age) to live with the father in Australia. The orders were not appealed. The orders were made in the terminology recognised by the Care of Children Act 2004 (NZ) but unfamiliar to the Family Law Act 1975 (Cth) and provided for the father to have “the role of providing day-to-day care” of the child and the mother to have “contact” with the child in the ways particularised in the orders. Shortly after the orders were made, the father brought the child to Australia and established their residence here and the New Zealand orders were subsequently registered in Australia on or about 29 January 2018.
For present purposes, the orders expect the father will take the child from Australia to New Zealand to visit the mother under professional supervision on two occasions in each school holiday period and will otherwise make the child available in Australia to communicate with the mother by Skype. Unfortunately, the orders are far from prescriptive or clear about when and how the child will visit and communicate with the mother.
On 14 November 2017, the mother filed an Initiating Application in this Court seeking fresh interim and final parenting orders for the child. In effect, she wants to discharge the New Zealand orders and replace them with orders requiring the child to return and live with her in New Zealand. The father filed a Response on 15 January 2018. He seeks outright dismissal of the mother’s application on the premise that no circumstances have materially changed to warrant revision of the orders made little more than a year ago.
On 30 April 2018, the registrar listed the proceedings for hearing to determine the threshold issue of whether or not the mother can demonstrate the existence of changed circumstances to warrant re-consideration of the orders (see Rice & Asplund (1979) FLC 90-725). That is the issue now listed for hearing before me.
The Law
In order to thwart the prospect of endless litigation over children, principles evolved to permit the Court to dismiss subsequent parenting proceedings if there are no material changes in circumstances or no revelation of some previously unknown material feature since litigation was last finalised in respect of such children (see Rice & Asplund; SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Langmeil & Grange [2013] FamCAFC 31).
The determination of whether there has been a change of sufficient magnitude to warrant review of existing orders may be made either by preliminary inquiry or by more comprehensive hearing (see Marsden & Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83]). At whichever stage the determination is made, application of the Rice & Asplund principle is merely a manifestation of the broader principle that the subject child’s best interests are the paramount consideration and procedural fairness should always be observed (Marsden & Winch at [55]-[56]; Miller & Harrington at [101]).
In order to reach a conclusion, the Court should consider the past circumstances, including the reasons for the past decision, the evidence upon which it was based, and whether there is a likelihood of orders being varied in a significant way as a result of a new hearing (Marsden & Winch at [50]).
In this instance, the parties invite the Court to conduct a preliminary hearing to determine whether or not the parenting orders should be subject to revision.
The Evidence
To try and demonstrate changed circumstances, the mother relied upon the four affidavits she filed in these proceedings on 14 November 2017, 7 January 2018, 9 March 2018, and 10 May 2018. In respect of the first affidavit, the father objected to the admissibility of the annexures, to which objection the mother acceded. The annexures did not, therefore, form part of the evidence.
The mother was not cross-examined.
The mother also sought to rely upon an affidavit of a forensic psychiatrist (“Dr B”) filed on 27 April 2018. The father objected to the mother’s reliance on the affidavit but she was allowed to do so, subject to certain conditions, which she fulfilled.
Dr B did not purport to give evidence confined to that which would be given by a treating psychiatrist under the Family Law Rules 2004 (Cth) (r 15.41). Rather, he was engaged by the mother for the express purpose of providing opinion evidence in these proceedings and was therefore retained as an adversarial expert contrary to the Rules (rr 14.42(c), 15.51 and 15.52). Nevertheless:
(a)She is self-represented and was ignorant of the Rules’ preference for the retainer of single expert witnesses;
(b)The father knew of the mother’s desire to rely upon the adversarial expert evidence for about the last two months, but did not forewarn her of his objection to her reliance upon such expert evidence;
(c)The father sprang his objection upon the mother at the hearing; and
(d)The mother was able to make her adversarial expert available for cross-examination by the father.
For those reasons the mother was conditionally granted leave to rely upon Dr B’s evidence. The hearing was adjourned part-heard to a second day and an order was made in the following terms:
Leave is granted to the mother to rely upon the affidavit of [Dr B] filed on 27 April 2018 on condition that:
a.the mother furnishes to the father’s lawyers by 5 pm today the documents seen or created by [Dr B], referred to in paragraphs 2 to 4 inclusive of his report dated 17 April 2018; and
b.the mother ensures the availability of [Dr B] for cross-examination by way of telephone link at 10.30 am Eastern Standard Time on Wednesday, 27 June 2018.
As it transpired, the mother fulfilled those conditions and Dr B was cross-examined by the father’s counsel.
In opposing the mother’s application, the father relied upon:
(a)His two affidavits filed on 15 January 2018 and 20 April 2018; and
(b)A copy of the interim judgment delivered by the New Zealand court on 29 October 2015 (Exhibit F1).
The father was not cross-examined by the mother.
The Findings
In addition to the voluminous evidence filed by the mother, she filed with the Court (on 24 June 2018) lengthy and comprehensive written submissions articulating the nature of her case. Drawing upon those submissions, which were not usefully expanded during oral submissions, the mother contended that material changes in circumstances were proven in one or more of the following respects:
(a)The new evidence from Dr B:
(i)Filled the gap left by the New Zealand court’s decision to exclude evidence at trial from the expert psychologist then relied upon by the mother (Dr C);
(ii)Confirms, by reference to MRI scan results, the mother does not suffer from any cognitive deficit due to brain injury;
(iii)Confirms the mother’s PTSD symptoms are now in remission; and
(iv)Excludes the possibility the mother is delusional.
(b)She made a criminal complaint against the father to Australian police several months after the final New Zealand trial was completed in April 2017;
(c)There is evidence of the father’s (and paternal grandmother’s) contraventions of the existing orders, exemplified by:
(i)An argument between the parties in the child’s presence during a Skype call on 25 December 2017;
(ii)The father’s failure to give the mother “basic guardianship information”;
(iii)The cessation of contact between the child and members of the wider maternal family;
(iv)The contravention application the mother filed against the father on 10 May 2018;
(v)The paternal grandmother’s failure to regularly supervise Skype calls, as the New Zealand orders contemplated; and
(vi)The father offering third parties copies of the New Zealand court judgments in breach of privacy provisions embedded in the Family Courts Act 1980 (NZ).
(d)She entertains doubts about the father’s “mental stability.”
The evidence in respect of those contentions was found wanting.
Dr B
The evidence of Dr B did not do the work the mother expected.
The report compiled by Dr B on 17 April 2018 followed his perusal of a selection of documents provided by the mother and an interview with her of 90 minutes duration. Dr B acknowledged his assessment was “limited to the materials provided and the interviews [he] conducted.” In cross-examination he admitted “I didn’t have access to all material that might have been relevant.”
Dr B reported the mother suffered from thyroid disease in recent years which is a “well-recognised cause of a variety of secondary psychiatric difficulties including anxiety, depression and psychosis”. At the time of consultation, Dr B found the mother “functioning well” and her mood was “generally stable”. He concluded her past diagnosis with PTSD was justified and that her hyperthyroidism probably “provoked a substantial worsening of her mental state over the period of 2015, with a marked improvement after this condition was recognised and properly treated”. He found it was unlikely the mother suffered from delusional disorder or other psychosis at the time of assessment in April 2018. Nonetheless, he considered it was “appropriate” for her to continue receiving psychological treatment for her “difficulties”.
Dr B repeated in cross-examination it was no part of his remit to determine whether the mother’s allegations against the father were factually true. If her allegations are factually false, psychological therapy will not, according to Dr B, disabuse her of the fabrication or misconception. The doctor also agreed the mother could hold to false beliefs without being delusional.
Contrary to the mother’s interpretation, the decisions of the New Zealand court up to and concluding in April 2017 did not turn critically on her diagnosis with any psychological or psychiatric condition.
The New Zealand court found:
(a)The mother concealed her marriage from the father;
(b)The mother tried to maintain her adulterous relationship with the father until he chose to end the relationship in January 2012;
(c)The mother’s evidence about the child’s conception due to her rape by the father was incredible and her delayed complaints of rape to the police did not result in the father’s prosecution;
(d)The mother’s husband admitted to the New Zealand court he did not believe the mother’s allegation of rape against the father;
(e)Other evidence given by the mother about the father’s violent, overbearing, and intimidating behaviour was unreliable; and
(f)The mother’s psychological assessment commissioned by the court in those proceedings revealed her psychological functioning was “worrying inadequate [sic]”.
Despite extensive cross-examination, the New Zealand court’s expert adhered to her opinions in that litigation. The New Zealand court properly accepted the court expert’s opinions were not diagnostic of any psychological or psychiatric condition in the mother, but rather an assessment of the extent to which the mother could meet the child’s emotional needs. The court expert found the child’s relationship with the mother was “inadequate to meet her psychological needs”. The child’s primary attachment was with the father and the child’s secondary attachment with the mother was found to be insecure. The court expressly noted it was “not central to [its] task” to find whether the mother’s beliefs or allegations about the father were delusional. Rather, the central task was assessing which parent could best meet the child’s psychological needs and the Court found it was the father.
Those findings were made in a judgment delivered in July 2015, as a consequence of which only interim orders were made requiring the child to live with the father. Final judgment was delivered in April 2017 and the court refused the mother’s application for the child to return and live with her. The nature of the final orders made by the New Zealand court has already been outlined.
The mother wrongly asserted in these proceedings that the New Zealand court rejected the evidence of her own expert Dr C. In fact, Dr C’s evidence was received at the final hearing by the New Zealand court. Her report was, in fact, described by the court as “helpful” and it is clear from the court’s judgment that Dr C’s evidence was accepted as correct. Dr C reported “clinically significant areas of inadequate cognitive functioning” in the mother. Dr C thought it was important for the child’s contact with the mother to be supervised. Dr C also considered the mother and child “struggled to connect on an emotional level”.
Another court expert was engaged for the final hearing and her evidence was apparently compatible with Dr C’s opinions. She observed the child was “not well attached to her mother”. The court expert also re-affirmed the need for the supervision of the child’s contact with the mother.
The court ultimately concluded in April 2017:
[71] …taken as a whole, the evidence over two years of litigation persuades me that [the child’s] welfare and best interests will be better secured by remaining in the primary care of her father…
Consequently, the mother’s submissions about her normal cognitive process, the abatement of her PTSD symptoms, and her absence of delusional thoughts make no tangible difference to the findings made by the New Zealand court between 2015 and 2017.
The reasons given for the parenting orders were efficacious then and remain just as valid now.
Criminal Complaint
The mother reported the father’s alleged violent abuse of her in 2011 to the Australian police in November 2017.
There is no evidence the father has been or will be prosecuted in relation to her allegations, even if the investigation is still pending.
Regardless, the recent report to police is not evidence of a material change in circumstances since the subject orders were made in April 2017. The mother’s allegations about events in 2011 were canvassed at length by the New Zealand court in the 2015 hearings and the mother’s evidence about those events was found to be unreliable. Her allegations were rejected by the New Zealand court as probably false.
Contraventions of Orders
The mother filed a contravention application on 10 May 2018 which was heard and determined yesterday. During the hearing, the mother accepted her application was unmeritorious and she consented to its dismissal before the hearing was complete.
None of the alleged contraventions of the April 2017 orders by the father (or the paternal grandmother), whether particularised in the contravention proceedings or in these proceedings, could properly be construed as contraventions of the orders made in April 2017. The mother’s belief about what should happen under the New Zealand court orders bear little resemblance to what must or cannot happen in compliance with the orders.
Father’s Mental Health
Suffice to say, the mother’s expressed “doubts” about the father’s mental stability is not proof of anything other than her propensity to grasp at straws and jump at shadows.
In an overall sense, in the context of relentless pressure and persistent litigation, the father appears to have behaved quite sensibly. He continues to take the child to visit the mother in New Zealand during school holidays. He also continues to ensure the child communicates with the mother by Skype each week and on other special occasions, even though the orders made in April 2017 do not prescribe the frequency with which such communication should occur.
Conclusion
In such circumstances, the mother has failed to demonstrate any material change in circumstances since the final parenting orders were made by the New Zealand court in April 2017 and, as a consequence, her Initiating Application will be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 June 2018.
Associate:
Date: 20 July 2018