Masterson & Braxton
[2022] FedCFamC2F 1635
Federal Circuit and Family Court of Australia
(DIVISION 2)
Masterson & Braxton [2022] FedCFamC2F 1635
File number(s): NCC 4050 of 2021 Judgment of: JUDGE KEARNEY Date of judgment: 27 October 2022 Catchwords: FAMILY LAW – Parenting – threshold – costs - where a party withheld children contrary to final parenting orders - to determine if parenting proceedings may be re-opened for a third time for children now aged 10 and 8 – reliance of the principle in Rice & Asplund – prima facie case of changed circumstances to justify further litigation not established - final orders made in 2019 are confirmed and the mother to pay costs of Independent Children’s Lawyer - best interests of children – delayed start in payment of costs by instalments just and appropriate Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Carriel & Lendrum [2015] FamCAFC 43
CDW v LVE [2015] WASCA 247; (2015) FLC 93-683; 54 Fam LR 297
Cross & Beaumont [2008] FamCAFC 68
Defrey & Radnor [2021] FamCAFC 67
King & Finneran [2001] FamCA 344
Marsden & Winch [2009] FamCAFC 152
Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157
Nada & Nettle (Costs) [2014] FamCAFC 207
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158
Rice & Asplund [1978] FamCA 84
SPS & PLS [2008] FamCAFC 16
Stern & Colli [2022] FedCFamC1A 95
Walter & Walter [2016] FamCAFC 56
Division: Division 2 Family Law Number of paragraphs: 107 Date of hearing: 24 October 2022 Place: Newcastle Solicitor for the Applicant: Mr Quinn, Intercept Law Solicitor for the Respondent: Self represented litigant Solicitor for the Independent Children's Lawyer: Ms Fielden, Fielden & Associates ORDERS
NCC 4050 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MASTERSON
Applicant
AND: MS BRAXTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE KEARNEY
DATE OF ORDER:
27 OCTOBER 2022
THE COURT ORDERS THAT:
1.The final orders made 19 June 2019 are confirmed.
2.The mother is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $1,650.00 and paid by fortnightly instalments of $25.00 commencing Friday 27 January 2023.
3.All outstanding applications are withdrawn and dismissed.
THE COURT NOTES THAT:
A.Pursuant to s 117(4)(a) of the Family Law Act 1975 (Cth), the court is prohibited from making a costs order against the father because he is legally aided in these proceedings; whereas such prohibition does not apply to the mother, since she has never received legal aid since the commencement of these proceedings last year.
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 Masterson & Braxton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE KEARNEY
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the reasons delivered orally amenable to being read.
introduction
The mother and the father have been litigating about their children since the oldest child was six months of age. That boy is now 10 years of age. The mother says that the father poses a risk of harm to the children, mainly from sexual abuse, neglect and his own mental health deficits. For these reasons, the mother wants a third round of parenting litigation to proceed. The father and the ICL do not. What should I do?
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth) between the Applicant, MR MASTERSON (‘the father’) and the Respondent, MS BRAXTON (‘the mother’). Unless otherwise specified, any reference to ‘the Act’ or a legislative provision shall be a reference to the Family Law Act 1975 (Cth).
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames and where possible there will be an avoidance of the use of gendered pronouns.
PRECIS
There are two children who are the subject of the dispute namely:-
(a)X (‘X’) who is 10 years old; and
(b)Y (‘Y’) who is eight (8) years old,
(collectively referred to as ‘the children’).
In December 2021, the father commenced proceedings which sought relief, including for an ex parte recovery order to be made after the mother withheld the children contrary to final orders made on 19 June 2019 (‘the final orders’). In response, the mother sought that the final orders be rescinded, for her to have sole parental responsibility for the children, and for the children to have supervised time with the father and for them to be enrolled in a different school.
By the time of the hearing, in summary, the issues to be determined by the Court were:
(a)whether the mother’s application to commence parenting proceedings should be dismissed in reliance on the principle espoused in the decision of Rice & Asplund [1978] FamCA 84 (‘Rice & Asplund’); and
(b)whether any costs order should be made.
On 19 June 2019, the final orders were made after a defended trial. Even earlier than that, on 7 May 2013, the first round of litigation resulted in the making of final parenting orders by consent.
Taking a broad-brush approach to her case, the mother’s most salient contention was that about four months after the final orders, she became aware of text messages between her biological daughter, K, and her daughter’s friend, N, that allege that the father had sexually abused K years earlier. The mother says that this information means it is open for the Court to find that a significant change in circumstances has occurred, because this circumstance was not something considered at trial, and demands a re-consideration of whether the final orders meet the best interests of the children. However, despite being aware of this circumstance, the mother did not inform this Court about the issue until after she was served with a recovery application, over two years later. There were other alleged changes in circumstances contended as well, and I will explore all of the contentions in due course.
For the reasons which follow, I will:
(a)not permit the re-opening of the parenting proceedings,
(b)order that the mother make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $1,650 and payable to Legal Aid New South Wales by way of fortnightly instalments of $25 commencing in about three months’ time; and
(c)dismiss all outstanding applications.
In order to determine these issues, it is important that I traverse the applicable law.
The applicable law
The mother contends that her application should be allowed to proceed because it meets the principle set out in the Full Court decision in Rice & Asplund which reflects a legal principle upon which the Court has relied when considering applications to re-open a parenting case which has already been determined on a final basis.
In these proceedings, s 64B empowers me to make a ‘parenting order’ which I can, provided I think it is ‘proper’ to do so (s 65D) in light of the objects of the Act and the underpinning principles of those objects: s 60B.
Any orders I make about a child must be orders determined by treating their best interests as the paramount consideration (s 60CA) and ss 60CC(2) and (3) set out the matters to which I must have regard to in doing so. This consideration of the child’s best interests is also mandated within s 65DAA.
As part of Division 12A, s 69Z specifies and mandates the principles the Court must adhere to when conducting child related proceedings. Whilst all the principles apply, in this matter, two of the principles strike a chord with me, and for that reason, are transcribed below.
Principle 1
(3) The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 4
(6) The fourth principle is that the proceedings are as far as possible to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
In summary, s 69ZN says this:
In giving effect to the principles for conducting child-related proceedings, the Court must:
1.consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;
2.actively direct, control and manage the conduct of the proceedings;
3.conduct proceedings in a way that will promote cooperation and child-focused parenting by the parties; (and finally)
4.cause the proceedings to be conducted without undue delay with as little formality and legal technicality as possible.
Before reflecting further on the circumstances of this case, it is important to remind myself of what Evatt CJ said in Rice & Asplund.
The principles which, in my view, should apply in such cases 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 … 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.
(my emphasis)
Sitting as the Full Court, the Honourable Collier J observed in King & Finneran [2001] FamCA 344 at paragraph [50] that:
……..The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
The Full Court in Marsden & Winch [2009] FamCAFC 152 (‘Marsden & Winch’) said at paragraph [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:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)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.
The Honourable Warnick J in SPS & PLS [2008] FamCAFC 16 – (‘SPS & PLS’) observed at [81] that when the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is done so because assuming the evidence of the applicant is accepted, there is insufficient change in circumstances to justify embarking on a hearing. His Honour went further to say that:
…..Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
In Carriel & Lendrum [2015] FamCAFC 43 (‘Carriel & Lendrum’), the Full Court said at [57]:
In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the children whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child or children to embark upon further litigation enquiring as to the child or children’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
The Full Court in Walter & Walter [2016] FamCAFC 56 – (‘Walter & Walter’) – at [51] confirmed SPS & PLS insofar as where, as a preliminary matter:
… the question of whether a sufficient change in circumstances has occurred … it is accepted that the applicant’s evidence should be taken at its highest.
In Stern & Colli [2022] FedCFamC1A 95 – (‘Stern & Colli’) – the Full Court confirmed the approach to be taken in these cases when at [35], the Full Court adopted the approach in another Full Court decision of Defrey & Radnor [2021] FamCAFC 67, where at paragraphs [21] and [22], the Full Court said this:
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 section 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 section 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 or her parents. There is a focus in an application of this kind upon the changes 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.
At [22], part of that paragraph says this:
…….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.
THE EVIDENCE
The father read or relied upon the following documents:
(a)Affidavit of Mr Masterson, filed 6 December 2021[1];
(b)Notice of child abuse, family violence or risk filed 6 December 2021;
(c)Exhibit ‘F1’- Outline of Case document of the father filed 25 May 2022;
(d)Exhibit ‘F2’, being a New South Wales Police Case Report which relates to the time period from 18 October 2019 to 15 January 2021 regarding allegations of sexual abuse perpetrated by the father on the child K;
(e)Exhibit ‘F3’, being a New South Wales Police COPS event created on 15 March 2021, which related to an attendance by the mother with the children at the Suburb O Police Station, which records the mother’s concerns about the children being neglected in their father’s care (malnourished) and the father having physically assaulted X – (a small laceration to his face).
[1] For convenience, references to any content within the affidavit of Mr Masterson shall be prefaced by the letters ‘’, followed by the numbered paragraph with the annexures identified alphanumerically.
The mother read and/or relied upon the following documents:
(a)her Response to initiating application filed 16 December 2021,
(b)Exhibit ‘M2’, being the affidavit of Ms Braxton filed 10 January 2022[2], which, as filed, was not in proper form and so with the consent of the father and the ICL, was orally attested to by the mother in court during the hearing of these proceedings on Monday, 24 October 2022;
(c)Notice of child abuse, family violence or risk filed 16 December 2021;
(d)Exhibit ‘M1’, being the undated outline of case document of the mother filed 19 July 2022, including the Minute of Order consisting of six paragraphs and received by the Court on 13 June 2022; and
(e)Exhibit ‘M3’, being the affidavit of Mr Masterson filed 31 March 2022.
[2] For convenience, references to any content within the affidavit of Ms Braxton shall be prefaced by ‘’, followed by the numbered paragraphs, with annexures identified alphanumerically.
The ICL read and/or relied upon the following documents:
(a)Exhibit ‘ICL1’, being the outline of case document filed by the ICL on 26 May 2022;
(b)Exhibit ‘ICL2’, being the single expert psychology report of Dr B dated 19 May 2018[3];
(c)Exhibit ‘ICL3’, being the tender bundle prepared by the ICL; and
(d)Exhibit ‘ICL4’, being the judgment of Cleary J delivered 19 June 2019.
[3] For convenience, references to any content within Exhibit ICL2 shall be prefaced by ‘the single expert report’ followed by the numbered paragraph.
The parties’ proposals
In summary, the father opposed the reopening of the parenting proceedings, whereas the mother submitted that the proceedings should be reopened.
The ICL also opposed the reopening, as well as seeking a costs order for each party to pay $1,650 in $25 instalments paid fortnightly.
In order to consider the various applications it is necessary for me to set out a short chronology of the parties’ circumstances, noting decisions such as SPS & PLS and Walter & Walter, statements of facts set out below shall constitute findings of fact unless otherwise expressed.
Chronology and analysis
Because this decision is being given orally, at times my recounting of the family’s history will exclude circumstances that were not significant in my decision-making process, and include an analysis, conclusions and/or findings that I have made, having reflected on the parties’ contentions arising from those particular asserted facts. I have read all the evidence that was filed in these proceedings and relied upon for the hearing.
In her reasons for judgment[4], the Honourable Justice Cleary records various features of the parties’ history. The parties’ relationship began in late 2011 and ended about a year later, in December 2012. In the meanwhile, X was born in 2012. Later that same month, (in 2012), parenting proceedings were commenced about X, and about six months later final parenting consent orders were made for X to live with the father and spend time with the mother as agreed, with the parties holding equal shared parental responsibility.
[4] See exhibit ‘ICL4’
It was common ground that following those orders being made, the parties continued to have an intimate relationship, which explains the birth of Y in 2014. The parties’ relationship finally ended in November 2014.
The mother complained that the children’s voice has never been heard, citing the failure by the single expert to interview the children during the preparation of his report. It was common ground that at the time X was electively mute and Y was deemed too young for any useful interview to be undertake.[5] The issue was known to the parties at trial. Self-evidently, the failure to interview the children in 2018 does not support the mother’s case of a significant change in circumstances.
[5] See the single expert report at [119]
At paragraph 112 of the reasons for judgment, her Honour Justice Cleary records the single expert’s prediction of events that may come to pass:
112.I suspect that over time, with strong orders, both parents will accede to orders that require for each to facilitate the contact of the children with the alternate parent, but such contact will not go smoothly and there will continue to be ructions in the co-parenting arrangements. Likely, this conflict will result in further involvement of FACS.
At paragraph 113 of the reasons for judgment, Her Honour forecast that the worst possible outcome for the children would be that each parent continues the dispute about who was the better parent but to avoid this, means a cessation of the critical comments made to third parties, especially the children.
At paragraph 110 of the single expert report, the single expert records the mother as presenting as a rather vexatious and histrionic complainant, making it hard for the author to separate out what might be genuine concerns from those designed to destroy the father’s reputation.
At paragraph 117 of the single expert report, there is an assessment of both parents following a psychological interview with each of them. The single expert records that both parents have some difficult traits, but insufficient to meet a formal mental health diagnosis.
Further on, the single expert opines that both parents have no mental health diagnosis but, “both parents have difficulties managing respectful relationships and each in their own way attempts to undermine the other”.[6]
[6] See the single expert report at [132]
The reasons for judgment explore the various concerns raised with Her Honour, concluding that the parties’ relationship is “volatile and mutually controlling”.[7]
[7] See ‘ICL4’ at [111]
At paragraph 118 of the single expert report, it is opined that X has also been traumatised by the conflict between his parents and, to that extent, his current presentation is hard to discern other than he is experiencing some anxiety. Insofar as Y is concerned, the single expert records that she does not present with any significant concerns. Further on, it is recorded that the children have established attachments to both parents and their extended family members and any substantial change to the current status quo is likely to have an impact upon the children.[8]
[8] See the single expert report at 124
This observation was accepted by the Court at trial[9], where the Court opined that to change patterns is to de-stabilise, with particular adverse consequences for X, given his vulnerabilities at the time. At the time of the single expert report and up to the present, the children have lived with the father and spent time with the mother for years.
[9] See exhibit ‘ICL4’ at [66] & [67]
About four months after the final orders were made, the mother says that N sent her a text message asking her to check on K. Attached and marked annexure A to Ms Braxton’s affidavit are text messages between K and N which include allegations that K was the victim of sexual intercourse or rape and physical assaults perpetrated by the father, and of the father forcing K to touch him, (inferentially in an inappropriate sexual manner). The messages suggested that at least one event took place before Y was born in 2014.
Exhibit ‘F2’ is the Case Report for the police investigation that followed the mother reporting the allegations on 18 October 2019. That report identifies that at times the investigation has stalled because of K’s reluctance to speak and ultimately was suspended in January 2021 for that reason, which remains the current status of the report and the investigation. N has not given a statement. On two occasions during the course of the investigation, K did speak with police:
(a)On 11 June 2020, she described the father as being “handsy”, but that wasn't the “bad stuff” that happened but in the absence of a disclosure, the investigation was closed and then, about a month later,
(b)on 16 July 2020, K made a more detailed statement about events when she was about eight (8) years old, (mid-2013) when she, her mother and her siblings were at the father’s home. The statement discloses that K and the father were in a room alone together whilst the mother was in another area of the house. The allegations consist of the father inappropriately touching K’s torso and buttocks, and then making her touch his penis for a period of time, before he suddenly resumed playing a game on his computer. An investigation followed, but stalled again for reasons which appear to include K’s reluctance to speak further.
On the page marked 34 of exhibit ‘F2’, there is a record dated 15 January 2021 that the mother agreed with the proposal from the Police to suspend the investigation pending further advice from K that she wished to speak to them. On the same page but underneath that record, is an undated entry recording that K had recently been admitted to the P Unit at the Q Hospital, (‘the Q Hospital’’), in relation to her mental health and a plan in relation to suicide. Although that record is undated, K’s hospitalisation appears to have occurred between 18 and 21 November 2020, because on 1 December 2020 there is a record of the mother advising that she and K would not be attending for interview because K wasn't up to coming in, and the Police then talked to the mother about the court process being a long one and whether K’s mental health would be sufficiently resilient to sustain those delays.
During submissions, I heard from the mother that she made the decision not to pursue the matter any further because K was too upset. Exhibit ‘F2’ records that the investigation was closed over 18 months ago. In her affidavit at -7, the mother says that K has never disclosed to her the events –
… other than when I asked where I was at the time of the assault, as I never left her alone. I was either cooking or seeing to the other kids outside.
At -9, the mother estimates K was seven (7) years old at the time of the assault on K and pointedly follows this up by saying:
… the same age as [Y]. I suspect there has been sexual assaults from their father towards [X] and [Y].
There was no reason for the mother to include this in her affidavit, except to invite me to inferentially find that the father poses the same risk to Y and possibly X because of the similar ages of the two girls and of the age of X.
In September 2021, the mother unilaterally took, it seems, both children to the Q Hospital about concerns she had about one or both of them being sexually abused or neglected by the father. Annexure B of the father’s affidavit is a discharge summary from the hospital about X, which records, in part, the mother saying that at no time has her son verbalised that the father has touched him inappropriately or been violent towards him. Whilst there is some commentary about X’s failure to thrive, no notes of concern are recorded, and the treatment plan is for psychological support to build rapport.
On 1 October 2021, the father stopped time because of the mother’s behaviour in taking the children to hospital.
On 29 November 2021, the mother collected the children from the R School, (‘the children’s school’), and retained them, contrary to the final orders.
On 1 December 2021, the father received an email from the principal of the children’s school alerting him to the mother’s attempt to arrange home schooling for the children and suggesting that he seek the making of a recovery order. Later that month, these proceedings were initiated.
On 6 December 2021, despite being made aware of the surgery booked in for the extraction of one of Y’s teeth, the mother did not take the child.[10] In relation to Y’s dental issues, the mother says in her affidavit[11] that while she cancelled a surgical appointment for the removal of a tooth, she did reschedule a dental appointment at which time the tooth was successfully extracted. The mother complains that there are five more teeth that need work and that she has been excluded from medical and dental appointments. Annexed at D of her affidavit are various dental documents from July 2021, all addressed to the mother and regarding Y having dental caries.
[10] -23
[11] -24
Between December 2021 and April 2022, four DCJ helpline assessments were conducted.[12] The parties’ competing concerns about the risks that the other posed to the children were explored with the ultimate outcome from the final assessment in April 2022 being that the family was screened out as non-ROSH (risk of significant harm).
[12] See exhibit ‘ICL3’
On 17 December 2021, the Court made two sets of parenting orders which, (in the first set), included a requirement for the mother to return the children to the father at the S Police Station later that day following her alleged inability to drive, and then a second set permitting the police to recover the children and return them to the father.
The mother says that X has never been psychiatrically assessed in accordance with Order 6 of the final orders. At -16 and 17, she says that even if he has been taken, she has never seen the report. From the orders, the father was afforded sole parental responsibility, and I cannot see that the father was obliged to provide the mother with a report.
It was common ground that despite the mother being aware of K’s allegations in October 2019, the mother has not commenced proceedings in this Court to suspend or “rescind” (to use her language) the final orders, meaning that the children continued to live on an unsupervised basis with the father for over two years before the mother chose to inform the Court of her concerns about the risk he posed to them.
In submissions, the Court heard that the mother had explored other options via the police, Legal Aid and speaking to solicitors, but it seems from her submissions that ultimately, she decided to take a break for the sake of her own mental health or, alternatively, that she “did not know how to go about it”, which, respectfully, makes no sense given her previous submission about approaching Legal Aid, pro bono solicitors and her past experience with this jurisdiction, going back to 2012.
On 16 February 2022, the matter was before the Court and orders were made including for a s 69ZW report to be produced by the DCJ, and interlocutory consent orders were made withdrawing the mother’s recovery order application, restraining the mother from changing the children’s school and for the father to file and serve an affidavit addressing certain issues (such as a dental health plan for Y, his current GP mental health plan and a report from his treating psychologist about his current diagnosis and treatment). For ease of reference, the orders shall now be described as the February 2022 orders. As part of the February 2022 orders, time between the children and the mother was to commence on 18 February 2022.
Exhibit ‘M3’ is the father’s affidavit, filed 31 March 2022, which in summary deposes to:
(a)Y not having a current dental plan, there being no documentation to provide;
(b)The father having fortnightly consultations with Ms T (‘MS T’) who is a counsellor at U Centre, being the father’s nominated provider for the purpose of him gaining employment. Ms T says that she commenced seeing the father on 25 January 2022 when he disclosed to having a longstanding history of psychological distress. The results of the father’s completed Depression, Anxiety and Stress Scale (‘DASS’) showed him experiencing depression in the mild range, anxiety in the extremely severe range and stress in the severe range. As a result of his presentation, a request was made by MS T for a Centrelink medical certificate to be produced with a view to re-assessing the father’s capacity for work and the level of service that he currently accesses via Centrelink;
(c)Dr V completed a Centrelink medical certificate on 21 February 2022 that records the father as having a diagnosis of GAD (generalised anxiety disorder) and possibly, PTSD (post-traumatic stress disorder) with him having symptoms of being withdrawn, anxious and struggling to cope. The certificate also records that there is a planned MH (mental health) care plan.
I pause here to note that the final assessment by the DCJ postdates these medical records and there is no evidence that the DCJ or, indeed, the police hold any current concerns for the children, nor was there any other independent evidence before the Court to support any risk that the children may be exposed to, arising from the father’s current mental health status or ability to cope, whatever that may mean.
There was no evidence before me that the mother had complied with the February 22 orders insofar as at least approaching her doctor to obtain a GP mental health plan and referral for a comprehensive psychological assessment and treatment plan (if so recommended). Given there was a comment within the ICL’s outline of case document about this issue but there being a lack of oral submissions from any of the parties, I have not made any findings one way or the other.
At -32, the mother says that she believes the father has underlying conditions and that the father knows how to get around the psychological tests, appearing to say that either these conditions or his ability to get around tests is a result of extensive drug use over the previous years. The mother then invites the Court to draw conclusions about the adverse consequences of these circumstances on his long-term mental health and his capacity to promote healthy relationships between the children and others besides himself, citing multiple studies. The weight I can give to this aspect of the mother’s evidence is zero, as she is not qualified to give such opinions.
The mother has concerns about the father’s non-compliance with the February 2022 orders insofar as she has never seen a psychological report about him. The ICL submitted that if the father did not have a treating psychologist, then he cannot possibly be found wanting in that regard. I tend to accept those submissions particularly given the contents of MS T’s report and the aspirational comment within the medical certificate about a planned MH plan.
In her affidavit at -13 and 14, the mother alleges that the children are at risk in the father’s care because:
(a)the father’s eldest child is overweight and X is underweight,
(b)Y has rotting teeth,
(c)J, (another child of the father’s), picks her face which the mother asserts is psychologically linked to anxiety,
(d)Y having a broken arm due to multiple incidents caused by inappropriate supervision,
(e)a strange dog arriving in the backyard where Y was and the father was not, and
(f)X requiring his eye to be glued after walking into a doorknob.
In support of her contentions about X’s “failure to thrive”, various documents were annexed to the mother’s affidavit including a medical referral to a paediatrician (as submitted by the ICL) dated 6 July 2021. The mother submitted (and I accept) that the purpose of the referral was for X’s ‘failure to thrive’ (‘FTT’). A series of statistics are recorded but no particular urgent concern is recorded in the document, and I was not shown the paediatric report which would have addressed the referral. When I asked the mother about this deficit in her evidence her answer was unsatisfactory, particularly in light of all parties having had the opportunity by now of issuing subpoenas if they could not get the information any other way. Tellingly, insofar as whether this FTT concern was a significant change, the mother also annexed earlier medical reports which all include references to X’s failure to gain weight dated between September and November 2013.
In addition, as alluded to earlier, the DCJ have been actively involved with this family between December 2021 and April 2022 with no ongoing investigations as a result and despite the mother’s raft of complaints.
The mother complains that the children are being taken to Narcotics Anonymous meetings, but not extracurricular activities with the mother opining that the children could be at risk of exposure to harm from potentially intoxicated attendees and there being no opportunity for them to develop their passions.[13]
[13] -26
In various parts of her affidavit the mother complains of the father not keeping her informed of decisions he makes about the children’s health and/or the outcomes or reports arising from their treatment.
Order 3 of the final orders requires the father to take various steps when he is required to make a decision about a long-term issue.
No definition is contained within the final orders about what a long-term issue is, but inferentially it must mean something less than the definition of “major long-term issue” as set out at section 4 which should be read in tandem with various sections of the Act related to parental responsibility.
Other than the permanent extraction of teeth (which the mother was aware of), none of the complaints brought by the mother would appear to have “long-term” implications for the children. Not to put too fine a point on it, I heard nothing to suggest other than that Y’s broken arm has healed and X’s glued eye mended. There appears to be nothing in X’s presentation in either household that has changed since concerns were first raised in 2013 which would suggest that the mother is already aware of his history of FTT, although the good news is that some of his mutism behaviours appear to have abated.
At -29, the mother opines that the father’s biological children to another person should be returned to that person’s care because she has seen him mistreat and abuse them and that J has negative views about single mothers. No dates are given about when these alleged unspecified events occurred. As such, no weight can be placed on this evidence as supporting the re-opening of the parenting proceedings, about different children, but rather the evidence suggests a continuation of what was recorded at trial about the mother’s poor attitude towards the father and how he parents.
Both parties made complaints about each other failing to comply with the final orders about when the children were due to either live or spend time with them, see, for example, -18 and 19 and -22 (albeit there appears to be a typographical error insofar as the tendered material suggests that the mother unilaterally withheld the children on 29 November 2021, not in October which is borne out by the following paragraph about when Y’s dental surgery was to occur [being in December]).
Analysis – Father’s application to dismiss
In line with the authorities leading up to Stern & Colli, the first stage of my task is to make findings of fact as to what change in circumstances there have been since the making of the final orders.
In summary, the mother submits that the change in circumstances mainly boils down to:
(a)her ignorance of the sexual assault allegations against the father regarding K which only surfaced four months after the trial;
(b)the father’s failure to comply with various orders including having had him psychiatrically assessed, the provision of reports about him and Y arising from the February 2022 orders and keeping her informed about event and decisions regarding the children’s health more generally;
(c)the deterioration in the father’s parenting capacity brought on by his deteriorating mental health is evidenced by the Centrelink medical certificate and MS T’s report earlier this year;
(d)the ongoing neglect of the children including attending to Y’s teeth and X’s continuing FTT issues; and
(e)the failure in permitting the children’s voices to be heard by the single expert.
If I consider CDW v LVE [2015] WASCA 247; (2015) FLC 93-683; 54 Fam LR 297 (‘CDW v LVE’), it was within the contemplation of the parties at trial about the children not being interviewed and X’s FTT issues.
As for the raft of concerns about the father’s ongoing parenting of the children including issues of neglect and his mental health, I am reminded of the single expert’s comments about the mother presenting as a rather vexatious and histrionic complainant making it hard to separate out what might be genuine concerns from those designed to destroy the father’s reputation. Here, the DCJ have been involved, as have the police and yet despite all of the mother’s alleged concerns, no action has been taken to address those concerns (let alone removing the children from the father) and no independent evidence points to the children being at risk because of the father’s deficits. In my view, the mother’s attitude in complaints suggests that the forecast given by the single expert witness about future DCJ involvement has come to fruition. Nothing has changed.
The mother may well have a legitimate case for contravention proceedings, as would the father against her. That does not mean a re-opening of the parenting proceedings. At times, both of them have failed to comply with the final orders. I am asked to find that the behaviours rise to the level of a finding of significant change in circumstances. In my view, it does not. Ultimately, the time regime for the children has resumed and there is no evidence to suggest that either child has been placed in harm’s way because of any failure by the father in obtaining a report and/or informing the mother of the need for him to make a long-term decision. Rather, the history demonstrates exactly what the single expert anticipated and what the Court warned against happening: continuing disputes about who is the better parent and the involvement of the DCJ.
Insofar as allowing the children’s voice to be heard now, because it was not back then, as Evatt CJ opined in Rice & Asplund, change is an ever-present factor in human affairs, including children developing and getting older. Even where there was evidence of X making an adverse comment to the mother, she accepts that it was possible he was simply telling her what she wanted to hear. Of particular note, the mother is recorded by hospital staff in September 2021 as saying that X has not made any adverse disclosures of a sexual or physical nature about the mother, so one wonders what he has to say, except that he remains acutely aware that his parents continue to intensely dislike each other, the impacts of which were alluded to within the single expert report and within the reasons for judgment.
That leaves K’s sexual assault allegations. This is clearly a significant change in circumstances as postulated by Rice & Asplund, but where does this take me and does it mean I should re-open and re-visit the entirety of the final orders?
In line with Stone v Colli, the second stage of my inquiry is to assess whether or not the change in circumstance is sufficient to provoke a new inquiry (through the prism of the children’s best interests). In other words, has a prima facie case been established of a changed circumstance that would justify a fresh round of litigation as being in the best interests of the children?
In my view, the change of circumstance is insufficient to provoke a fresh trial for two main reasons.
Firstly, a combination of factors causes me to find that the utility in re-opening the parenting proceedings with a view to changing the final orders is extremely limited because:
(a)Firstly, it is frankly inconceivable that a mother who is so quick to criticise the father about all manner of perceived parenting deficits (such as allowing a strange dog into a backyard with Y), would not immediately commence proceedings to suspend the final orders until the sexual abuse complaint was investigated unless she herself had doubts about the alleged risk posed by the father;
(b)Secondly, the mother’s motivation after the two-year delay between when the mother became aware of the complaint and when she did something about it in this Court was not because she was worried about the children’s welfare, but because she was responding to a recovery order application brought by the father as a result of her actions in withholding them.
(c)Next, in September 2021, the mother attempted and clearly failed to obtain evidence of the children being harmed via her attendance at the Q Hospital and, even on her own account, X has not made any such disclosures; and
(d)Finally, based on K’s recent mental health history and variable interactions with the police culminating in them suspending the investigation over 18 months ago, there is extremely limited prospects that further disclosures would be made now (noting that in any event it is not the role of experts of this Court to conduct the types of interviews that the police routinely do when these sorts of allegations come up).
Secondly, the detrimental impact on the children from re-litigation would be profoundly adverse to their best interests, see section 60CC(3)(l), Marsden & Winch at [58] and Carriel & Lendrum at [57]. This is because:
(a)X is a vulnerable child who in the past chose to be electively mute although it seems that at least now he is conversing in both a home and school setting. In the written evidence there is a comment from the father to the effect that when his son is in a familiar setting and/or is engaging with someone he is familiar with then he will speak. The child expert opined in 2018 that X has been traumatised by the parental conflict and he experiences anxiety. Frankly, there was nothing to suggest that anything has changed for him, with the most compelling example being his recent engagement at the Q Hospital instigated by the mother. When asked questions by the medical staff at the Q Hospital, the only formed words he expressed were, “am not”, (which was recorded as being almost incomprehensible), these two words being said in response to a comment that he was behaving like a two-year-old. Otherwise, it appears his recorded responses to simple questions must have been to “yes” and “no” questions which may have required only a physical response such as a head movement. When asked to submit to a physical examination, he simply rolled away and made grunting noises.
(b)During observations with the single expert, Y appeared untouched by the dispute. Whether that remains the case now is unknown, but she is now eight (8) and clearly her maturation since 2018 would indicate she would have more cognitive ability and understanding that her parents are in conflict, which would be heightened further if she was required to submit to further interviews and observations conducted by court child experts, as the mother expects the Court to conduct in order to (at the very least) obtain her views.
(c)In addition, I accept the ICL’s concerns about the potential for the father’s mental health to be adversely impacted by re-litigation to such an extent that his parental capacity is impaired. The trial judge reflected on the single expert’s opinion about the consequences of changing the children’s living arrangements with the father. At ‘ICL4’ paragraph [67], the trial judge said that to change patterns is to de-stabilise and observed that to do so would pose difficulties for X. Given the father’s recent recorded difficulties, further litigation may well push him over the edge in his capacity to cope, which may have consequences of a significant calibre for the children in terms of future living arrangements.
(d)Finally, and despite the comments within the reasons for judgment about the mother engaging in innuendo, reputation destruction and a focus on discrediting the father in order to achieve her goal of the children living with her,[14] the mother continues to invite others, including this Court, to draw bows that are far too long, with future litigation posing a real potential of the father’s role being undermined even further than perhaps it already has. For example, the mother’s evidence is that:
·The father poses a risk of sexual harm because K was a similar age then as Y is now, without any evidence that Y has made any disclosures and knowing that K has essentially refused to speak further about her allegations;
·Secondly, the father’s past drug use and alleged manner of getting around psychological assessments means there are adverse consequences on his long-term mental health and his capacity to promote healthy relationships between the children and others besides himself based on self-described multiple studies without any evidence that this has occurred including any decline in her relationship with the children; and finally,
·Without any specification, the mother says that the father’s biological children to another person should be returned to that person’s care because the father has mistreated and abused them.
[14] See [89] & [90] of ‘ICL4’
The mother wants to re-agitate where and with whom the children should live and what time the children should have with the other parent. This necessarily engages the twin primary considerations and at least reflects on the additional considerations at s 60CC. But why would I re-open the parenting dispute if the evidence before me is insufficient to disturb the findings made at trial about any of these issues? As far as I can see, the mother continues to engage in behaviour that is either:
(a)illogical, (leaving the children in the home of a sexual predator for two years without coming to Court to change the final orders); and/or
(b)blatant reputational damage to the father’s role in the children’s lives, the significance of which was a factor in why the Court decided not to change the status quo back in 2019 and allocated sole parental responsibility to him as a result, (in part) because of the high conflict co-parenting relationship.
The potential exposure that renewed litigation will pose for these children to parental conflict is immense, given the mother’s recent illogical and disrespectful views of the father and it is not a risk that I am prepared to take.
For the reasons above, I am not satisfied that the parenting proceedings should be re-opened. It was clear that the Honourable Justice Cleary was aware of the deficits that both parents posed in their co-parenting relationship and as parents more generally. She weighed this evidence up as well as the children’s vulnerabilities and their potential adverse reactions to a change away from their experience of living primarily with the father.
From where I sit, nothing has changed in either the father’s ongoing mental health issues, (other than perhaps a diagnosis of GAD) or in the mother’s view that her parenting ability is better than the father’s. Clearly, they have different views, (such as about whether Y needed general anaesthetic to have a tooth removed) but at the end of the day, Y got the treatment she needed from treators engaged by the mother and/or the father. As for X, it appears his selective mutism has improved to a degree, and otherwise, there was no evidence to suggest his health is in decline except the real potential that his vulnerabilities (as observed by Cleary J) will be heightened if he is exposed to further parental conflict (one example being his behaviours at the Q Hospital late last year).
For the reasons above, I am satisfied that the mother has not established a prima facie case of changed circumstances that would justify embarking on another contested parenting hearing as being in the children’s best interests.
The dispute and applicable law - Costs
Turning then to the issues around costs. The ICL sought that each party pay $1,650 by way of fortnightly instalments of $25.
It was common ground that the father is legally aided for these proceedings, which commenced last year.
It was common ground that the mother is gainfully employed and has not been in receipt of legal aid during these proceedings.
The mother resisted the application with her submissions mainly premised on financial hardship: see s 117(4)(b).
Section 117(3) permits me to make an order about the ICL’s costs provided I think it is just, having regard to s 117(2) and by extension various other subsections including s 117(2A) and the Rules.
In the exercise of this broad discretion, the Court must take into account various considerations as set out in s 117(2A) of the Act. Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out various methods by which costs can be calculated, and in doing so, may have regard to the considerations described in subrule 12.17(2), including the reasonableness of each party’s behaviour in the proceedings, including by having regard to the matter set out in subrule 12.08(2). Consideration of r 12.08 is not strictly relevant to the context before me because there was no submission being made that the ICL’s costs were anything other than fair, reasonable and proportionate.
No one consideration under s 117(2A) prevails over any other, and the weight to be accorded to each of the relevant factors is at my discretion – see Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157 at [24]. There is nothing to prevent just one consideration as set out in s 117(2A) being the sole foundation for an order for costs = see PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158 at [41].
Impecuniosity is not a bar to a costs order being made- see Cross & Beaumont [2008] FamCAFC 68 at [60] and Nada & Nettle (Costs) [2014] FamCAFC 207 at [11].
THE EVIDENCE, DISCUSSION & ANALYSIS – Costs
There was no evidence of the mother paying any costs for these proceedings. Despite no formal evidence from her, because she was a litigant in person, I allowed her to make submissions about her financial circumstances, which in summary were as follows:
(a)Each fortnight she receives up to $1700 in the hand consisting of about $800 in nett income, $500 in child support for the two children who live with her and $300 in Centrelink benefits, (the latter amount which I will disregard for the purpose of this exercise).
(b)Each fortnight she pays $1500 in rent, leaving only a minimal amount left over for her daily costs of living.
(c)She has $98 in savings.
In addition, I have regard to her own evidence that at short notice at the end of last year she was able to meet the costs of dental surgery for Y totalling $244. This capacity to pay outgoings is somewhat at odds with her earlier submissions about the parlous state of her finances and caused me to have some disquiet about the weight that I could give to the mother’s submissions in that regard.
It was incontrovertible that the main reason the proceedings were instituted was because of the mother’s decision to unilaterally withhold the children contrary to the final orders, and her conduct was then exacerbated by the need for not one, but two sets of parenting orders on 17 December 2021, the second of which involved the making of a recovery order actioned by the Police.
The mother has been wholly unsuccessful in her attempt to re-open the parenting proceedings.
Given her past capacity to find money at short notice when necessary, if I defer the date when the mother is to commence making the repayments as sought by the ICL, I am confident that she has the capacity to again re-arrange her finances as may be required by this new obligation.
Although I have taken into account the mother’s submissions, I am satisfied that given the circumstances, (particularly as to her conduct, her lack of success in having the proceedings re-opened and my view that a delayed start for repayments should be made), it is just for me to make a costs order against her because I do not accept that the terms of such an order will cause her financial hardship.
Accordingly, I intend to make an order as sought by the ICL as there will be no financial hardship occasioned upon the mother.
This is because she will be afforded a three month reprieve before she has to start paying so that she has sufficient time to get her finances in order to begin making the payments.
For the reasons above, the parenting orders I make are in the best interests of the children, and the costs order and notation I make are just and appropriate.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Kearney delivered orally on 27 October 2022. Associate:
Dated: 28 November 2022
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