Mahoney & Dieter (No. 3)
[2022] FedCFamC1F 151
•11 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mahoney & Dieter (No. 3) [2022] FedCFamC1F 151
File number(s): MLC 4348 of 2020 Judgment of: BENNETT J Date of judgment: 11 March 2022 Catchwords: FAMILY LAW - PRACTICE AND PROCEDURE - recusal application- application withdrawn by father.
FAMILY LAW - PARENTING- application to re-open a parenting case – relevant considerations including protecting child from ongoing litigation.
Cases cited: Freeman & Freeman [1986] FamCA 23
Rice v Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 11 March 2022 Place: Melbourne (heard via MS Teams) Counsel for the First Applicant: Litigant in person Counsel for the Second Applicant: Litigant in person (did not participate) Solicitor for the Respondent: Ms Loach, Melbourne Family Lawyers ORDERS
MLC 4348 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MAHONEY
First Applicant
MS MAHONEY
Second ApplicantAND: MR DIETER
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
11 MARCH 2022
THE COURT ORDERS THAT:
1.That there be leave to the step-father Mr Mahoney to unconditionally withdraw his Application in a Proceeding filed 6 March 2022, insofar as he seeks therein that I recuse myself from further hearing this matter.
2.This matter be set down for hearing before me estimated to take 3 days commencing on Thursday 28 July 2022 (“the hearing”).
3.The matter be listed for mention before me on 14 June 2022 or such earlier date within not less than 4 days of the s62G2 report provided for in this Order being released.
4.IT IS DIRECTED that a copy of the transcript of the proceedings of 20 July 2020 be provided to each party to the proceedings.
5.That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born 2011 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation NOTING THAT there have been serious allegations of family violence and violence per se which have been reported to authorities.
6.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.
7.That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.
8.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and child X born 2011 (“the child”) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a Specific Issues Report, with such report to be commenced as soon as practicable and to be released by not later than 10 June 2022.
9.The parties and the child attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise NOTING THAT I require that the child be interviewed face to face and any observation session with either parent and or the step-father be face to face. My preference is that the assessment interviews for the adults in the proceedings be face to face. In relation to other adults relevant to the proceedings IT IS REQUESTED that the child court expert include in the interview process:
(a)the paternal grandmother, Ms Q;
(b)Ms E who is the eldest child of Mr and Ms Mahoney who is 25 years old and residing in City R, New Zealand; and
for the avoidance of doubt, Ms S is not an adult who is to be included in the assessment process.
10.Not later than 4.00 pm on 18 March 2022 the parties must provide their contact telephone numbers and email addresses to …
11.The Family Consultant provide a written report to the Court by 10 June 2022 and the report deal with the following matters:
(a)Whether the circumstances of X are such that the Court should reconsider parenting arrangements contained in the Order made in New Zealand in early 2017;
(b)Whether the circumstances of the child are such that the Court should reconsider litigation confined to any isolated aspect of the current parenting arrangements;
(c)The views of the child in relation to:-
(i)Her current parenting arrangements;
(ii)Further litigation between her father and the mother and step father in relation to parenting arrangements;
(iii)What can be done to shield X from the negative impact of high parental conflict; and
(iv)Any other matter which relates to the care welfare or development of the child that the child court expert figures ought to be brought to attention of court.
12.For the avoidance of doubt the Child Court Expert be and is hereby authorized to have reference to:-
(a)all documents filed in these proceedings;
(b)any documents produced on subpoenae and released for inspection by all parties;
(c)any documents provided to him/her by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided; and
(d)any documents or things referred to in this Order.
13.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
14.Any party who wishes to cross-examine the Child Court Expert at the hearing provide notice to the Manager of Court Children’s Services not later than 2 working days following the release of the s62G(2) report.
15.My reasons for decision this day be transcribed and when settled a copy be provided to the parties and a copy placed on the file.
16.The hearing before the Honourable Justice Johns on 18 March 2022 be and is hereby vacated.
17.The Application in a Proceeding filed by Mr Mahoney on 6 March 2022 be and is hereby otherwise dismissed.
18.The Application in a Proceeding filed by Mr Mahoney on 28 November 2021 be and is hereby otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREBENNETT J:
This matter comes before me on a recusal application brought by the stepfather of X born 2011, which sought that I disqualify myself from hearing the matter set down for hearing on 18 March 2022 and, in particular, a Rice & Asplund issue in relation to the most recent application of the mother and the stepfather, Mr Mahoney, being the application filed on 2 May 2020. Incidentally, the stepfather, Mr Mahoney, seeks the preparation of a family report and, also, that a particular individual who was a former partner of the father be interviewed by the family consultant. He also seeks that the father respond to certain affidavits.
Today Mr Mahoney appears for himself. Ms Mahoney does not attend court. I am informed through the stepfather that she has an upset stomach and is indisposed. It is exceptional that I would proceed with a matter without a self-representing party being present; however, as she is of the same household as Mr Mahoney I have accepted what he says in relation to her indisposition. However, I do not imagine that I will proceed with any further step without Ms Mahoney being present. Accordingly, any further inability to participate in proceedings is likely to lead to an adjournment. Costs may flow from an adjournment if the adjournment is not caused by the party seeking costs.
Ms Loach, appears on behalf of the father. The father is participating in these proceeding by observing through audio/visual link. Mr Mahoney has withdrawn his application for my recusal unconditionally. In discussion today there is, essentially, agreement as to the way forward most constructively and efficiently, and that is to again seek the appointment of an independent children’s lawyer to represent X’s interests in these proceedings. Such application can mention the allegations of extreme family violence made by the mother against the father and reported to the appropriate authorities in New Zealand and dealt with by them. Ms Mahoney alleges, and the father denies, that X was conceived as a result of rape. The New Zealand Court found in 2017 that the mother’s account of the conception was not credible.[1] Further, the judge in the New Zealand parenting proceedings found[2]:
Having accepted the fact that the mother concealed the nature of her married status, and that her marriage was ongoing, and that she lied to the biological father about sleeping arrangements in the [Town U] home, her relationship to the two older children, and in light of the personal reaction of the biological father on his own values and standards, I conclude that this concealing of that status was emotionally abusive of the biological father.
[1] Paragraph 49 of the reasons of [New Zealand Judge].
[2] Paragraph 138 of the reasons for decision of [New Zealand Judge].
The next issue is the report; it relates to the Rice & Asplund issue to which the report will be directed.
In the 1979 decision of Rice & Asplund, from which the rule now takes its name, the Full Court stated the following:
The Court should not lightly entertain an application to reserve an earlier custody order. To do so would be to invite investigation for changes – 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 would justify such a serious step – some new factor arising, or at any rate, some factor which was not disclosed at the previous hearing which would have been material.
The rule in Rice & Asplund is aimed at preventing a party from re-litigating simply in the hope of obtaining a more favourable result from a re-exercise of a discretion. The purpose of it is to protect children, such as X, from the disruption and uncertainty of serial litigation. In cases subsequent to Rice & Asplund this Court has confirmed that the rule operates to protect the child based on the best interests not being served by repeated applications to vary orders. Strauss J in Freeman & Freeman [1986] FamCA 23 discusses this as follows:
…Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. For these and like reasons the Court may, in an appropriate case, scrutinise with some care an application such as the one in question here when a party applies for what is, in effect, the reversal of an order made a short time previously. The Court may enquire what the facts and circumstances are before it embarks on what might be a lengthy and costly hearing. Cf. McManus v. McManus (1969) 13 F.L.R. 449; Rice v. Asplund (1979) F.L.C. 90-725; Hayman v. Hayman (1976) F.L.C. 90-140 at 75,679-680.
The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the Court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the Court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential pre-requisite to their well-being. Another important reason for approaching with some care an application to over-turn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be over-turned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
Accordingly, a balance has to be struck between protecting the child from the effects of ongoing litigation and, secondly, ensuring that where circumstances have changed which may have a bearing on the best interests of the child a fresh assessment of those interests may be made. It is also clear from the successive case law that the threshold test need not be applied at the very commencement of the new set of proceedings and can be applied at any stage of those proceedings, even following a full hearing.
In my view, the proceedings about X should not advance without an examination of the Rice & Asplund considerations, but a necessary step in those considerations is to check to see X’s current situation and have an appropriately trained expert retained by the Court render an opinion on whether further litigation in relation to X is likely to produce a result which is better for her than her current circumstances. Change in circumstances is insufficient to re-open proceedings. There must be a change in circumstances which the best interests of the child impels the Court to look again at the parenting arrangements.
The section 62G(2) report is specifically directed to an assessment of whether any further parenting proceedings will result in an outcome which is better for X than the current situation. I note the current parenting orders are based on the decision of the Court in New Zealand delivered in early 2017. X was then five or six years old; she will shortly turn 11 years of age. She has not had face-to-face time with the other or the stepfather, Mr Mahoney, since July 2021 when it was possible for her to travel to City H and see her mother and stepfather on a supervised basis in City H.
If the section 62G report says that X is coping well or that father has matters in hand then it is unlikely that the application made in May 2020 by the mother and the stepfather, Mr Mahoney, will survive the Rice & Asplund test. If X is not travelling well, the family report may serve to identify the matters in respect of which the mother and stepfather should be able to re-litigate; we will have to wait and see.
I have asked that the family report be published before 10 June 2022 and be released to the parties at that time.
The Child Court Expert must be available for cross-examination at the hearing before me which commences on 28 July 2022. If there is any difficulty with his or her availability, I will endeavour to reschedule the hearing to accommodate it. I propose to hear from the family consultant as the first and last witness. As the first witness, the parties and the Court will be able to cross examine and ask particular questions that need not wait until the parents have given evidence.
The father sought that Ms S be interviewed by the family consultant. Ms S is a former partner of the father and with whom the stepfather alleges that the father resided for six months or so last year. The stepfather Mr Mahoney’s affidavit material makes clear that he has been encouraging Ms S to report matters concerning the father to Victoria Police. Mr Mahoney deposes that Ms S was not prepared to swear affidavit evidence at this time. In my view, the family assessment should not include an interview by the Child Court Expert of Ms S. The purpose of the report is to direct me to social science concerns about X – matters to do with her development, her relationship with the father, the mother and the stepfather, Mr Mahoney; it is not to produce evidence of whether or not the father resided in the same household as X for all of last year.
In contradistinction, the paternal grandmother should be included by the family report writer in the assessment process because she is a significant caregiver for X.
The stepfather, Mr Mahoney also seeks that Ms E, who is X’s sister, be included in the assessment process. Ms E is 25 years old and resides in City R. I will deal briefly with the constellation of the maternal side of the family. Mr and Ms Mahoney have been married since 1996. There were three children born of their relationship:
(a)Ms E, born 1996. She resides separately from her parents;
(b)Mr Y, born 1999. He was taken into care by Child, Youth and Family (as it then was) in New Zealand during the New Zealand proceedings. He has not, since, lived with Mr and Ms Mahoney. Mr Mahoney says that he is living in assisted accommodation and suffers from Medical Condition V. He is 22 years old. Whilst Mr and Ms Mahoney have reasonably frequent contact with him, he does not have any contact with X;
(c)Mr and Ms Mahoney’s other child of their relationship was Mr J born in 1998 who passed away in 2007. Mr Mahoney says that there was a coronial inquest into Mr J’s death and it was found that he died by medical misadventure in as much as the medical professionals failed to diagnose and treat an infection. If and when the independent children’s lawyer is appointed in this case, I expect that the independent children’s lawyer will obtain a copy of the Coroner’s decision.
The care of the Mahoneys’ older children is a matter which is likely to have some relevance to this Court’s determination of any parenting application which survives the Rice & Asplund application. It was during the trial before the New Zealand Judge in New Zealand in 2015 that the Judge, having heard evidence from child welfare workers, ordered the immediate uplift of X from the home of the mother and the stepfather, Mr Mahoney. X was then placed in state care. She has not returned to reside with the Mahoneys’ since that time. X has remained in the care of the state from 2015 until the implementation of the Judges’ decision of 2017 to place X in the care of the father, Mr Dieter.
Within a day or so of the removal of X from the Mahoney’s in 2015 the department removed Mr Y from the care of the Mahoneys; as indicated, he has not returned to their care since that time. Mr Mahoney says that no orders have been made about Mr Y and that all matters have been dealt with by consent. There seems to be a contradiction in terms, because one would assume that the matters to which there has been consent were matters which were then converted into orders, but we shall see when all the evidence is to hand. That will be another task for the independent children’s lawyer.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 11 March 2022. Associate:
Dated: 18 March 2022
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