Mallard and Marat - [2011] FMCAfam 626

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MALLARD & MARAT

[2011] FMCAfam 626

FAMILY LAW – Application to summarily dismiss parenting application – whether or not changed circumstances demonstrated.

Reid & Lynch (2010) FamCAFC 184
Rice & Asplund(1978) 6 Fam LR 570
Vanderhum & Doriemus (2009) FMCAfam 708

Applicant:

MS MALLARD

Respondent:

MR MARAT

File Number:

SYC 4893 of 2007

Judgment of:

Altobelli FM

Hearing date:

27 May 2011

Date of Last Submission:

27 May 2011

Delivered at:

Sydney

Delivered on:

3 June 2011

REPRESENTATION

Solicitors for the Applicant:

Whitehead Payne

Respondent:

Self-Represented Litigant

ORDERS

The Mother’s application, filed 14 February 2011 be dismissed.
Response filed 10 March 2011 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Mallard & Marat is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 4893 of 2007

MS MALLARD

Applicant

And

MR MARAT

Respondent

REASONS FOR JUDGMENT

These proceedings relate to two boys, [Y], who is 14, and [X], who is 16. The applicant is the children’s mother. She lives in [Suburb omitted] in Queensland. She is 49 years old and is a [occupation omitted]. The respondent is the children’s father. He lives in [Suburb omitted] in Sydney, is 39 years old and is an [occupation omitted]. They commenced cohabitation in February 1992, married in 1992 and separated in March 2006.
By way of background, I provide the following chronology of events. As I have indicated, the parents separated in 2006 and the Court file indicates that the first orders relating to the children were made on 22 June 2007 and those orders provided for the children to, in effect, live with the father most of the time. On 22 January 2009 there was a further set of orders providing for the children to live with the father and to spend time with the mother in Queensland. Both the orders in question are consent orders. In 2009 the father married his current wife Ms Marat.
In January 2010 recovery orders were made for the return of the children to the father. In addition, on 19 January 2010 the mother filed an application in the Federal Magistrates Court, Brisbane, to vary the orders then in place. On 27 September 2010 the mother’s application of 19 January was dismissed by consent. When this matter was before me for hearing last week, that is on 27 May, there was some lack of clarity about whether the dismissal by consent was on the basis of Rice & Asplund(1978) 6 Fam LR 570. The mother’s solicitor did not know and, of course, she was not there at the time. The father asserted that it was dismissed on Rice & Asplund principles. I was able to ascertain by reference to certain statements that the mother made to the Department of Human Services, New South Wales, that, in fact, when the dismissal took place on 27 September 2010 it was, at least according to the mother, due to a failure to establish a change of circumstances.
In other words, the history of this matter is that as recently as 27 September 2010 an application by the mother to vary the current orders was dismissed on Rice & Asplund principles. In any event, on 14 February 2011 the mother filed the current application to the Court. What is significant about this application is that, consistent with her earlier applications, it is in substance an application to reverse the existing parenting orders. A number of factors are quite clear from the evidence before me and, for example, that the children have lived with their father since June 2007. It is clear that the current application is the second application to reverse the orders in just under 13 months.
In terms of the applicable law, I incorporate into these oral reasons the statement of applicable law in a decision of mine called Vanderhum & Doriemus (2009) FMCAfam 708 being paragraphs 5 to 12 inclusive of those reasons. In addition, I refer to and incorporate into these oral reasons, the statements of law by O’Ryan J sitting as the Full Court in Reid & Lynch (2010) FamCAFC 184 and specifically at paragraphs 201 to 223 inclusive and paragraphs 233 to 237 inclusive.
The evidence before me consisted of the mother’s affidavit, the father’s affidavit, an affidavit of Ms Marat, the previous Court files and subpoenaed documents including, of particular relevance, documents produced by the Department of Human Services and by the New South Wales Police. I intend to briefly summarise what is contained in these documents because they go to events which the mother asserts constitutes a change of circumstances and which, therefore, warrants her application continuing before the Courts.
I will start, firstly, with summarising the documents produced by the Department of Human Services, and I apologise in advance if this is not chronological. For example, on 8 March 2011 there is a document called Assessment Record relating to [Y] and the context is clearly family violence. This document says, in effect, that the young person is safe, that the protective factors are adequate, that the department will cease protective action and that there is an unlikely probability of harm. There is a note in the records dated 2 February 2011, and this one is entitled Secondary Risk of Harm Assessment, and the context of this document is that it arises out of what is described as a family violence incident between the father and his wife on 28 January 2011. I might just make this observation by way of narrative as I am looking at this evidence that it is interesting to note the difference between the records produced by the New South Wales Police about certain events and the records produced by the Department of Human Services.
Certainly, the Department of Human Services’ record of this event is slightly different to the COPS entry and, for example, talk about the children hearing a noise and [Y] reporting to petrified. Curiously, the New South Wales Police do not make that same observation. In any event, the record goes on to refer to [Y] being involved in a motor vehicle accident, arguments in the household, the father’s use of alcohol, the father’s physicality with [Y]. There is a note, however, that says as follows:
[Y] feels safe at home but prefers to live with his mother if she lived in Sydney. He enjoys school and a good network of peers.
There are a number of records of interviews with the father and his wife and there are a number of other significant matters that I think I should actually read onto the record as follows. For example, page 145, under the heading Severity of Harm - Risk of Harm:
The children have historically been exposed to domestic violence between the natural parents which is likely to have impacted on their emotional functioning. [Y] has heightened sensitivity to conflict between adults, which explains his response to the incident between his father and step-mother. Although this incident cannot be substantiated as the parties’ stories differ, there was clearly something during the incident that triggered [Y]’s concern and emotional state.
Also of concern is the conflict between the natural parents and the impact this has on [Y], as he is clearly torn between them and has been involved in conversations which are not appropriate for his age. [Y] spoke with his father saying negative things about his mother and spoke about his mother’s over-reaction to situations. When [Y] was asked who he would like to live with, he stated that he wished his mother lived in Sydney so he could live with her and stay at his school. Although [Y] spoke about incidents of concern, he did not express that he felt unsafe living with his father.
And again by way of narrative, I make this observation that [Y] appears to have a certain impression about what is happening between his parents that seems to have an objective basis, at least, from the perspective of the Court. His natural parents are engaged in an intractable conflict over the children in respect to which [Y] is clearly caught in between. [Y] has expressed the wish to live with his mother provided she lives in Sydney and that is so that he could stay at his school. If we turn to page 141 of the records, there is a file note of a conversation between an officer of the Department of Human Services and the mother on 10 March 2011 at 9.15 am and it records as follows:
She advised that she had received two strange phone calls with [Y]. The first was on the night of 22 February ’11 when the AVOs against the children were dismissed. She said that [Y] said in a quiet voice, “Mum, can you stop this Court stuff, please.” And she said, “Why?” He said, “I don’t want to be a burden, it will cost too much.” She said, “Give me a good reason” and he said, “Got to go” and phone hung up. She advised that [Y] then called her last Saturday at 8 pm from his dad’s landline phone.
She stated she doesn’t know why he called from the landline as he has got credit on his mobile. She stated that [Y] said in a quiet and scared little voice, “Mum, can you stop the Court stuff. I just don’t think it’s going to be for the best. I just don’t think we should do it.” She said, “Give mum a good reason.” He said, “I think things will be best if they stayed how they are.” She stated that she knows the sound of her son’s voice and that when he is relaxed he talks like me, he talks fast like me.
She stated, “On the phone he was very slow and shaking and I could sense fear in his voice. I know from my experience and I know that if he really wanted to speak with me then he would have done it on his mobile.” She stated that she believes his father put him up to it. She stated that he always says, “I love you” and believes that the father hung up the phone. I asked if she was still continuing with the Family Court proceedings.
I will not read out the rest of the quote but I will incorporate into the reasons.
Again, imposing my own observations on this conversation, based on the record of what the mother said to the DoCS officer, provides a really good insight into the situation that [Y] is in. He is clearly caught between his mother and his father. When [Y] says something that the mother, perhaps, does not want to hear, she immediately says that he has been put up to it. Whilst that perception is understandable, the fact that [Y] has expressed his views independently to an officer of the department on another day tends to corroborate that what he said on this occasion to his mother is, in fact, consistent with his independent view.
At page 29 there is yet another file note that is of interest. This one is on 2 February 2011 and it says:
Ms Mallard was keen to ensure that this agency would interview her son [Y]. Ms Mallard made it plain that in her view neither [Y] nor [X] should be in the care of Mr Marat, the father of the boys, and from whom Ms Mallard is divorced. As reasons she cited his violence towards her when in relationship with him and her understanding that he was continuing his abusive behaviour with his present partner and wife. This belief seems to have been gained through conversations with [Y].
The emphasis in the present context is that much of the mother’s evidence is based on conversations that she has had with [Y], as if that in itself would justify a reversal of the current orders.
At page 23 of these records there is the actual record of interview between an officer of the department and [Y], and this is the record of the interview where [Y] clearly articulates the view that he, in fact, prefers to stay in Sydney because of his school there but that it would be different if the mother were in Sydney. I intend to extract parts of this interview into my reasons because I hope it will give the mother and the father some insight into what is going on [Y]’s life and the importance for him of both of them stopping the intractable conflict that seems to be going on between them.
I turn now to the New South Wales Police records. On 1 February 2011 there is record of the mother attempting to take the children from their school. The mother admitted to the police that she has mild bipolar. The mother said that her 16 year old son, [X], can make up his own mind. The record says that the police explained that as [X] suffers from autism he is unable to communicate or understand what is going on. She first said it was okay for [Y] to go and then he changes his mind. [Y] did say that he did not want to live with the father and that the father has hit his step-mother. On 7 December there is an incident like an argument between the father and Ms Marat, his wife. However, the narrative suggests that this incident was not witnessed by the children.
On 27 September 2010 there is a record of Ms Marat, the father’s wife, complaining that the father was becoming aggressive but she did not feel threatened. The narrative indicates that the previous evening, on 26 September, the father had been involved in a motor vehicle accident due to intoxication. He had also been drinking today, that is on 27 September, and was upset about the motor vehicle accident and the Court proceedings. There is the record itself of the motor vehicle accident early on the morning of 27 September. Now, what is apparent is that the father and Ms Marat discharged themselves out of the Royal North Shore Hospital on foot. The narrative reports that the father raced off leaving Ms Marat behind, who reports him as a missing person. She felt that he might have gone off to find the [omitted] Bar. The father later reports he needed time to think, so he went home. On 26 January 2010 there is a report of a welfare check conducted on the children at the request of the mother with no problems evident.
On 26 September there is a record of the motor vehicle accident. At about 8 pm the father driving a [omitted vehicle], allegedly at 60 kilometres per hour he turned right, lost control of the vehicle, collided with a traffic light and the vehicle flipped on its roof. Now, all four occupants were taken to Royal North Shore Hospital, the two children with minor injuries. The father said to the police he was hurrying to the airport to get the children there and his level of concentration of alcohol in the blood was 0.2. The final relevant record is, I think, 11 November 2009 which records a fight between Mr P and [Y] that caused a bleeding nose and the impression created is that this was a fight between siblings.
I turn now to consider the submissions. The mother’s solicitor’s submissions were quite properly focussed on events after 27 September when the mother’s earlier application to vary was dismissed by consent. The mother’s case for change of circumstances is based on a number of matters. Firstly, the family violence in the household of the father as between the father and Ms Marat. Secondly, the father’s consumption of alcohol which resulted in the motor vehicle accident. Thirdly, that arising out of these matters, [Y] has expressed a view that he wishes to live with his mother. In the mother’s solicitor’s written submissions she refers to documents produced on subpoena by the Department of Human Services and New South Wales Police in support of the mother’s contentions.
The father says there are no changed circumstances and that the mother’s application is just another attempt by her to reverse a long-standing parenting arrangement. He is critical of the mother for involving [Y] in the proceedings, for instituting welfare checks that are unnecessary, for attempting to contravene orders and for causing a recovery order to be made. The father asserts that the only conflict that the children are exposed to is that which exists between the father and the mother and not as between the father and Ms Marat. The father acknowledges that there was a motor vehicle accident that was related to consumption of excess alcohol but he submits that is not enough to warrant revisiting the current parenting arrangements.
The application, of course, proceeds on the papers and, as I have indicated above, I have had regard to the documents produced as well as the material filed by the parties. The authorities say that I should take the mother’s case at its highest. A number of observations can be made about the evidence. Firstly, the mother clearly relied on what [Y] has told her and she has relied on this unquestioningly. If she has displayed any discernment about what [Y] was saying, it is not apparent in her communication with the Department of Human Services. Indeed, a close examination of what the mother asserts [Y] said and what [Y], in fact, said in the Department of Human Services interview triangulated with the New South Wales Police records actually produces a different picture and creates a real doubt in the Court’s mind as to whether the mother has any realistic prospect at hearing of proving the matters that she asserts.
It is interesting to note that Dr W in his expert’s report dated 25 May 2007 at page 26 makes this observation:
At the moment Ms Marat, the mother, also seems to place quite a bit of weight on what [Y] tells her to inform her about the situation within Mr Marat’s home. It seems to me that she had taken quite a subjective approach to this.
I must say I am not sure that much has changed. I urge the mother to be cautious about unquestioningly accepting what [Y] may say to her. He is a young man clearly caught up in the intense parental conflict that exists between the mother and the father. In those circumstances, [Y] is hardly an objective narrator of events in his father’s household. On the evidence before me, I can just imagine in my mind at a final hearing all of the mother’s concerns being systematically dissembled based on the matters that I have referred to above. In short, [Y]’s reports to the mother are not a firm foundation from which to establish changed circumstances.
Secondly, it must follow from this that what the mother considers to be [Y]’s views is also an unreliable foundation from which to consider change, but even if it were the case that [Y] was clearly articulating the view that the mother asserts, it is not determinative of the matter. [X] has special needs. He is resistant to a change of routine. Even if [Y] were expressing a view to go back to his mother in Queensland, it would not automatically follow that [X]’s interests are the same. This is not just a case about [Y]; it includes [X]. So to focus on [Y]’s views alone does not present the full picture.
Thirdly, this means, there is not, therefore, the evidence before the Court to establish either the level of conflict in the father’s household or his consumption of alcohol are matters of sufficient weight to justify revisiting the current orders. I am prepared to say that my impression is that the father is probably minimising the circumstances of his motor vehicle accident and, possibly, the father and Ms Marat are minimising the extent of their conflict, but that does not mean that, even taking the mother’s case at its highest, there is cause to revisit these parenting orders. The mother’s case for significant change of circumstances is simply not borne out after critical scrutiny of the very evidence on which she relies.
The rule in Rice & Asplund is closely connected with the nature of the mother’s application and the degree of the change sought. Here, she seeks a total reversal of the orders. Even taking the mother’s case at its highest, there is no warrant for this. Courts are very protective of children’s exposure to litigation. On the basis of all the evidence before me, to allow the mother’s application to proceed would unnecessarily expose [Y] and [X] to further stress. The parental conflict needs to lessen, not get worse. Even if the matters asserted by the mother had a firmer foundation, I must say I would still say that it is not in the best interests of these children for the litigation to continue.

This litigation ends here, right now. Now, I intend to have these orders taken out and placed on the Court file, so that there is not in future a similar situation with which I was confronted about lack of clarity in relation to the circumstances of the dismissal of the proceedings in 2010.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date: