Matthews & Norris (No 2)
[2024] FedCFamC1F 844
•6 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Matthews & Norris (No 2) [2024] FedCFamC1F 844
File number: NCC 2226 of 2015 Judgment of: MCNAB J Date of judgment: 6 December 2024 Catchwords: FAMILY LAW – PARENTING – Where the parties currently have property proceedings on foot – Where the mother seeks to reconsider parenting orders by way of her orders sought in her Response to an Initiating Application – Where the father seeks dismissal pursuant to s 65DAAA of the Family Law Act 1975 (Cth) – Where there has not been a significant change in circumstances – Where the mother largely seeks to reagitate issues which were already determined – Where it is not in the best interests of the child for the parenting orders to be reconsidered – Mother’s Response to an Initiating Application as it relates to parenting proceedings dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAAA Cases cited: Carlyon & Graham [2024] FedCFamC1F 443
Matthews & Norris (No 3) [2017] FamCA 461
Rice & Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 11 September 2024 Place: Melbourne Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Matthew Oldham Barrister & Solicitor Counsel for the Respondent: Litigant in person ORDERS
NCC 2226 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MATTHEWS
Applicant
AND: MS NORRIS
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
1.The orders sought in paragraphs 1-4 of the final orders sought and the interlocutory orders sought by the respondent in her Response to an Initiating Application filed 4 March 2024 be 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Matthews & Norris has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCNAB J
INTRODUCTION
This matter involves Mr Matthews born 1967 (“the father”) and Ms Norris born 1973 (“the mother”). The child to the relationship is B born 2010 (“the child”). The parties have an extensive history in this Court and property proceedings between them as of this hearing are still ongoing.
BACKGROUND
By [1]-[4] of the respondent's Response to an Initiating Application filed 4 March 2024, she seeks that parenting orders made by Austin J on 30 June 2017 be reopened (Matthews & Norris (No 3) [2017] FamCA 461).
On 30 June 2017, Austin J made the following parenting orders:
(1)All former orders relating to the child B, born … 2010, are discharged.
(2)The father shall have sole parental responsibility for the child.
(3)The child shall live with the father.
(4)Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
(5)Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.
(6)The father shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the child.
(7)Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current postal address, mobile telephone number, and email address.
(8)Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of the child from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on that Watch List for a period of 12 months.
(9) The parties are at liberty to provide a sealed copy of these orders to:
(a)Any authority entitled to issue Australian passports;
(b)Any authority with control over international departure points in Australia;
(c)The Commissioner of the Australian Federal Police; and
(d)The principal of any school attended by the child.
The reasons for making the orders are explained at [87] of the judgment:
87.The evidence easily rebuts the presumption of equal shared parental responsibility (s 61DA(4)). The parties cannot share responsibility for the child co-operatively. The mother said in cross-examination she “refuse[d] to go into any conversation” with the father and she will never speak with him again. It would be impossible for them to discharge their legal obligations (s 65DAC) and they would likely be in permanent deadlock if an order for equal shared parental responsibility was foisted upon them. One party must have exclusive parental responsibility for the child and it must be the party with whom she lives. Both parties’ proposals recognised that fact and the Family Consultant recommended that outcome.
(Footnotes omitted)
At [88]–[89] his Honour found that the father had a greater capacity to provide for the child's emotional needs and that he did not present a risk to the child, making findings to that effect. At [90]–[93] of the judgment, his Honour explains the reasons for making Order 3 which provides for the child to live with the father but does not prescribe any time for the child to spend with the mother:
90.If the child instead lived with the mother in New Zealand, the father would be eliminated from her life. The mother could never bring herself to support the child’s relationship with him. The Family Consultant said she was “wholly negative” about him. She thinks he is a “compulsive liar” and was responsible for “destroying [her] whole life”. The child is well aware of her dislike of the father. Her relationship with the father is too important to allow the mother to annul it, because there is no justification for that outcome. The child is equally attached to both parties, but only the father is willing to allow her the freedom to retain her relationships with both. The child should therefore live with the father.
91.At least implicitly, the mother knows that is the result dictated by the evidence. At a supervised contact visit in April 2017 she gave the child a letter to read. She admitted in cross-examination the letter informed the child she did not blame her for not telephoning her on her birthday, but more importantly, that she would be severing contact with her. When it was suggested to the mother it was emotionally abusive to force that information upon the child, the mother said “no, she needs to know”. The mother agreed she was effectively saying “goodbye” to the child in that letter. Obviously, she would have no need to say goodbye to the child if she expected the child would live with her. She expects the child will live with the father and she was making good on her promise to withdraw from the child’s life.
92.Given the child should live with the father, the mother’s trenchant intention to sever her relationship with the child in that eventuality means there is no need to consider supplementary orders enabling the child to spend time or communicate with her. When that alternative option was offered to the mother in cross-examination she rebuffed it. There is no utility trying to arbitrarily fashion orders to regulate the child’s future interaction with her when it probably will not happen. The father said it would be “horrendous” for either party to be shut out of the child’s life, so if the mother later relaxes her attitude and seeks a relationship with the child, the father would probably facilitate it.
93.The mother said she would not even avail herself of communication orders. In any event, telephone communication was a bone of contention between the parties. The mother criticised the father for failing to comply with current communication orders, but he credibly refuted her claim. He denied that “only two calls” made by her in the last few months successfully connected. He said the child regularly called the mother and asserted he kept records of the calls. He produced his records pursuant to the call made for them and was not thereafter successfully challenged. The child’s attempted call to the mother on Mother’s Day 2017 was verified by the father’s records. Emails sent by the father to the mother in May 2017 proved he believed the mother had changed her telephone number and he tried to establish the new number on which the child should call her, but the mother admitted she did not reply to his emails. The mother said she records all of her conversations with the child, which is not a practice that should be tacitly encouraged by granting more telephone communication anyway. It remained unclear what, if any, communication orders the father proposed because he purported to press one but abandon another. No communication orders are made in the face of the mother’s evidence.
(Footnotes omitted)
PROPOSALS
By [1]-[4] of her Response to an Initiating Application, the mother seeks final orders that:
1.The applicant be restrained from making any further applications in any court, without leave of the family court.
2.The parents have joint parental responsibility of the Child.
3.The Child decided where she wants to live.
4.The parent who is not living with the Child, is to have a minimum of 55 days with the child during the school holidays. The cost of the travel is to be meet by the father.
She seeks interim orders, inter alia, that:
1.The parties have joint parental responsibility of the child [B].
2.That the child remain at [CR School].
…
7.The mother be able to communicate with the school and treating professionals.
8.The child to spend a minimum of 10 nights in New Zealand with the mother for terms 1, 2 and 3. And a minimum of 25 nights with the mother including Christmas day at the end of term 4.
The father seeks that the mother’s application in relation to parenting matters be dismissed.
ISSUES FOR DETERMINATION
At this juncture of the proceedings, the only issue for the Court’s determination is whether the Court ought to reconsider final parenting orders pursuant to s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”).
EVIDENCE
In support of her application, the mother relied on the following paragraphs from her affidavit filed 4 March 2024:
(1)[78]-[80];
(2)[82]-[88];
(3)[102]-[105];
(4)[111];
(5)[407]-[409];
(6)[427]-[466];
(7)[480]-[494];
(8)[534]-[535];
(9)[630]; and
(10)[632]-[674].
The father had filed material relating to this application, but the mother objected to reliance on the material on the basis that it was filed late. The father’s counsel explained the delay was caused by the mother failing to specify whether she was pressing the application and, if so, the material she relied on. Notwithstanding, the father conceded that he would not seek to rely on the material filed.
RELEVANT LAW
This application to reopen parenting orders is governed by the operation of s 65DAAA of the Act which provides:
1.If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
a.the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
b.the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
2.For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
a.the reasons for the final parenting order and the material on which it was based;
b.whether there is any material available that was not available to the court that made the final parenting order;
c.the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
d.any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
3.Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
4.The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
This section codifies the principles established in Rice & Asplund (1979) FLC 90-725 and the cases applying it. As was noted recently in Carlyon & Graham [2024] FedCFamC1F 443 at [46]-[48] by Schonell J:
46There is nothing new in the provisions contained in s 65DAAA rather it is a codification of well-established jurisprudence.
47It has been clearly articulated in numerous authorities that the court should not “lightly entertain an application to reverse” an earlier order unless it is satisfied that there are changed circumstances It was sometimes inelegantly described as the rule in Rice & Asplund.
48The rationale for the existence of the so-called rule is that the best interests of children are not promoted by endless litigation and that once the court has made a determination, unless there has been established a change of circumstances, then the court should not engage in further litigation in relation to the child. In that respect as long ago as in Freeman and Freeman (1987) FLC 91-857, Strauss J said at 76-470–76-471:
… Once the court … 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 prerequisite to their well-being. …
In making any parenting order, s 60CA of the Act governs that the best interests of the child is the paramount consideration and in determining the best interests I have regard to the matters set out at s 60CC of the Act:
2.For the purposes of paragraph (1)(a), the court must consider the following matters:
a.what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
i.the child; and
ii.each person who has care of the child (whether or not a person has parental responsibility for the child);
b.any views expressed by the child;
c.the developmental, psychological, emotional and cultural needs of the child;
d.the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
e.the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
f.anything else that is relevant to the particular circumstances of the child
When considering the matters at s 60CC(2)(a), s 60CC(2A) sets out that the court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child and any family violence order that applies or has applied to the child or a member of the child’s family.
CONSIDERATION
Section 65DAAA(2)(a)
The reasons for the final parenting order and the material on which it was based
The reasons of his Honour are set out at [4]-[5] above. The evidence upon which the orders were made are set out in the judgment at [25]-[30]. The mother relies on allegations of family violence prior and subsequent to the final orders being made as a reason for setting the orders aside.
Allegations of Family Violence Prior to the Final Orders
In her evidence, the mother recounts the abuse she alleges that she suffered by the father, including:
427.Throughout our relationship, [Mr Matthews] subjected me to relentless emotional abuse and verbal assaults…
428.Throughout my relationship with [Mr Matthews], I endured both physical and emotional abuse. [Mr Matthews] subjected me to regular taunts, insults, and belittlement, causing significant distress and emotional harm…
…
534.…There also the fact that the orders are clearly wrong in allowing our abuser to be able to control and abuse us further…
…
674.Due to the abuse that [the child] and I are still suffering when [Mr Matthews] is the perpetrator property orders need to be dismissed, with costs, and parenting matters re-opened.
Throughout [427]-[466] the mother recounts the alleged abuse perpetrated by the father as well as her current circumstances (which largely goes to her financial situation). The mother’s deep animosity, the existence of which featured in the judgment, is plainly maintained and expressed by the mother at [466] in these terms:
466I express my vehement opposition to returning to Australia for a final hearing, as I fear for my safety and well-being in [Mr Matthews’] presence. I firmly believe that [Mr Matthews] poses a serious threat to my life and physical integrity, and I do not feel safe anywhere near him. This fear extends beyond the courtroom and encompasses all interactions outside of it, where I perceive myself to be at considerable risk. I have concrete reasons for these concerns, as [Mr Matthews] has openly admitted to attempting to kill both myself and our child in late 2016. Given this admission and his past behaviour, I cannot overstate the genuine fear I harbour regarding my safety in his presence.
The issues raised of family violence were dealt with by his Honour who made findings in his reasons for judgment. At [36]-[66] his Honour outlined the allegations of family violence between the parties:
41.When the Family Consultant first conferred with the family in March 2016, several weeks after the consent orders were made, she reported:
Both parents have identified a history of serious family violence between them with police having been involved at times….Each alleges the other was the perpetrator of the violence…
42.The Family Consultant subsequently reported:
It is clear the parental relationship was turbulent…The allegations are mutual with each alleging that the other parent has had difficulty containing their anger…there is independent evidence to support both parents’ versions of events.
(Footnotes omitted)
His Honour then continued:
45.In March 2017, the mother filed another Amended Response proposing that the child spend very limited time with the father – but only in New Zealand, only under supervision, and only if the child asked for it. When the trial commenced in June 2017, the mother’s counsel informed the Court the mother then proposed “the child have no contact with the father”. Although the mother confirmed in cross-examination she pressed for the orders set out in her Amended Response rather than for elimination of the father from the child’s life, her evidence was not convincing. Perhaps she realised the proposal in her Amended Response, which required the fulfilment of various conditions before the child’s relationship with the father could be restored, would virtually amount to the father’s elimination from the child’s life. She declared her belief it would be best for the child to “spend no time” with the father.
46.It is against that background the mother’s allegations of family violence fall to be assessed, since she contended – inferentially, if not expressly – that the history of family violence effectively precluded the child from spending any time with the father, other than under draconian conditions.
(Footnotes omitted)
His Honour made the following findings regarding the mother’s reliability and his reasons for preferring the evidence of the father over the mother’s where their evidence conflicted over alleged incidents of family violence:
48.The mother’s florid assertions that the father was “physically, verbally and emotionally violent” towards her and subjected her to “sexual abuse” were not persuasive because they were only statements of subjective opinion, not facts which could be fairly tested. Significantly, once the factual evidence adduced was objectively evaluated, it did not correlate with the mother’s opinions. In several instances, her factual evidence was either contradicted or unsupported by independent evidence and, in any event, her evidence was not particularly reliable. Several instances of her unreliability serve to exemplify that finding. For example:
(a)She denied hitting the father at all, which denial she was impelled to concede was false, because she admitted hitting the father – at least in self-defence.
(b)She blithely said in cross-examination “I have always facilitated [the child’s] relationship with the father”, which was flatly contradictory with recent history. In October 2016, the father needed to file a contravention application to force her compliance with orders. Then, in December 2016, she retained the child in her care and refused to allow her to either see or speak with the father for nearly two months, in contravention of existing orders. The mother said she was advised by staff at the child welfare authority to retain the child to keep her “safe”, but there was no official record to confirm any such advice was given. Of course, the absence of any confirmatory note does not mean the mother was not so advised, but it is unlikely she was. The reasons she gave to the Family Consultant in February 2017 for withholding the child appear contrived, given her declared willingness to return the child if the father divulged [Ms West’s] address and undertook not to allow the child any contact with [Ms West] and her family. Inconsistently, she had abandoned concern about the child being at [Ms West’s] home or in [L’s] company months before in September 2016.
(c)The mother admitted in cross-examination that, in November 2016, she attended the Court in relation to the property settlement dispute and denied to the Court having any knowledge of a [motor] vehicle, which the father believed she may have owned. To be clear, she did not merely deny her ownership of the vehicle; she denied having any knowledge of it. Her denial was revealed to be a lie. Her partner, [Mr West], accompanied her on that occasion and was privy to her false denial. In cross-examination, he confirmed he owned the vehicle [in] 2016, during which period it was parked at the home he shared with the mother. It would have been impossible for her not to know of the car’s existence and its ownership by him. She must have known because, presumably on her instructions, her counsel cross-examined the father in an attempt to extract a concession he had seen it parked at her home.
(d)Presumably on the mother’s instructions, her counsel cross-examined the father by positively alleging he made no attempt to find out details of the child’s extra-curricular activities once she moved to live with him in February 2017. The proposition put to the father was false and was rightly denied by him. The father and his solicitor separately sent emails to the mother on 22 and 27 February 2017 seeking details from her about the child’s [extra-curricular activities], but the mother failed to reply. The father now takes the child to [sport] and speech therapy instead.
(e)The mother deposed she had never been diagnosed with “[a mental health disorder]”, but was impelled to admit that was untrue. She did not merely assert her lack of memory. Rather, she positively asserted she never had such a diagnosis. In fact she did, as medical records revealed. The fact her current treating psychiatrist opined she does not have [the disorder] is not to the point, since that is only her opinion at the current time. The father told the Family Consultant in March 2016 the mother was previously diagnosed with [the] disorder, which he said in cross-examination he only knew because she told him. The mother told her current psychiatrist of her past diagnosis, so her denial of the diagnosis (as distinct from denial of her sufferance of the condition) was false.
(f)The mother denied in cross-examination she was suicidal when she lost her job in 2009, but she was forced to concede medical records revealed she was. In fact, she has experienced intermittent bouts of suicidal ideation from as far back as 1997 and as recently as 2016.
(g)She denied she had ever been “hospitalis[ed] for manic episodes”, but she was hospitalised for a month in 1997 for psychological treatment. She was an involuntary patient for part of the hospital admission. She was described as “suicidal” and was medicated to stabilise her mood.
(h)She conceded she gave a false historical account to a treating practitioner on at least one occasion.
49.Of course, evidence of the mother’s unreliability in some respects does not mean she is unreliable in all respects. However, in circumstances where the parties’ uncorroborated evidence conflicts over alleged incidents of family violence and misconduct, the father’s evidence should be preferred. His veracity was not found wanting.
(Footnotes omitted)
Where there was an instance raised by the mother of the father assaulting her inside a vehicle which caused her to sustain a facial injury, his Honour found that:
54.The mother alleged that in […] 2013 the parties argued inside a vehicle and the father “smashed” an [object] into the side of her face, which [caused a facial injury]. In cross-examination, the father admitted their argument on that occasion, but denied the alleged assault. He maintained the mother had hold of the [object], not him. He said the [object] had been broken for some time beforehand, as a consequence of him accidentally kneeling on it. He said the mother had no facial injury that day. The maternal grandmother was also a passenger in the vehicle at the time and, again, the mother failed to adduce corroborative evidence from her without any explanation.
55.The mother alleged she reported the incident to police some short time afterwards, but she conceded the police have no record of her report. It seems there is no record of her making any police report until […] 2016. The police asked the mother to provide them with any photographs she had of her [injury] and broken [object] but, if she had them, no copies were tendered in evidence. The mother did not explain why she wanted the father prosecuted in 2016 and did not insist on it beforehand. Most likely it was because she perceived some forensic advantage in these proceedings if the prosecution could be fostered.
(Footnotes omitted)
In relation to the father’s conviction for assault of the mother, his Honour stated:
60.The last incident occurred [in] 2015. The mother alleged the father jumped on her from behind and forced her to the ground, causing her injury. The father was charged with assaulting the mother, which charge he defended. The hearing before the State court in […] 2016 resulted in him being found guilty, but no conviction was recorded against him and no penalty was imposed upon him. An apprehended violence order was made against him in favour of the mother for 12 months. The father said he merely prised the mother’s fingers off the car keys she had momentarily before removed from the ignition of the car he was using. The transcript of the hearing reveals that was the only basis upon which he was found guilty of the assault.
61.The mother’s evidence about the incident was most probably exaggerated. She confirmed in cross-examination the child did not witness the incident but alleged, in the aftermath, she “mopped blood off [her]”, which she said was flowing “profusely” from her [facial injury]. None of that evidence was corroborated and it was denied by the father. The police attended and their contemporaneous notes make no mention of any injury to the mother’s [face], let alone one that bled profusely. Their notes only refer to “several minor cuts from the car keys to her hands”. The police took photographs of her injuries, but none was tendered in evidence to prove the mother’s contention. The mother attended her doctor the following Monday morning and the medical notes of that appointment make no mention of any [facial] injury. Only bruising to her legs was noted, which the mother did not attribute to the assault. The mother gave evidence of only hand injuries when she later gave evidence in the criminal prosecution.
62.The father undoubtedly assaulted the mother on that occasion, since the finding of his guilt by the State court is unimpeachable. But the incident was not as serious as the mother alleged. The manner in which the State court disposed of the offence without conviction or penalty reflects the same conclusion. It was another example of the mother’s tendency to exaggerate her allegations about the father’s “unrelenting abuse”. It should not escape attention that the father’s prosecution for that offence in the State court concluded only one week before the parties attended this Court in […] 2016, but it did not dissuade the mother from reaching agreement about interim parenting orders for the child. She must have factored that incident into her decision to compromise the parenting dispute.
(Footnotes omitted)
To conclude regarding allegations of family violence, his Honour noted:
66.It is difficult to accept that the mother is genuinely “scared for [her] life” and now too fearful to live anywhere in Australia, as she deposed, but even if that is true, there is no objectively rational basis for the belief. The Family Consultant considered the risk of further family violence between the parties was “reasonably low”. She was undoubtedly correct. There was no evidence of any family violence between the parties at all after they ceased living at the same property in August 2015 and neither party now wants any contact with the other. If the mother is believed, she will continue to live in New Zealand and not return to Australia
(Footnotes omitted)
The matters now raised by the mother are largely identical to those which were dealt with by Austin J in his reasons for judgment. The mother is trenchantly critical of what she perceives to be errors in the finding of fact by his Honour.
At [480]-[494] of her affidavit, the mother criticises his Honour’s findings in relation to an incident which the mother alleges occurred when she was driving a car and the father applied the handbrake and where his Honour stated in relation to the incident:
52.The mother alleged that in […] 2011 the father engaged the handbrake of the car she was driving, while he and the maternal grandmother were passengers. The father told the Family Consultant he felt compelled to engage it because the mother was speeding and he feared she was going to drive the car into a bridge. He was concerned for their safety and wanted to stop the car. He adhered to that version in cross-examination. The parties’ versions were incompatible and there was no evidence to corroborate either. The contemporaneous police records do not resolve the incompatibility. The mother did not adduce any evidence from the maternal grandmother, even though she was granted leave to do so. Her unexplained failure to call corroborative evidence from the maternal grandmother entitles the Court to more readily accept the father’s evidence in preference (see Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 385; Jones v Dunkel (1959) 101 CLR 298 at 308, 312, 320-321).
The mother strongly denies this, saying that there was no bridge at the accident scene nor was the maternal grandmother a passenger in the car. She states that the father’s version of events contains various inconsistencies. To support her claim, the mother annexes to her affidavit an insurance claim form, a screenshot of google maps and photographs where she says the incident occurred.
At [534] of her affidavit, she reasserts that his Honour’s reasons for judgment “contained no less than 33 errors of fact” which consequently led to an error of law. She says that she filed a Notice of Appeal of his Honour’s orders but following an order for $20,000 as security for costs, the mother discontinued the appeal being unable to pay such a sum. These matters do not give rise to any change of circumstances such as to justify re-opening the parenting proceedings and is indicative of the mother seeking to reagitate the issues which were before his Honour where she disagrees with his findings.
Father failing to facilitate time
The next issue raised by the mother that she says justifies the parenting orders being reconsidered is that the father is allegedly failing to facilitate time between her and the child.
At [78]-[80] of her affidavit, the mother alleges that since final orders were made the father has failed to facilitate the relationship between her and the child and has not kept her informed as to the child’s progress, including a relocation to Victoria.
At [82]-[88] the mother gives evidence that the orders made by Austin J did not exclude the mother spending time with the child and asserts the actions of the father have excluded the child from her life. She says that this is in contrast to the intentions of Austin J where she believes that his Honour intended for both parents to have meaningful involvement in the child’s life.
The mother alleges at [102]-[105] of her affidavit, that notwithstanding Austin J stating that “Where the father is willing to allow the child the freedom to retain her relationships with both parents”, the father has not facilitated any time with the child, including with the maternal family.
At [111] of her affidavit, the mother canvasses the supposedly amicable relationship between herself and an ex-partner and their successes in their co-parenting relationship, seemingly inferring that the issues in this matter lie with the father and not her. Again, there is no evidence that the mother’s view of the father as found by Austin J has changed or that the mother’s reasons for such views have changed, which were central to his Honour’s reasons. That is apparent from the mother’s evidence at [466] of her affidavit (referred to above at [18]).
This theme is repeated at [407]-[409], where the mother says that despite her best efforts the father imposes obstacles which prevents her having a relationship with the child. She states that visits being limited to two hours is a significant financial burden by way of costs associated with the travel to conduct such visits.
Counsel for the father submitted that the father has offered the mother supervised time with the child, but the mother has refused and that the decision between supervised and unsupervised time is an exercise of the father’s sole parental responsibility where the mother has previously removed the child in contravention of orders. Counsel for the father also denies that the father has refused the child contact with the mother where counsel points to the mother’s affidavit where she has admitted to being in contact with the child (at [641]).
These points raised by the mother do not represent a change of circumstances and is a reflection of the fact that the mother lives in New Zealand and the father and the child are in Australia which was a circumstance considered when the orders were made. It was wholly contemplated by his Honour that the child’s relationship with her would be limited, largely by her own actions ([92] of his Honour’s reasons). The father has offered to facilitate professionally supervised time between the child and the mother and the mother has not agreed to this because she does not see that as necessary.
The matters raised by the mother regarding the father’s facilitation of time are not new circumstances. The mother gave sworn evidence which was recorded in the judgment that if the Court made orders for the child to live with the father, the mother would spend no time with the child. The underlying reasons for the orders have not changed.
Section 65DAAA(2)(b)
Whether there is any material available that was not available to the court that made the final parenting
Allegations of Family Violence following the Final Hearing
The mother again alleges that she suffered abuse perpetrated by the father at [630] of her affidavit, but states that such abuse was ongoing.
At [632]-[674] of her affidavit, she also alleges abuse towards the child. She says that this includes an incident in late 2023 where she travelled to see the child for a special occasion at the child’s school without prior arrangement with the father or the school. She says that correspondence was sent by the father on that date to her that stated:
Please remind your client the orders make no provision for her to communicate or contact [the child] and she should seek my consent before attempting to remove [the child] from school.
Further breaches shall be referred to the police…
NB. [the child] is most distraught after today and has blocked her mother on her phone. The school enacted a [safety] plan to protect [the child].
These allegations do not constitute family violence or abuse of the child and do not form a basis for reconsidering the parenting orders.
IVO
The mother gives evidence that in early 2024, she contacted the Melbourne Magistrates’ Court after the father applied for an Intervention Order naming the child as a protected person. The mother alleges that she has not been served with such an order. The mother submits that this is another instance of the father obstructing the mother’s relationship with the child and she points to the Final Intervention Order, if it had been made, as further evidence of the father denying the mother contact.
The father produced the Final Intervention Order to the Court and it is marked as Exhibit A3. Counsel for the father submitted that the basis for the order was that the mother attends the child’s school as a way to circumvent the offers of supervised time which he says that she refuses to engage in. The father alleges that this is symptomatic of the mother not wanting to engage with the father unless it is on her terms. The application by the father for a Final Intervention Order does not constitute a change of circumstances such that it would be in the best interests of the child to reopen the final parenting orders.
Section 65DAAA(2)(c)
The likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way)
On the basis of the evidence before the Court, there is nothing indicative of a significant change in circumstances or that go to the matters set out at s 60CC of the Act which would make it likely that if the parenting orders were reconsidered, the Court will vary the terms of the current orders. The allegations of family violence raised by the mother were dealt with by Austin J and her recent allegations do not constitute family violence but is the effect of the father having sole parental responsibility. These matters, including the possibility of the mother spending no time with the child, were contemplated by his Honour and I do not find that there is any evidence subsequent to the final orders that are likely to cause this Court to make different orders.
Importantly, the mother’s entrenched views of the father which were central to his Honour’s findings have not changed. In these circumstances, it is highly unlikely that, if reconsidered, the parenting orders will be varied.
Section 65DAAA(2)(d)
Any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order
I see no benefit to the child for the parenting orders to be reconsidered. To re-open the parenting proceedings would embroil the child in further conflict which would not be in the child’s best interests, particularly given that the underlying basis of the terms of the final orders, being the level of animosity directed by the mother to the father, remain unchanged.
CONCLUSION
The mother does not raise new issues, rather, she recounts and seeks to reagitate the matters which were before Austin J. The challenges the mother makes to the findings of his Honour are based on her subjective belief, as are her allegations that the father has recently perpetrated family violence against her and the child. The evidence that the mother relies on to make good the proposition that there has been a change of circumstances since the final orders were made is minimal and based on her subjective opinion rather than the presentation of facts and I see no benefit for the child in the making of new parenting orders, nor does she present such. The mother has not discharged the onus of establishing that there is a significant change of circumstances and that it is in the child’s best interests to reconsider the final parenting orders.
For the reasons outlined above, I dismiss the mother’s application to reconsider the final parenting orders.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 6 December 2024
0
5
1