MITCHELL & MITCHELL
[2015] FCCA 2793
•30 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MITCHELL & MITCHELL | [2015] FCCA 2793 |
| Catchwords: FAMILY LAW – Parenting – final parenting orders by consent in 2012 – where father files new application for parenting orders – where mother seeks dismissal of new application on basis of rule in Rice & Asplund – whether application should be dismissed – whether 2012 orders in children’s best interest. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61B, 61C, 61DA |
| Hall & Hall (1979) FLC 90-713 Friscioni v Friscioni [2010] FamCAFC 108 D & P [2006] FamCA 170 Gaffney & Gaffney [2012] FamCAFC 140 Gelbvieh & Senepol [2007] FamCA 476 Andrew & Delaine [2009] FamCAFC 182 Hannigan & & Sorraw [2010] FamCAFC 257 Kennedy & Kennedy [2010] FamCAFC 195 Malak & Mairie [2010] FamCAFC 170 Salvati & Donato [2010] FamCAFC 263 Lindsay & Baker [2012] FamCAFC 189 Muldoon & Carlyle (2012) FLC 93-513 Yates & Yates [2012] Fam CAFC 138 Poisat & Poisat (2014) FLC93-597 SPS & PLS [2008] FamCAFC 16 B & B (1993) FLC 92-357 [2014] FamCA 450 Best & Best [2014] FamCA 450 Marsden & Winch (2009) FamCAFC 152 Rice & Asplund (1979) FLC 90-725 Langmeil & Grange (2013) FamCAFC 31 McEnearney & McEnearney (1980) FLC 90-866 Newling & Mole [1987] FamCA 21 (1987) FLC 91-856 F & N (1987) FLC 91-813 DL & W [2012] FamCAFC 5 Freeman and Freeman [1986] FamCA 23 Reid & Lynch (2010) FLC 93-448 B & J [2009] FamCAFC 103 Caracini & Paglietta [2009] FamCAFC 188 Gotch & Gotch [2009] FamCAFC 3 CDJ v VAJ (1998) 197 CLR 172 Miller & Harrington (2008) FLC 93-383 Zabaneh and Zabaneh (1986) FLC 91-766 Newling and Mole (1987) FLC 91-856 Tait & Densmore (2007) FamCA 1383 MRR & GR (2010) HCA 240 CLR Pavli & Beffa [2013] FamCA 144 Carelli & Guilleaer [2015] FamCA 81 Barone & Barone [2011] FMCAfam 902 Newlands v Newlands[2007] FamCA 168; (2007) 37 Fam LR 103 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR MITCHELL |
| Respondent: | MS MITCHELL |
| File Number: | DGC 1344 of 2011 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 21, 22, 23 September 2015 |
| Date of Last Submission: | 23 September 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 30 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr E. Hall |
| Solicitors for the Applicant: | David Wilkinson & Co |
| Counsel for the Respondent: | Mr J. Gates |
| Solicitors for the Respondent: | Mackinnon Jacobs Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr R. Allen |
| Solicitors for the Independent Children's Lawyer: | Peter Lynch |
ORDERS
The 2012 orders remain in full force and effect.
The amended application filed 10 April 2015 and the amended response filed 29 April 2015 be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Mitchell & Mitchell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1344 of 2011
| MR MITCHELL |
Applicant
And
| MS MITCHELL |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
These proceedings concern a dispute over parenting orders under the Family Law Act 1975 (“the Act”) between Mr Mitchell (“the father”), and Ms Mitchell, (“the mother”).
Background
The father is 39 years of age, lives in (omitted), a suburb of Melbourne, and gives his occupation as (omitted). The mother is 34 years of age, also lives in suburban Melbourne and gives her occupation as (omitted).
The parties commenced a relationship in 2002, married in 2005 and separated in 2011. There was a divorce order made in 2012. There are two children of the marriage: Y, born (omitted) 2005 and X, born (omitted) 2007.
After the parties separated in 2011, the mother and the children left to stay at a refuge and the father commenced proceedings in this Court. The father’s application was made against the background of a recent separation and proceedings for family violence intervention orders brought by the mother against the father.
In May 2011, a final intervention order was made against the father in the mother’s favour for two years. In June 2011, there were interim parenting orders made for inter alia, the father to spend supervised time with the children, psychiatric assessments and a family report. In August 2011, final property orders were made by consent. After preparation of the psychiatric reports and release of the family report, those proceedings returned for final hearing. By this time the father had begun seeing Dr J, a clinical psychologist.
In the family report prepared for that hearing, the parties respective allegations were noted, as was the father’s history of excessive drinking, anger management issues, abusive behaviour, depression, road rage incidents and that the father said his behaviour was exacerbated by his alcohol use which he reported had been “a bottle of Wild Turkey each night or 12 to 16 cans of beer”.
The report writer at that time (Ms B) noted:
“62.My assessment of Mr Mitchell also indicates that although he does not suffer from any psychotic illness, he remains emotionally reactive and volatile… He perceived and interpreted events from a self-centred perspective, had difficulty understanding other’s reactions and feelings and took little responsibility for his behaviour.
63.I consider that Mr Mitchell has limited capacity for empathy or insight. Mr Mitchell was able to relate some of the teachings of the behaviour management program he attended… He lacks self-awareness and demonstrated an inability to see how he is perceived by others. He was also not able to separate his needs from those of the children…
64.Mr Mitchell made a number of admissions of having threatened to kill his wife (including through the maternal grandmother), threatening people during his road rage incidents and deriving satisfaction from being intimidating: it gave him a sense of power and control over others. He has an exaggerated sense of self-worth and more easily interpreted events as disrespectful or as slights and provocations…
65.He has a distinct lack of boundaries and control of his behaviour.”
2012 Orders
After receipt of that report on 13 February 2012 and when both the mother and the father were represented the following final parenting orders were made by consent:
“1.The children Y born (omitted) 2005 and X born (omitted) 2007 live with the wife.
2. The children spend time and communicate with the husband as follows:-
(a) commencing Saturday 18 February 2012 between 11.00 a.m. and 3.00 p.m. each Saturday, for a period of 3 months from the date of these Orders, with such time to be supervised by the paternal grandmother, Ms C;
(b) at the conclusion of the time referred to in paragraph 2(a) hereof, and subject to compliance with paragraph 4 hereof, from 11.00 a.m. to 3.00 p.m. each Saturday, for 6 occasions, such time being unsupervised;
(c) at the conclusion of the time referred to in paragraph 2(b) hereof, and subject to compliance with paragraph 4 hereof, each Saturday and alternating Sunday between 10.00 a.m. and 5.00 p.m. so that in a fortnightly cycle, one week the husband’s time will take place on a Saturday and the other week the husband’s time will take place on a Sunday, such time being unsupervised;
(d)on Father’s Day, if the children are not otherwise spending time with the husband, from 10.00 a.m. to 5.00 p.m.;
(e) on the father’s birthday and the children’s birthdays from 10.00 a.m. to 3.00 p.m. if a non school day and from 4.00 p.m. to 7.00 p.m. if a school day;
(f) on Christmas Day 2012 from 2.30 p.m. to 8.30 p.m., unless otherwise agreed;
(g) by telephone each Tuesday between 6.00 p.m. – 6.30 p.m. with the husband to initiate the call and the wife to facilitate;
(h) as may otherwise be agreed.
3. The children’s time with the husband shall be suspended on Mother’s Day, from 10.00 a.m. to 5.00 p.m. and on the mother’s birthday, if a non school day from 10.00 a.m. to 3.00 p.m.
4. The husband’s time as provided in paragraph 2(b) hereof, shall be subject to and conditional upon the husband having attended and completed no less than 6 counselling sessions with Dr J, and the husband’s time as provided in paragraph 2(b) & (c) hereof shall be subject to and conditional upon the husband continuing therapy, if any, as recommended by Dr J.
5. The husband provide to the wife’s solicitors evidence of his compliance with order 4 hereof forthwith upon request by the wife’s solicitors, and if requested by the wife’s solicitors, provide an authority for the wife’s solicitors to obtain such information from Dr J.
6. Without admitting the necessity therefore the husband be and is hereby restrained from consuming alcohol whilst the children are spending time with him, and for a period of 8 hours prior.
7. For the purposes of changeover, the wife or her nominee will deliver and collect the children from the home of the paternal grandparents situated at (omitted).
8. The wife will authorise the children’s respective school and kindergarten to provide to the husband, at his expense, copy newsletters and school photographs and the husband be at liberty to arrange a parent teacher interview with the children’s teachers provided same does not take place at the same time as the wife or bring the husband into contact with the wife.
9. Each of the parties shall advise the other forthwith of any injury or illness sustained by the children whilst in their respective care and authorise the other parent to communicate with any treating medical practitioners.
10.Without admitting the necessity, each party be and is hereby restrained from:-
(a) denigrating the other parent or parent’s family in the presence or hearing of the children or permitting any other person to do so;
(b) allowing any third person, other than grandparents, to read any documents which have been filed in these proceedings.
11.Pursuant to s.65DA(2) & S62(B) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet and these particulars are included in these orders.
12.The husband and his parents be at liberty to attend the child Y's Auskick on Saturday mornings, during the time specified in paragraphs 2(a) & (b) hereof.
13. All previous parenting orders be discharged.
NOTATION:
1.The parties will make arrangements to attend (omitted), or such other organisation as may be agreed October/ November 2012 and it is anticipated that if the husband’s time with the children pursuant to these orders progresses satisfactorily, then the parties will discuss overnight and holiday time with the husband, at the mediation.
2.In the event the wife wishes to take the children on a holiday, whilst the husband is having weekly time she shall provide him with reasonable notice and the husband shall be provided with make up time, by spending time with the children on a consecutive Saturday, Sunday on the same weekend and in the event the husband wishes to have a holiday and is unable to spend weekly time with the children, he shall provide the wife with reasonable notice and will receive make up time, by spending time with the children on a consecutive Saturday and Sunday of the same weekend.” (“the 2012 Orders”)
In June 2012, the parties both began attending upon Dr J. Between October 2012 and January 2013, the parties, according to the mother, “trialled” overnight time for the children with the father with the assistance of Dr J. The father says the parties agreed to overnight time.
In November 2012, the father was arrested and subsequently charged, having on the father’s estimate, drunk 30 cans at the (omitted).
In January 2013, the mother made a number of complaints to police regarding the father breaching the intervention order. In June 2013, the father was convicted as a result of charges brought against him arising from the above events.
Later that month, the mother obtained a five-year intervention order against the father. The parties returned to see Dr J again between February and April 2014, after which the mother ceased her involvement.
In June and July 2014, there were incidents between the parties at one of the children’s sporting commitments which resulted in the mother making reports to police in August 2014 alleging further breaches by the father of the intervention order.
At or around the same time, the father had applied for, but subsequently withdrew, an application for an intervention order against the mother. The following month, the father filed the application that commenced these proceedings.
Finally, since the 2012 Orders, both parties have re-partnered. The mother lives with the children, her new partner and his children. The father is now in a relationship with Ms J.
Father’s new application
In his initiating application filed 17 September 2014, the father sought the following orders:
“1 That the Order dated 13 February 2012 be discharged.
2. That the parties have equal shared parental responsibility for the children of the marriage (collectively “the children”):
(a) Y born (omitted) 2005; and
(b) X born (omitted) 2007.
3. That the children live with the Respondent.
4. That the children spend time and communicate with the Applicant as follows:
(a)On each alternate weekend from school pickup on the Friday to school drop off on the Monday. In the event that the children are not at school, from 3:30 PM on Friday to 10:00 AM on Monday;
(b)On each other alternate week, from school pickup Wednesday to school drop off Thursday. In the event that the children are not at school, from 3:30 PM on Wednesday to 10:00 AM Thursday;
(c)For half of the school term holidays as agreed and in default of agreement the first half;
(d)For half of the long summer school holidays and in default of agreement the first half;
(e)From 4:00 PM on Christmas Eve to 4:00 PM on Christmas Day in 2014 and each alternate year thereafter;
(f)From 4:00 PM on Christmas Day to 4:00 PM on Boxing Day in 2015 and each alternate year thereafter;
(g)If the Applicant is not otherwise spending time with the children, from 4:00 PM on the Saturday preceding Father’s Day to school drop off on the Monday following;
(h)If the Applicant is not otherwise spending time with the children, on the Applicant’s birthday, the children’s birthdays and the paternal grandparents birthdays from 10:00 AM to 3:00 PM if not a school day and from 4:00 PM to 7:00 PM if a school day;
(i)By telephone at all reasonable times;
(j)At such further and other times as may be agreed between the parties in writing.
5.That the Applicant’s time with the children be suspended from 4:00 PM on the Saturday preceding Mother’s Day to the Monday following.
6.That the Respondent do all things necessary to authorise the children’s school to provide to the Applicant, at his expense, all school newsletters and school photographs and full access to all material relating to the children’s education.
7.The Applicant be at liberty to arrange a parent teacher interview with the children’s teachers.
8.Each of the parties shall advise the other forthwith of any injury or illness sustained by the children whilst in their respective care and authorise the other parent to communicate with any treating medical practitioner.
9.That the Applicant be at liberty to attend all of the children’s sporting events and school related activities.
10.Such further and other orders as this Honourable Court deems appropriate.”
Mother’s response
In her response filed 7 November 2014, the mother sought the following orders:
“1.that the Father’s Application filed 17 September 2014 be summarily dismissed.
2. that the Father pay the Mothers costs incurred in these proceedings on an indemnity basis.
3. such further and other Orders as this Honourable Court deems appropriate.”
Interim orders
The father’s new application was given a first Court date of 19 November 2014. On that occasion both parties were represented. The following orders were made:
“1.That the parties and the children of their relationship, Y born (omitted) 2005 and X born (omitted) 2007 attend upon Mr V psychologist for the preparation of a Family Report concerning whether the Final Orders of February 2012 should be changed and the future care, welfare and development of the said children and in particular the issues of the children’s time with the father including overnight time and/or extension of the existing time arrangements and the issue of equal shared parental responsibility of the children and any other matter the psychologist considers relevant to the welfare of the children.
2.That the parties comply with all directions of the psychologist including attendance for the purpose of interviews with Mr V on 10 February 2015 and such further or other dates and times as Mr V may direct.
3.That it is requested Mr V's Family Report be completed and released to the parties by Friday 27 February 2015 and the father shall pay for the cost of the report.
4.That the mother make, file and serve all further affidavit material upon which she may seek to rely by 14 January 2015 (including annexing any documents and/or reports previously filed in this court).
5.That the father make, file and serve all further affidavit material upon which he may seek to rely by 28 January 2015 (including annexing any documents and/or reports previously filed in this court).
6.That each party send to Mr V no later than 30 January 2015 a copy of all documents filed by that party in the current proceedings.
7.That the mother make, file and serve her written submissions in support of her application for summary dismissal by Thursday 5 March 2015 and in reply by 16 March, 2015.
8.That the father make, file and serve his written submissions in response to the mother’s application for summary dismissal by Thursday 12 March 2015.
9.That the mother’s application for summary dismissal (and the proceedings generally) be set down for interim defended hearing on 18 March 2015.
10.That the parties’ costs of this day be reserved.”
The parties subsequently attended upon Mr V for the purposes of the preparation of a family report.
Mother’s interim submissions
Prior to the adjourned date and pursuant to the abovementioned orders, the mother filed a written summary of argument on 4 March 2015 which provided:
“1.Even if made on a Final basis, Parenting Orders are not necessarily permanent.
2.The court is bound to consider the best interests of the children in deciding whether or not to make changes to an existing final parenting order.
3.The nature of the argument currently before this court concerns the circumstances in which a final parenting order should be varied by this court.
4.The Rule in Rice and Asplund (1979) FLC 90-725 was explained in the following terms in Reid and Lynch [2010] FamCAFC 184 at paragraphs 20 and 21 as follows:
“...s 65D(2) of the Family Law Act 1975 (Cth) (“the Act”) empowers a court to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order, but in exercising such a power the best interests of the child in question are the paramount consideration...” [20]
“…However, as O’Ryan J also explains by reference to the various authorities which he cites, a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment, unless the court can be satisfied that there is some changed circumstance which would justify such a serious step, or some fact which was not previously disclosed which would have been material in the making of the orders.”[21]
5.The Applicability of the Rule in Rice and Asplund cannot be understated as paragraph 13 of POISAT & POISAT [2014] FamCAFC 128 indicates:
“Whether or not the principle might be properly called a “binding rule” in the sense used by Mason and Deane JJ, for present purposes it can be said that the “rule in Rice and Asplund” is of long-standing, has been consistently recognised and applied both in this Court and at first instance, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.”[13]
6.In addition both SS 60CC(3)(d) and (l) have particular relevance. At paragraph 32 in Poisat the court quoted with approval the approach taken by the trial judge in applying the said sections:
“Her Honour recorded, with respect correctly, that the father’s proceedings “…fall to be determined pursuant to Part VII of the Family Law Act 1975…” (at [11]) and noted that, because the application sought a change to existing agreed, arrangements, particular attention needed to be given to ss 60CC(3)(d) and (3)(l) of the Family Law Act 1975 (Cth) (“Act”) which, her Honour said, “…relate to the effect of change in the children’s lives and the benefit to the children of finality in litigation” …”[32]
7.At Paragraph 43 of Poisat the Full Court stated:
“If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders. Applied at the end of the hearing - because the hearing that precedes it is “a full hearing of a ‘custody’ dispute” (SPS at [65]) The court then proceeded to quote Warnick J in SPS & PLS (2008) FLC 93-363- a different question can be asked:
“While … the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.” (SPS at [72])
“There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.” (SPS at [73])
8.At Paragraph 44 of Poisat the Full Court stated:
“If the “rule” can be applied, as suggested by Mason CJ, based solely on the affidavit evidence or after “…the benefit of cross-examination of some of the witnesses”, or after a “full hearing”, the application of the rule must, almost axiomatically, involve differing weight being given to factors which inform it. Citing Warnick J in SPS at [81], this Court said in Miller & Harrington:
“In our view, that passage need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.”[80] (emphasis my own)
“Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred. [81]
“However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.[ 82.]
“Once it is understood that the “rule in Rice and Asplund” may, but is not required to be, considered as a preliminary issue, then it must be accepted that the weight to be attributed to factors relevant to the application of the “rule” can also vary. As Mason CJ makes plain, “…each case must be tailored to its own circumstances…”. [45]
9.It is submitted that this application by the husband to vary the existing parenting Orders made on 13th February, 2012 should be dismissed at the preliminary stage because even if the husband’s evidence was accepted there is not a sufficient change in circumstances that in the best interests of the children involves the court taking such a serious step as to vary the final orders.
10. In Summary:
(a)The age and maturity of the children has not advanced to the point in time where their alleged wishes are significant.
(b)The Husband’s behaviour is far from a marked departure from the alcohol/violence and relationship concerns that were initially raised by the wife
(c)repeated applications to court do not enhance the best interests of these children and are in contrast to ss 60CC(3)(d) and (3)(l) of the Act
(d)The 2 public policy considerations raised above are of concern in this particular case.
11.It is however, trite to say that any of the above could ever override the court’s consideration of the best interests of the children as being paramount. Instead what is submitted is that these final orders were made with good reason and the Husband’s suggestion that the Orders were “temporary” as stated in his Affidavit of 16th September, 2014 at paragraph 30 is fanciful when in the same paragraph he refers to overnight time with the children as having no more than “some prospect” of being increased.
Relevant Procedural and Factual Context
12.The Husband born (omitted) 1976 and wife born (omitted) 1980 commenced a relationship in 2002 ,were married on (omitted) 2005 ,separated on 27th January 2011 and were divorced on 4th April 2012.
13.The 2 children are Y born (omitted) 2005 and X born (omitted) 2007.
14.The legally represented parties entered into final Parenting orders by consent on 13 th February , 2012.The wife’s Affidavit of 14th January 2015 at paragraphs 4 and following summarises the process that occurred(e.g a psychologist’s involvement ,a family report and psychiatric assessments on both parties)
15.The children were aged 6 and 4 at the time of the Orders and are now 7 and 9 years old.
16.Inter alia, the Orders provided that the children would live with the wife and spend time with the husband on a supervised basis moving to unsupervised daytime visits subject to the Husband’s compliance with seeing Dr J for not less than 6 sessions(order 4)
17.There was no overnight time in the Orders ,however a notation provided that the parties would consider this at mediation in October/November 2012 if progress was satisfactory.
18.At paragraph 5 of the husband’s Affidavit of 16 th September 2014 [and again in his Affidavit dated 28 th January 2015 at paragraph 7]he incorrectly states that the time to consider the overnight issue pursuant to the notation was Oct/Nov 2013.This is not a mere typographical error but a glaring admission that instead of proving himself by the end of 2012 the husband’s progress was far from satisfactory.
19.At paragraphs 11 and following of the wife’s Affidavit dated 14th January 2015 the events since the Final Orders are set out. In particular at paragraph 14 the wife makes very specific and detailed complaints about the husband’s interaction with the children. At paragraph 51(e)(iv) of his 2015 Affidavit, the Husband chooses not to respond to same.
20.In summary and without challenge on the material by the Husband;
(a)The husband was convicted of drunk in a public place and offensive behaviour arising from an incident on 24th November 2012 at the (omitted).
(b)The husband was convicted of breaching the wife’s intervention Order on 2 separate occasions arising from incidents in November 2012 and January 2013.
(c)The Husband was convicted of harassing a witness (the wife’s partner) arising from an incident on 20th January 2013
(d)The wife’s intervention order in place on 10 th May 2013 was extended for 5 years on 28 th June,2013 until 28th June 2018
(e)The husband has been charged with further offences of breaching the wife’s intervention Order arising from 3 separate incidents in June and July 2014 which were listed at court on 19 th February 2015.
(f)At paragraph 50 of his Affidavit dated 28 th January 2015 the Husband admits that he applied for an intervention order against the wife on 16 th July 2014 “out of sheer frustration” (as opposed to a bona fide reason) and later withdrew his Application .
(g)The wife alleges that on 20 th October 2012 just 1 day prior to spending overnight time with the children, the husband was involved in a fight at a pub and suffered facial injuries. The children observed the aftermath of these injuries.(in his defence the husband claims to have been assaulted)One may ponder what he was doing in such a situation when pursuant to the Orders he was supposed to be demonstrating his insight and ability to make progress.
(h)The husband confirmed: that he crashed his 4WD with the children in it on 6-7th October 2012, that the children have been injured in his care ,that he has forgotten to re- apply sunscreen on the children, that he has missed scheduled telephone calls with the children and Auskick with Y and that after agreeing to pay the children’s school fees he changed his mind believing such a commitment to be conditional on spending overnight time with them.[para 52(c)]
21.The husband alleges a potential breach of Order 8 of the Orders which provide him with the usual material from the childrens’ school. No contraventions have been filed by the husband.
22.The wife explains that the reference to the school diary was kept from the husband to protect his feelings due to the use of the term “dad” by the child when writing in the diary about Mr D.[18(b) wife’s Affidavit Jan. 2015]If anything this incident shows the sensitivity from the wife to the issue in contrast to the husband’s lack of trust and hostility to the wife.
23.The husband’s assertion that the wife stopped overnight time due to the seatbelt incident of 2012 is difficult to understand given the wife’s unchallenged assertion at paragraph 6(d) 7 th Nov. 2014 that the overnight time ceased in January 2013 after the husband’s breaches of the intervention Order. At paragraph 51 of his Affidavit the husband does not explain this obvious flaw in his evidence.”
Father’s interim submissions
The father filed written submissions on 12 March 2015 which provided:
“In Marsden & Winch [2009] FamCAFC 152 the Full Court (Bryant CJ, Finn and Cronin JJ) discussed the ‘rule’ in Rice & Asplund. The Full Court gave specific guidance as to how the principle should be applied, holding at [50] that:
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.
These submissions aim to assist the Court by following the ‘roadmap’ provided by the Full Court in Marsden and Winch.
1. The past circumstances including the reasons for the decision and evidence on which it was based
1.1The parties cohabited from 2002 and were married in 2005. Their son Y was born in (omitted) 2005, their daughter X in 2007. They separated in 2011, and were divorced in 2012.
1.2The Father applied for parenting orders in May 2011. At interim he proposed that the children spend time with him each alternate weekend from Friday afternoon to Monday morning and one overnight in the off week. On a final basis he sought equal shared parental responsibility, week about residence, and time on special events.
1.3The Mother responded on 16 June 2011. She proposed equal shared parental responsibility, and that the children live with her, on both an interim and final basis. She proposed that the children’s time with the Father be supervised in the interim and as determined by the court on a final basis.
1.4At the first return on 20 June 2011 the Court ordered by consent inter alia that the children live with the Wife and spend time with the Father, weekly daytime contact, supervised by the paternal grandparents, increasing from 2 hours to 4 hours duration after a six-week period. There were orders for privately funded reports: psychiatric assessment of both parties by Dr D and then a Family Report by Ms B in July and August of that year.
1.5 Orders on 18 August 2011 finalised property matters.
1.6Dr D saw the Mother on 1 July and the Father on 8 July 2011. His psychiatric assessment of the Father dated 10 August 2011 culminated with the opinion that
Mr Mitchell impresses as well-intentioned towards the children but embittered towards his ex-partner and her family. Orders should reduce the likelihood of conflict between the parties. I do not have significant concerns on the information available to me that Mr Mitchell’s behaviour poses such risks to the children that he would require supervised access. [82]
1.7Ms B’s report was released on 3 September 2011. At paragraph [57] Ms B canvassed the parties’ proposals as conveyed to her at interview: the father’s ultimate wish that the children live with him and his proposal that for the time being they spend alternate weekends with him; the mother’s wish that time continue to be supervised.
1.8Ms B interviewed the parents and children on 8 August 2011. X had just turned four. Y was two years and ten months old.
1.9 In her conclusions Ms B stated:
Both children are securely attached to their mother. X has some relationship with her father but there was little to indicate any bonding with him. Her mother is her sole attachment figure. Long separations from her mother are not indicated and overnight time with her father is at present premature. [58]. (emphasis added)
1.10At [67] Ms B recommended the continuation of supervision by the paternal grandparents.
1.11 At paragraph 68 Ms B recommended:
I recommend that the children spend time with the Father for 4 hours once per week and the period of time remain 4 hours until the children are older, in approximately 18 months to 2 years. If Mr Mitchell’s conduct and care of the children is appropriately positive and he can demonstrate an ability to care for both children, then it is hoped that by that time X has developed some bond with her father and Y has become more secure in his care. (emphasis added)
1.12At the next court hearing on 19 September 2011, parenting issues were not resolved (or varied) and the matter was set down for final hearing on 13 February 2012.
1.13The week prior to the final hearing the Mother amended her Response for Final Orders. She applied for an updated report from Ms B, and that pending the completion of that report, the children continue to spend four hours per week with the Father, supervised by the paternal grandparents.
1.14On 13 February 2012 Judge Phipps made orders by consent providing for:
· The children to live with the Mother;
· Their time with the Father to be initially four hours per week;
· Time to be initially supervised by the paternal grandparents for six weeks;
· Supervision to be lifted provided the Father had completed at least six sessions with Dr J, psychologist, and complied with any continuing therapy Dr J recommended;
· After a further six weeks, the duration of time to extend to from four hours to seven hours, provided the Father complied with any continuing therapy recommended by Dr J.
1.15As discussed at [1.11] above, the Family Report contained the recommendation that time arrangements be reviewed in 12 to 18 months. Given that family report was dated August 2012, Ms B was recommending a review of time arrangements between August 2012 and February 2013.
1.16The parties agreed to a notation that they ‘will make arrangements to attend (omitted), or such other organisation as may be agreed October/November 2012 and it is anticipated that if the husband’s time with the children pursuant to these Orders progresses satisfactorily, then the parties will discuss overnight and holiday time with the husband, at the mediation.’ (emphasis added)
1.17The parties’ agreement to revisit overnight and holiday time arrangements in October/November 2012 coincided with the midpoint of Ms B’s 12-18 month review recommendation.
1.18Although the Mother would wish to emphasise the ‘finality’ of the Orders of February 2012, it is clear that this was an outstanding issue which the parties agreed to revisit as and when recommended by the family report writer. They agreed to use an ADR process as a first resort to resolve the future issue. Whilst that is sensible and laudable it obviously does not preclude an application to the court when the ADR process failed to resolve the issue, as recorded in the s60I certificate.
1.19The point of the policy emanating from Rice and Asplund was to prevent the relitigation of issues already decided by the court, in parenting cases where the doctrine of res judicata could have no application. Given the recommendations of Ms B and the notation to the Orders, it is, with respect, misconceived for the Mother to invoke Rice and Asplund in the circumstances of this case.
1.20Adopting the roadmap provided by the Full Court in Marsden and Winch, the Court is to take account of the past circumstances, including the reasons for the decision and the evidence on which it was based. Applied to this case, overnight time was not ordered in February 2012 because the Family Report writer did not consider it developmentally appropriate, but she explicitly foreshadowed time arrangements being reviewed in 12-18 months’ time. The genesis for the current application was clearly on the court record comprised by the Family Report and the Orders of February 2012, including the notations which documented the premises of the parties’ consent to those Orders.
1.21It is not at all surprising that the Father has applied to the Court for orders permitting overnight time, following a progression to overnight time by mutual consent, which it is common ground the Mother unilaterally terminated. That action gives rise to a dispute as to whether it is in the best interests of the children to spend overnight time with their father, which ADR processes have not resolved. This Court is the appropriate forum for the adjudication of this issue which is of considerable significance to the welfare of these children.
2. The likelihood of orders being varied in a significant way, as a result of a new hearing
Current evidence about the quality of the father/child relationships
2.1At the first return of these proceedings it was ordered by consent that a Family Report be prepared by Mr V
concerning whether the Final Orders of February 2012 should be changed and the future care, welfare and development of the children and in particular issues of the children’s time with the Father including overnight and/or extension of the existing time arrangements and the issue of equal shared parental responsibility of the children and any other matter the psychologist considers relevant to the welfare of the children.
2.2 Mr V’s report was released on 10 March 2015.
2.3Mr V observed the children with the Father and reported (at [24]):
Mr Mitchell spoke with great pride about his children. When observed with them, he related warmly and easily and them with him. Whereas when the children were interviewed individually they were quite defensive and guarded in relation to their father, when with him, they relaxed very quickly, and they actively sought his physical attention and affection, and showed no hesitation or restraint. They were spontaneous, maintained a very active dialogue, played easily and comfortably with him, show a high level of excitement and enthusiasm about his participation, and engaged with him in much the way that he described and which has been described by others.
2.4The above description represents a significant change from the interactions observed by Ms B 3½ years ago. Ms B observed problems in the interaction between the children and their father, at that time. Her evaluation was quite critical, and her recommendations were guarded, pointing to the review in 12-18 months’ time:
The observations:
[28] …Mr Mitchell tended to pay attention to one child at a time and mostly devoted himself to X. Y appeared to be accustomed to playing on his own, only occasionally asking for his father’s attention… Conversation was limited and did not extend beyond question and answer. Mr Mitchell initiated interaction only once or twice with Y.
[29] …When it was time to conclude the play session in the interview and to leave, neither child embraced their father not even when he asked for a hug. They left the room without looking back, eager to return to their mother in the waiting room downstairs. When Mr Mitchell was at the front door, the children were encouraged by their mother and grandmother to give their father a hug and both children obeyed. Mr Mitchell only hugged X and ignored Y who looked somewhat disappointed.
Ms B’s conclusions:
[58] X has some relationship with her father but there was little to indicate any bonding with him. Her mother is her sole attachment figure. Long separations from her mother are not indicated and overnight time with her father is at present premature.
[61] My observations of Mr Mitchell’s interactions with the children indicated that he only interacted with one child at a time, directed most of his attention to X, and was either passive or only reactive to the children’s initiatives. I have reservations as to whether Mr Mitchell has the capacity to consistently manage both children for an extended period of time.
Culminating in her recommendation:
[68] I recommend that the children spend time with the Father for 4 hours once per week until the children are older, in approximately 18 months to 2 years. If Mr Mitchell’s conduct and care of the children is appropriately positive and he can demonstrate an ability to care for both children, then it is hoped that by that time X has developed some bond with her father and Y has become more secure in his care.
2.5The observations of Ms B 3½ years ago, compared with those by Mr V last month, document a substantial change in the quality of the relationship between the children and their father. This is a leading consideration under s60CC(3)(b) of the Act – the nature of the children’s relationship with their parents. It points to the appropriateness of a change in the existing orders to permit the extension of the children’s time with their father.
2.6Mr V’s report not only constitutes significant new evidence indicating a review of existing parenting orders; it also takes account of, and builds upon, the logic that underpinned the report of Ms B.
The expert assessment of risk has changed
2.7In 2011 Ms B had the opinion that the Father [65] has a distinct lack of boundaries and control of his behaviour. She recommended [70] that supervision remain for a substantial period of time until Mr Mitchell’s bitterness towards his wife has significantly diminished and he can demonstrate a capacity to contain his anger.
2.8Now, on the question of risk to the children Mr V reports (at [56]):
I note that neither Dr J nor Dr D expressed a concern that Mr Mitchell would be a risk to the welfare of the children, and in this regard, I concur. I saw no indication that the children were anxious about their father and their interaction with him, although they were very aware of their mother’s anxiety and apprehension.
2.9The expert evidence regarding risk to the children is very different to that which was before Judge Phipps three years ago. The recommendations arising from that assessment have also changed markedly. This directly affects the application of the two primary considerations in s60CC(2), namely the need to protect the child from physical or psychological harm on the one hand, and the benefit to the child of having a meaningful relationship with both of his/her parents on the other.
The expert evidence supports changes to the existing arrangements
2.10In contrast to the recommendations of Ms B traversed above, Mr V reports at [55]:
At a very practical level it makes sense for the children to spend more time with their father so that he is more than just the recreational option that he fears he has become and that Ms Mitchell believes should be his role in the children’s lives.
2.11 Mr V further recommends [58]:
The indications are that the children are doing better, that Mr Mitchell is doing better and that things are looking more positive. Obviously a strong degree of caution must be applied. It may be that the only way forward is to put in place as many precautions and safety checks as possible. This is not a matter about which a strong recommendation can be made without a degree of caution. The history is significant and the concerns by Ms Mitchell understandable and relevant. However, nothing will appease her apprehension and she will remain anxious and sceptical, no matter what is said, and based on her direct experience, this may be a reasonable position. However, the indications are that Mr Mitchell is not a risk to the children, that he is doing better, he has sought help, and on condition that he continue with some kind of monitoring or therapeutic involvement, it may be that the only alternative is to increase the time and for there to be continuing attention paid to the overall progress of this matter on a reportable basis back to the Court.
2.12Mr V reported on telephone interview with the father’s de facto partner of two years, Ms J. In his conclusions [51] Mr V stated, ‘In my discussions with Ms J she was measured, reasonable and realistic.’ The interview is reported at [36]-[37]. The Court will be assisted to read these two paragraphs in their entirety. They traverse Ms J’s knowledge of the history; that she had seen ‘none of this aggressive behaviour’ during the time that they have cohabited; that Mr Mitchell ‘has worked extremely hard on improving himself and changing, and that his motivation has been his children, whom he adores.’
2.13The principal dispute between the parties concerns overnight time. The Father’s two-year de facto relationship with Ms J constitutes a significant change to the circumstances pertaining in February 2012. That change is highly relevant to a dispute about overnight time.
2.14Ms J features in Mr V’s recommendations for overnight time with a minimum requirement of substantial attendance by Ms J [at 57]:
Inevitably, the only way forward is to maintain some monitoring of this situation. If there is to be an increase of time, then it would be reasonable for there to be a minimum requirement of Ms J being in substantial attendance. If her ability to be involved was to change in the future, for example if that relationship was to end, then the matter would need to be reconsidered. It may also be helpful for something like a s65L order to be made such that there can be some ongoing monitoring of the situation on a quarterly basis to simply ensure that the whole matter is progressing well. A move towards parallel parenting would certainly ease some of the tensions and it may be that for all concerned the course of least resistance is for Mr and Ms Mitchell not to be in the same place at the same time and when one parent is on duty, the other parent has no contact whatsoever, regardless of how unfair and unreasonable this might be, unless there is prior negotiation, possibly with a 65L like counsellor.
2.15 In summary:
· the expert evidence indicates that the children’s relationships with the Father have improved markedly;
· the expert assessment of risk has changed;
· developmentally the children are 3 years older, which is a significant change in the scale of their lives;
· the Father’s living circumstances have been materially different for two years; and
· the expert evidence now supports a transition to overnight time albeit with certain safeguards in place.
2.16Answering the second question posed by the Full Court in Marsden and Winch, there is a clear likelihood that in this case, the previous Orders will be varied in a significant way as a result of a new hearing.
3. Weighing the likely changes against the potential detriment to the children caused by the litigation itself
3.1The Father’s application is not a trivial one. Progression to overnight time will permit a significant development in the children’s relationship with the Father which is recommended by the single joint expert. The progression pays regard to the principles underlying the objects of the Act:
S60B(2)(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, never have married or have never lived together;
s60B(2)(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development;
s60B(2)(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
s60B(2)(d)parents should agree about the future parenting of their children.
3.2The proposed changes are significant to the lives of the children and they are supported by the expert evidence.
3.3As to the question of detriment of proceedings to the children, the Family Report has already been conducted. The children are unlikely to have further direct involvement in the proceedings.
3.4Paragraphs 28, 30 and 35 of Mr V’s report indicate that not only have the children been informed of these proceedings ([28]: …In Y’s own words he told me “…my dad keeps trying to send her to court because he wants us to stay at his place.” Y was very aware of the content and detail of these concerns) but they have also apparently been misinformed about the substance and scope of their father’s application (Y reported [30] ‘that his mother feels she needs to keep him safe from his father, that his mother is worried that he will take them away and that his father will keep them from her.’ X too [35]‘has a fear that her father will take her and not return her).
3.5If the Mother has discussed the proceedings with the children, that is most unfortunate and contrary to their welfare. If the Mother has exaggerated the scope of the Father’s application to the children, that may reflect very poorly on her ability to respect and promote the children’s relationship with their Father.
3.6Suffice to say that non-denigration / non-discussion orders would appear prudent and warranted.
3.7From a case management perspective, if the Mother’s interim application is dismissed, yet discussions do not result in an agreement about orders transitioning to overnight time, the matter can be set down for a final hearing in accordance with the terms of the Dandenong project. Court process need not become unnecessarily prolonged or complicated, not least of all because the issue is overnight contact, not something more far ranging such as residence.
3.8In conclusion it is submitted that the third limb of the Marsden & Winch decision path ought be decided in favour of the Father.
4. Observations about the Mother’s Case
Mother’s Submissions take no account of the Family Report
4.1It is clear from the Orders of November 2014 that the Court intended to evaluate the Mother’s Application for Summary Dismissal with the benefit of an up to date Family Report. The Order spells out Mr V’s terms of reference being ‘whether the Final Orders of February 2012 should be changed and the future care, welfare and development of the children and in particular the issues of the children’s time with the father including overnight time and/or extension of the existing arrangements…’ The court order also confirms that the Family Report order was made by consent. The Honourable Judge O’Sullivan indeed added to the terms of the Family Report Order to specifically require Mr V to consider ‘whether the Final Orders of February 2012 should be changed.’
4.2In the event, Mr V could not see the family on the appointed date as he was called to court on another matter. Appointments were rescheduled to a later date. This delayed the release of Mr V’s report until 11 March. Notwithstanding this the Mother proceeded to file her Case Outline by 4 March. That document completely fails to address the content of the Family Report. It can only be evaluated accordingly.
4.3The Father’s solicitor wrote to the Mother’s solicitor on 6 March raising the problem that the Mother’s submissions took no account of the evidence in the Family Report, which was yet to be released. The Father’s solicitor suggested the Mother’s submissions be redrawn after the report release and providing for an adjournment of her application to a later date to preserve the integrity of the intended court filing timetable. The Mother by letter of 10 March 2015 declined this proposal stating ‘We do not consider the Family Report to be of particular relevance to our client’s application for dismissal of the proceedings under the Rice and Asplund principle. Rather, it is our view that the Family report will be of relevance in the event our client’s Application for dismissal is unsuccessful. We are therefore comfortable with our client’s submissions being made prior to the release of the Family Report. Accordingly our client does not consent to an adjournment of the Interim Hearing listed for 18 March 2015.’
4.4The Father’s solicitor will file a brief affidavit exhibiting the exchange of solicitor correspondence.
4.5The Mother’s position ignores the stated terms of reference for the Family Report, and the clear intention of the court that submissions be made in light of the Family Report. The submissions filed on her behalf on 4 March 2015 are of limited value to her 18 March interim application given that they completely overlook the content of Mr V’s report.
Relationship between Rice & Asplund and nature of change sought
4.6 It is settled law that the application of the ‘rule’ in Rice & Asplund is closely connected with the nature of, and degree of, change sought to the earlier order.
4.7In SPS v PLS [2008] FamCAFC 16 Warnick J, summarising the rule in Rice & Asplund, held
[82] The application of the rule is closely connected with the nature of and degree of, change sought to the earlier order. This proposition lay behind what Evatt CJ said in In the Marriage of Zabaneh (1986) 11 Fam LR 167 at 172, (Fogarty and Renaud JJ agreeing) where her Honour distinguished between the application of the rule in Rice & Asplund where the question was the reopening of custody as opposed to the reopening of the issue of access:
“The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
“Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitude and wishes. Time may play a part in this. The Court would not wish to subject the children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly would not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.”
4.8 Warnick J continued [83]
Accordingly the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
4.9In Marsden and Winch (2009) FamCAFC 152, Bryant CJ, Finn and Cronin JJ in a joint judgment specifically endorsed these observations of Warnick J. In that case their Honours noted [42], ‘It is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. Their Honours went on to specifically endorse Warnick J’s judgment that the application of the rule is closely connected with the nature of and degree of, change sought to the earlier order [46].
4.10The Mother’s invocation of the rule in Rice & Asplund fails to relate the rule to the nature of, and degree of, change sought to by the Father. If Mr Mitchell were asking this court to reverse the residence order, the Mother’s application for summary dismissal would be proportionate. The children have apparently been given to believe the Father is seeking to ‘take the children away’ and ‘not return them’ (Mr V [30], [35]). These are the kind of proposals that would warrant a Rice & Asplund response by the Mother. But given that the Father is merely seeking the extension of the children’s time with him, the kernel of his application is found not only in the previous orders, but also the Family Report of Ms B. The Mother’s bid to invoke the rule in Rice & Asplund should be considered in that light.
4.11 The parties trialled overnight contact with Dr J’s assistance. It is common ground the Mother unilaterally cancelled overnight contact after a number of months. Whether that decision was in the best interests of the children is a fact in issue in the proceedings the Father has instituted. It is not for the Mother alone to determine this, and then seek to shut down a hearing on the question of overnight when the Father brings the matter before this court. If anything, the rule in Rice & Asplund would favour acceptance of the Father’s account of overnight time at its highest, not the account of the Mother, at a preliminary hearing.
4.12The Mother’s invocation of Rice & Asplund is an overreaction to what the Father seeks. It overlooks the relationship between the rule and the nature of the change sought. The type of changes sought by the Father are wholly foreseeable, and now have the support of arguably the most experienced and highly respected forensic psychologist practising in this State.
4.13At paragraph 19 of the Mother’s Submissions filed 4 March 2015 it is claimed on behalf of the Mother that the Father chose not to respond to her complaints about the Father’s interaction with the children. This is not the case. At paragraph 51 of his January 2015 affidavit the Father does respond to the Mother’s complaints. Those complaints were in any event on the record considered by Mr V before he interviewed the parties and children. On this subject Mr V observed [10]:
Ms Mitchell has very fixed and negative views; she has significant concerns about Mr Mitchell and his past behaviour, and she is not at all reassured by his proclamations to have changed. She does not place confidence in any professional opinion that he has developed insight, and remains very fixated on statements made by him about fathers who have acted violently towards their children because of the likely contribution by these children’s mothers.
And in his conclusions [56]:
The argument regarding this matter is circular. Ms Mitchell’s views and beliefs will not change. Mr Mitchell’s proclamations of change inevitably must be viewed with some caution given the history of his problems and the length and the intensity of his past problems. I note that neither Dr J or Dr D expressed a concern that Mr Mitchell would be a risk to the welfare of the children, and in this regard, I concur. I saw no indication that the children were anxious about their father and their interaction with him, although they were very aware of their mother’s anxiety and apprehension.
Culminating in the final paragraph [58]:
Obviously a strong degree of caution must be applied. It may be that the only way forward is to put in as many precautions and safety checks as possible. This is not a matter about which a strong recommendation can be made without a degree of caution. The history is significant and the concerns by Ms Mitchell understandable and relevant. However, nothing will appease her apprehension and she will remain anxious and sceptical, no matter what is said, and based on her direct experience, this may be a reasonable position. However, the indications are that Mr Mitchell is not a risk to his children, that he is doing better, he has sought help, and on condition that he continue with some kind of monitoring or therapeutic involvement, it may be that the only alternative is to increase the time and for there to be continuing attention paid to the overall progress of this matter on a reportable basis back to the Court.
4.14In her submissions the Mother seeks to rely upon Poisat & Poisat [2014] FamCAFC. The case concerned an application by a Father to revisit final parenting orders seventeen months after final orders had been made. Those orders provided a 5/9 arrangement of the parties’ two children, in favour of the mother. The Father now sought a 7/7 arrangement. The Mother sought dismissal relying upon Rice & Asplund. Judge Rees ordered a full family report to assist deciding the preliminary issue. The Family Report did not support a change to 7/7. The judge dismissed the Father’s application. The judge pointed out that the children already had substantial and significant time with each parent. Judge Rees’ decision was upheld on appeal to the Full Court. Given the outcome of the Family Report in the present case it is submitted that Poisat is consistent with the dismissal of the Rice & Asplund application, and not the reverse.
4.15The complaints listed at paragraph 20 of her submissions are largely historical in nature. This does not assist the Mother’s case that nothing has changed. Mr V’s report suggests otherwise. Despite his awareness of the Mother’s complaints Mr V provides reliable guidance to the Court on how parenting arrangements should be progressed.
5. Orders sought
5.1The Father respectfully requests that this Honourable Court grant the following Orders:
1 That the Mother’s response seeking summary dismissal be dismissed.
2. That the Mother pay the Father’s costs of and incidental to responding to the Mother’s Application for Summary dismissal in a sum to be agreed within 14 days and in default to be taxed.
3. That the proceedings be set down for final hearing on a date determined by the Court (2 day estimate).
4. That the Father file and serve any Amended Application for Final Orders within 14 days.
5. That the Mother file and serve any Amended Response for Final Orders within 14 days thereafter.
6. That the parties make, file and serve any further affidavit material upon which they may seek to rely at final hearing as follows:
(a) The Father 28 days prior to the final hearing;
(b) The Mother 14 days prior to the final hearing;
(c)The Father any affidavit in reply 7 days prior to the final hearing.
7. That each party file and serve an Outline of Case by 4.00pm two clear business days prior to the final hearing.”
Mother’s interim reply submissions
There were also submissions in reply filed by the mother on 16 March 2015, which provided:
“1.Paragraphs 1.16, 1.17 and 1.26 of the Husband’s argument place reliance on the notion that the Orders were not final but contemplated change by agreement and by implication, that is in the event agreement was not reached further litigation would follow.
2.The making of a Consent Order on a final basis merged the outstanding issues between the parties.
3.The recommendations outlined in Ms B’s family report were considered by the parties in making the Orders by consent. The options that were open to the Husband were: to seek an adjournment of the trial, to run the trial, to ask the Court to make interim orders pending the occurrence of certain events, to refuse to consent to an order unless it had a specific order specifying a graduating increase in time between the children and the Husband or to seek an order that involved the Court’s ongoing monitoring of the matter.
4.A notation is not a binding order of the Court. The presence of this notation to bolster the argument that a Final Order was not intended as such cannot stand.
5.The Wife repeats her arguments at paragraphs 10-17 in support of the course that the Court should adopt.
6.At paragraph 2.5 of the Husband’s argument reference is made to s60CC(3)(b). This section is wider then comparing 2 psychologist’s differing views of the interaction in a controlled interview with the children and their father.
7.At paragraph 2.9 of the Husband’s argument it can be noted that Dr J, Dr D and Mr V all minimalized the risk of direct harm to the children by the Husband. This was not a change in circumstances.
8.As to paragraph 2.11 of the Husband’s argument, this is the type of future order that constitutes a lack of finality of the issues with the consequence that the children will be embroiled in future litigation without the benefit of finality referred to by the Courts.
9.Paragraph 3.7 of the Husband’s argument asserts a limited issues future case. This is not a limited issues case. All of the animosity, behaviour of the Husband, conduct of the Husband, anxiety, difficulties, concerns, and history provided by the Wife would need to be fully litigated to mitigate against the opinion expressed at paragraph 2.16 of the Husband’s argument that this case involves a likelihood that previous orders would be varied in a significant way by the Court. Indeed to balance against the view of Mr V the Wife’s case would need to uncover contrary facts that underpinned the opinions of Mr V that the Husband was a changed man.
10At paragraph 4.1 of the Husband’s argument it is misleading to suggest that the Wife consented to the Order for a family report by Mr V. Indeed submissions were made by the Wife that to make such an Order would be premature. The Court made this Order on the application of the Husband with the Husband offering to pay the costs of such report. It was not an Order made by consent.
11.Paragraph 4.4 of the Husband’s argument is indicative of the Husband’s attitude to increasing the costs of litigation and is consistent with his approach in issuing an Intervention Order out of sheer frustration and then withdrawing same.
12.Paragraph 4.12 of the Husband’s argument relies on the support of Mr V for the Orders sought by the Husband but then seeks filing dates to specify the orders he seeks (paragraph 5.1.4).
Comments Regarding Report Dated 10 March 2015 by Mr V
13.The Husband’s arguments at 4.2 and 4.3 ignore the reality that when a Court sets a filing deadline as an Order of the Court such times are not to be disregarded by the parties. The Wife complied with the said Orders.
14.The report of Mr V is part of the evidence that the Court can take into account it is not to be elevated beyond this status.
15.The Wife has significant concerns about several aspects of the report.
16.At paragraphs 8, 17 and 39, Mr V has named the Wife’s fiancée, Mr D, as a person involved in an alleged affair/relationship with her at the time of separation. This is incorrect. The Wife in fact first met Mr D in October 2012, nine months after separation. If Mr V has referenced this mistake as a basis for the Husband’s anger at separation and perhaps as an explanation of same it is erroneous.
17.Mr V’s comments in Paragraphs 8, 9 & 47 that it is the Wife’s belief supervision is a necessary requirement for Mr Mitchell to see the children is incorrect. The Wife’s submission to the Court is based upon an acceptance that the current Final Order should remain unchanged as it is working well. To repeatedly refer to the Wife’s fixated view that supervision was being sought is a fundamental error that grossly exaggerates the Wife’s position to that of insisting on an unreasonable restraint.
18.Mr V did not observe the Wife and the children together as part of the assessment, yet at paragraph 53 he speaks of the different ways the Wife interacts with the children in/out of their presence.
19.Mr V focuses largely on how Mr Mitchell’s behavioural problems are in the past but has failed to discuss in any detail the fact that several incidences of such bad behaviour have occurred since the current Court Order was made. (see Wife’s Outline of Argument at paragraph 20).
20.Mr V’s report contains references to Ms J in the context of providing evidence confirming the changes in Mr Mitchell. Ms J is not an unbiased or objective observer. The notion that she would be able to monitor time between the children and the Husband and thus have a role to play in allaying the Wife’s concerns is difficult to justify. The Wife is the primary carer of the children, the children pick up on her anxiety and stress. Mr V would reconsider his recommendation if Ms J and the Husband separated. The impracticality of assessing whether the matter was progressing well could not be effectively communicated to the Wife. This is especially so where there is no contact between the parents and there exists an environment of extreme hostility and animosity. Monitoring progress without expensive Court litigation would be impossible.
21.Mr V chose to involve Ms J by telephone, yet refused Mr D’s offer to contribute to the interview despite Mr D being present at Mr V’s office on the day of interview. Such an omission was in the context of Mr V forming the view that the Wife and X (paragraph 33) had placed a strong priority on their current family unit.
22.At paragraph 4 of his report, Mr V has not mentioned that prior to the current five year extension of the Intervention Order, there was a further two and a half years of Intervention Order.
23.Mr Mitchell was charged and convicted with breach of Intervention Order offences after the Federal Circuit Court Orders were made. Furthermore, Mr V’s inference that Mr Mitchell’s threats to kill The Wife were mere allegations by her, is incorrect.
24.At paragraph 5 of his report Mr V refers to a report completed by Dr J in relation to her contact with Mr and Ms Mitchell. Dr J’s report was dated 27.1.2012, Dr J did not meet The Wife until May 2012.
25.The comments by Mr V at paragraph 16 concerning Child Support Payments are inaccurate. The Wife did not state that Mr Mitchell doesn’t pay child support, only that he knows how to limit what he pays to a bare minimum. Last year Mr Mitchell paid some contribution to the children’s school fees through arrangement with Dr J, but later withdrew this support from the children by claiming the money back from his minimal Child Support payments.
26.As to paragraph 22 of the report, contrary to Mr Mitchell’s comments, Mr Mitchell has neglected to tell Mr V, that he was subsequently involved in fighting at the (omitted) on 24.11.2012 (about one month after the previous incident). He was charged by Police with drunk and disorderly offences and was later convicted accordingly. Mr Mitchell also breached the Intervention Order around this time and was later convicted of same. Further, Mr Mitchell also has pending charges of breaching the Intervention Order from mid-2014 which are due to be heard on 19.3.2015. All of these incidents occurred well after the extensive courses and therapy attended by Mr Mitchell
27.As to paragraph 28, the Wife refutes any inference that she deliberately tried to influence Y’s views. Mr V stated that Y told him he didn’t wish to spend more time with his father. Mr V fails to emphasise this view in his findings.
28.As to paragraph 32, X made it perfectly clear that she did not want to have sleepovers at her father’s house.
29.Both children spoke of their father’s negative comments about their mother and Y in particular spoke about the ongoing Court process and the impact on him.
30.Mr V’s recommendations are, with respect, difficult to implement.
31.The concept of ongoing Court monitoring with future Court dates, the role of Ms J and “some kind of monitoring or therapeutic involvement” for Mr Mitchell would be incredibly expensive and impractical to work between two parents with such entrenched animosity. The process would be extremely stressful for Ms Mitchell as the children’s primary carer and against the children’s best interests.
32.At best Mr V makes a recommendation where a strong degree of caution is applied. At paragraph 54 Mr V states, “It is almost impossible to make strong predictive statements about what will transpire”. His recommendations offer no more than an ongoing series of Court cases for these parties with no finality in sight.
33.Inevitably if the preliminary submission about the applicability of the rule in Rice & Asplund is decided against the Wife, there will be a full 2-3 day trial where at the end of same, after hearing all of the parties’ evidence, the Court will be asked to accept a submission that the rule in Rice & Asplund is still applicable and failing that, that the children’s best interests will not be met by them spending more time with the Husband.
34.The three part “roadmap” in Marsden & Winch as discussed by the Husband’s Counsel at page 1 of his submissions is precisely why a reopening of this case, and future protracted trial, would be a tumultuous journey on a road to futility.”
Interim Orders on 18 March 2015
On 18 March 2015, the proceedings returned to Court. Both parties were represented. On that day, there were still allegations against the father to be dealt with in the Victorian state courts arising from the allegations made by the mother referred to earlier. The family report prepared for the parties had only recently been released.
Given the issues raised by the parties, it was noted that the Full Court in the recent decision of Poisat& Poisat [2014] FamCAFC 128 at [8] said:
“The rule or principle emanating from the decision of this Court in Rice & Asplund is… firmly entrenched in family law in Australia having been referred to and applied in numerous decisions of this Court over the last 25 years”.
As to the application of the rule, the Full Court commented at paragraphs [41] through to [43], after referring to the decision of Warnick J in SPS & PLS (2008) FamCAFC 6 that:
“The rule can be addressed as a preliminary matter which proves determinative of the application or applied at the end of a full hearing.”
As to when the rule is considered is at the discretion of the trial judge and as confirmed by the Full Court in Poisat at [42] where it was said:
“No matter when it is considered, the best interests of the relevant children are its paramount consideration.”
In the circumstances of this case, and given the nature of the recommendations contained in the family report it was determined that consideration of whether the father’s new application should be dismissed pursuant to the rule in Rice & Asplund (supra) should properly be made after the appointment of an Independent Children’s Lawyer and once all the evidence had been considered and the parties had had an opportunity to fully ventilate their respective cases at a trial.
Accordingly, and on 18 March 2015, the Court made the following orders:
1. Pursuant to section 68L(2) of the Family Law Act 1975 the said children X born (omitted) 2007 and Y born (omitted) 2005, be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such:
(a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
(d)The Independent Children’s Lawyer do prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she will recommend be made as final orders at the final hearing.
2. The matter be adjourned to 21 September 2015 at 10:00 am for final hearing (with an estimated hearing time of 2 days) at the Federal Circuit Court of Australia at Dandenong.
3. That the Father file and serve any Amended Application for Final Orders within 28 days.
4. That the Mother file and serve any Amended Response for Final Orders within 14 days thereafter.
5. The applicant do file and serve all further affidavits and other material to be relied upon by the applicant not later than 28 days prior to the trial.
6. The respondent do file and serve all further affidavits and other material to be relied upon by the respondent not later than 14 days prior to the trial.
7. The Independent Children’s Lawyer do file and serve all further affidavits and other material to be relied upon by them not later than 7 days prior to the trial.
8. All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date setting out the following:
(a) a list of the material relied upon;
(b) a brief chronology listing significant events;
(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (sec 60cc factors);
(d) a list of other contentions relevant to the decision;
(e)whether the presumption of equal shared parental responsibility applies (sec 61da), and if not the contentions relied upon;
(f) a list of the considerations relevant to considerations of equal and substantial parenting time (sec 65daa);
(g)a list of other relevant considerations (including the relevant section number, eg secs 60cg, 61f, 65dab, 65dac, etc); and
(h)the actual orders sought.
9. That no further documents shall be filed in these proceedings, save for as set out above, without leave of the Court.
10.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Circuit Court of Australia Regulations 2000.
11.That until further order and without admission of the need for this order each of the parties by themselves, their servants and agents be and are hereby restrained by injunction from
(a)Discussing these proceedings or the subject matter of these proceedings in the presence or hearing of the children (or either of them) X born (omitted) 2007 and Y born (omitted) 2005.
(b)Denigrating the other parent in the presence or hearing of the children or either of them.
12.Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
13. The parties’ costs be reserved.
The following day the father was found guilty of a breach of the intervention order but no conviction was recorded.
Father’s Amended Application
The father subsequently filed an amended initiating application on 10 April 2015 which sought the following orders:
“1. That the Order dated 13 February 2012 be discharged.
2.That the Mother and the Father have equal shared parental responsibility for the children of the marriage (“the children”):
a. Y born (omitted) 2005; and
b. X born (omitted) 2007.
3.That the children live with the Mother.
4.That the children spend time and communicate with the Father as follows:
a. On each alternate weekend from school pickup on the Friday to school drop off on the Monday. In the event that the children are not at school, from 3:30 PM on Friday to 10:00 AM on Monday;
b. On each other alternate week, from school pickup Wednesday to school drop off Thursday. In the event that the children are not at school, from 3:30 PM on Wednesday to 10:00 AM Thursday;
c. For half of the school term holidays as agreed and in default of agreement the first half;
d. For half of the long summer school holidays and in default of agreement the first half;
e. From 4.00 PM on Christmas Eve to 4.00 PM on Christmas Day in 2014 and each alternate year thereafter;
e. From 4:00 PM on Christmas Day to 4:00 PM on Boxing Day in 2015 and each alternate year thereafter;
f. From 4.00 PM on Christmas Eve to 4.00 PM on Christmas Day in 2016 and each alternate year thereafter;
g. If the Applicant is not otherwise spending time with the children, from 4:00 PM on the Saturday preceding Father’s Day to school drop off on the Monday following;
h. If the Applicant is not otherwise spending time with the children, on the Applicant’s birthday, the children’s birthdays and the paternal grandparents birthdays from 10:00 AM to 3:00 PM if not a school day and from 4:00 PM to 7:00 PM if a school day;
i. If the Applicant is not otherwise spending time with the children, on the birthday celebration of the children’s paternal cousins and other paternal family members for a period of four hours at times to be advised by the Father to the Mother on no less than 14 days’ notice.
j. Liberal telephone communication between the hours of 8.00am and 8.00pm;
k. At such further and other times as may be agreed between the parties in writing.
5.That the Father’s time with the children be suspended from 4:00 PM on the Saturday preceding Mother’s Day to the Monday following in the event that the Father would otherwise be spending time with the children on that weekend.
6.That the Father is hereby authorised to receive from the children’s schools copies of school reports, newsletters, photograph opportunities, correspondence and other documentation ordinarily provided to parents.
7.That the Mother do all things necessary to authorise the children’s school to provide to the Father, at his expense, all school newsletters and school photographs and full access to all material relating to the children’s education.
The Father be at liberty to arrange parent/teacher interviews with the children’s teachers separately from the Mother unless otherwise agreed in writing.
8.Each of the parties shall advise the other as soon as possible in the event that either of the children suffers an injury or illness requiring medical intervention whilst in their respective care and each party shall authorise the other parent to communicate with any treating medical practitioner.
9.That the Applicant be at liberty to attend all of the children’s sporting events and school related activities.
That each of the parents be and is hereby restrained by injunction from attending at the childrens’ sporting, school or other extra-curricular events which occur whilst the children are spending time with the other parent pursuant to these Orders, save with the prior written consent of the other parent.
10.Such further and other orders as this Honourable Court deems appropriate.
Mother’s Amended Response
The mother filed an amended response on 29 April 2015 which sought the following orders:
“1 That the Father’s Application filed 17 September 2014 and Amended Application filed 10 April 2015 be summarily dismissed.
2 That the Father pay the Mother’s costs incurred in these proceedings on an indemnity basis.
3. Such further and other Orders as this Honourable Court deems appropriate.”
Material filed for and relied on at trial
Both parties then filed material in accordance with the above mentioned orders for the trial fixed for 21 September 2015. At trial, the father was represented by Mr Hall of Counsel, the mother by Mr Gates of Counsel and Mr Allen appeared as Counsel for the Independent Children’s Lawyer.
The Independent Children’s Lawyer had filed a case outline on 16 September 2015, the father filed a case outline on 17 September 2015, and the mother filed her case outline on 18 September 2015.
Counsel for each of the parties confirmed their respective clients relied on the material set out in their respective case outlines which also contained the orders that they sought.[1] Over the course of the three-day hearing beginning 21 September 2015, each of the parties had an opportunity to call evidence on which they relied and there were a number of exhibits tendered.
[1] See father’s case outline filed on 17 September 2015 and mother’s case outline filed on 17 September 2015.
At the conclusion of the evidence, each of the parties had an opportunity to make submissions and provide the Court with a minute of proposed final orders. At the close of those submissions, the Court reserved its decision.
Orders sought at trial by the father
In final submissions, Counsel for the father provided the Court with a minute of proposed final orders which were:
“1. That the Order dated 13 February 2012 be discharged.
2.That the parents have equal shared parental responsibility for the children of the marriage (collectively “the children”):
a. Y born (omitted) 2005; and
b. X born (omitted) 2007.
3.That the children live with the Respondent.
4.That the children spend time and communicate with the Applicant as follows:
a. Commencing 25 September 2015, each alternate weekend from school pickup or 3.30pm on the Friday until 5.00pm on Saturday;
b. Commencing 20 November 2015, each alternate weekend from school pickup or 3.30pm on the Friday until 5.00pm on Sunday;
c. Commencing 18 December 2015,each alternate weekend from school pickup or 3.30pm on the Friday until school drop off or 10.00am on the Monday;
e. On each other alternate week, from school pickup Wednesday to school drop off Thursday. In the event the children are not at school, from 3.30pm on Wednesday to 10:00 AM Thursday;
f. For three nights in each of the school term holidays as agreed and in default of agreement from 10:00am on the middle Friday until 10.00am on the following Monday;
g. For three nights on three occasions during the long summer school holidays at times agreed and in default of agreement then from 10.00am on Friday until 10.00am on Monday each alternate week;
h. From 4:00PM on Christmas Day to 4:00pm on Boxing Day in 2015 and each alternate year thereafter;
i. From 4:00PM on Christmas Eve to 4.00PM on Christmas Day in 2016 and each alternate year thereafter;
j. If the Applicant is not otherwise spending time with the children, from 4:00PM on the Saturday preceding Father’s Day to school drop off on the Monday following;
k. If the Applicant is not otherwise spending time with the children, on the Applicant’s birthday, the children’s birthdays and the paternal grandparents birthdays from 10:00 AM to 3:00PM if not a school day and from 4:00PM to 7:00PM if a school day;
l. If the Applicant is not otherwise spending time with the children for a period of one hour prior to the commencement of time stipulated in a written invitation to attend a birthday party or celebration for the father’s nephew, niece or other family member with such time to conclude one hour after the finish time stipulated on the invitation.
m. By telephone at all reasonable times;
n. At such further and other times as may be agreed between the parties in writing.
5.In the event that the Applicant would otherwise be spending time with the children on the weekend of Mother’s Day, the Applicant’s time with the children be suspended from 4:00PM on the Saturday preceding Mother’s Day to the Monday following.
6.That the Respondent do all things necessary to authorise the children’s school to provide to the Applicant, at his expense, all school newsletters and school photographs and full access to all material relating to the children’s education.
7.The Applicant be at liberty to arrange a parent teacher interview with the children’s teachers and otherwise attend at all school related activities.
8.Each of the parties shall advise the other forthwith of any injury or illness sustained by the children and requiring medical intervention whilst in their respective care and each party shall authorise the other parent to communicate with any treating medical practitioner.
9.That both parties are hereby restrained from attending at the childrens’ sporting or other events which fall on a weekend on which the children are spending time with the other parent pursuant to these Orders without the written consent of the other parent.
10.That the Father’s partner MS J shall be in substantial attendance during the children’s overnight time spent with the father noting that Ms J has this day provided an undertaking to the Court to do so, and to notify the mother forthwith in the event that the father acts in a manner which compromises the welfare or safety of the children or either of them during time spent.
11.That the Father attend upon Ms S (or other counsellor recommended by Ms S) for the purposes of therapeutic counselling as and when recommended by Ms S.
12.That the parties and the children attend upon Mr V or other agreed Family Consultant for the purposes of reportable counselling eight weeks prior to the adjourned date, the cost of the report to be paid by the Father.
13.That each parent forthwith enrol in and complete a Parenting Orders Program and provide a Certificate of completion to the other parent and the Independent Children’s Lawyer.
14.That the proceedings be adjourned to 2016 (12 months) for mention, NOTING THAT the parties may file final consent orders in terms agreed prior to the adjourned date.
15. That without admission of the necessity for this order:
(a)the husband be restrained from consuming alcohol for 8 hours prior to or during all periods of time spent with the children;
(b)each party be restrained from denigrating the other parents or members of their family, or discussing these proceedings with or in the presence or hearing of the children or either of them.
Counsel for the father indicated that in the event the Court was not persuaded to make those orders, in the alternative his client sought a variation of the 2012 Orders that would extend the time from 8:00 am to 8:00 pm each weekend.[2]
[2] That was marked as exhibit A6.
Orders sought at trial by the mother
Counsel for the mother told the Court the orders sought by his client were as contained in the outline of case, and were:
“1 That the Father’s Application filed 17 September 2014 and Amended Application filed 10 April 2015 be dismissed.
2 That the Father pay the Mother’s costs incurred in these proceedings on an indemnity basis.”
Orders sought at trial by the Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer told the Court that if the Court was not satisfied there had been a change of circumstances and the test in the rule in Rice & Asplund wasn’t otherwise met, the current arrangements (i.e. the 2012 Orders) should remain in place.[3]
[3] That was marked as exhibit ICL2.
In the alternative, the Independent Children’s Lawyer sought orders which were[4]:
[4] Exhibit ICL1.
“1.The mother have sole parental responsibility for the children of the marriage Y born (omitted) 2005 and X born (omitted) 2007 (“the children”) save that the mother shall give the father reasonable advance notice where practicable when the mother intends making any non-urgent major decisions concerning the children’s care, welfare and development.
INTERIM ORDER
2. The father spend time and communicate with the children as follows:
(a)during the Victorian School term each fortnight from 10am Sunday to the commencement of Monday morning and if the Monday is a non-school day to 5pm on the Monday;
(b)commencing in 2016 on the mid weekend of the school term holidays from 5pm Friday to 5pm the following Monday;
(c)over the 2015/2016 Victorian Christmas School on the third, fourth and fifth weekend of the holidays from 5pm Friday to 5pm Monday;
(d)on Christmas Day 2015 from 2.30pm Christmas Day to 5pm Boxing Day;
(e)on Father’s Day from 10am Sunday to the commencement of school the next day;
(f)on the father’s and children’s birthdays from 10am to 3pm if a non school day and from the conclusion of school to 7pm if a school day;
(g)at other times as mutually agreed by the mother and father in writing;
3. The father’s time with children shall be suspended on Mother’s Day.
4. When the father is spending time with the children in accordance with order 2 Ms J shall be in substantial attendance.
5. The father is restrained by injunction from doing the following:
(a)consuming or being affected by alcohol when spending time with the children;
(b)consuming alcohol 24 hours prior to any spend time period;
(c) attending licensed premises with the children;
(d)discussing future parenting arrangements with the children or in the presence or hearing of the children;
(e)discussing these or other Court proceedings with the children or in the presence of the children;
(f)denigrating the mother, her partner, friends or family to the children or in their presence or hearing.
6. The father shall attend upon Ms S to undertake therapeutic counselling in an effort to address family violence, anger, attitude to the mother and her family and any other matters Ms S feels would assist the father to become a better parent.
7. The father shall attend upon Ms S at least once per month at the father’s expense, and continue to attend until Ms S from the view the father no longer needs to do so.
8. The Independent Children’s Lawyer be at liberty to provide Ms S with the following documents:
(a) The Family Reports of Mr V and Ms B;
(b)The father’s psychiatric assessment prepared by Dr D;
(c) the report of Dr J;
(d) the mother’s affidavits filed since 2014.
9. That not before March 2016 the mother, father and children attend upon Mr V, at the father’s expense to prepare an up to dated family report.”
However, as I understood the position of the Independent Children’s Lawyer having heard all the evidence, if the Court was not satisfied the additional safeguards (as they were described by Counsel) contained in that minute would be more likely to promote the children’s best interests, then the 2012 Orders should remain in place.
The Evidence
Turning then to the evidence at the trial.
Evidence of the parties
The father was not an impressive witness. Even allowing for the difficulties associated with giving evidence, he presented as fixed on what he wanted, showed no appreciation of the value of time spent for the children as opposed to himself and failed repeatedly to demonstrate an understanding of the long-term effects of his behaviour. He was also not helped by omissions in his evidence and omissions in his reports to various professionals, to which I will return.
On the basis of my observations of the father in the witness box when he was giving evidence and being cross-examined, the reservations expressed by the various experts in this case about the father have only been underscored.
The mother gave her evidence in a direct and calm manner. The mother was an impressive witness. The mother’s evidence demonstrated the impact the father’s past behaviour has had on her and, given this and the parties fractured communication, the disruptive effect this has had on her and the children.
The father had also not been frank with Mr V who acknowledged in his evidence that the father had not told him the full story about the incidents at the (omitted) or that he had continued to be involved in incidents of road rage.
Dr J’s evidence speaks for itself, including that she didn’t expect the father to be frank with her.
Finally, whilst there is no reason to reject the evidence of Ms J (the father’s partner) outright, and her motivations are understandable, her evidence as a partisan witness of the father needs to be treated with caution and considered in light of all of the evidence.
The father
The father gave evidence and was cross-examined. The father adopted his affidavits filed 28 January 2015 and 24 August 2015. In his evidence before the Court the father said he “now understood” the mother found it difficult to feel safe for either her or the children around him and said he first realised this “straight after [he’d] lost his kids”.
Admitting having made threats to chop up the mother in the past and commenting at changeover in 2013 that she had a “nice fat ass”, the father said it was “a matter of opinion” as to why he was arrested at the (omitted) in November 2012 after drinking 30 cans.
Repeatedly referring to the “education” he has had since separation, the father time and time again in response to questions from counsel for the mother said he had changed.
A consistent theme to the father’s evidence before the Court was his claim that the children were “taken away from me” and he saw himself as “an amusement centre for seven hours” and that as a father “I’m excluded”. When asked questions about the children (and indicative, I’m satisfied of the father’s attitude) was the father’s evidence that “my time is restricted and there are lots of things I can’t do.”(emphasis added).
Refusing to accept that he had tried to minimise his violence at the time of separation, and that “maybe” he had told Ms B he got satisfaction from being intimidating, the father denied continued involvement in road rage incidents.
Agreeing he had denigrated the mother in front of the children, the father’s evidence was he didn’t see Ms J being involved in supervising or being in substantial attendance.
The father couldn’t deny that since the 2012 Orders there had not even been a few months without incident and he maintained he did not have a chronic drinking problem. The father also did not deny having referred to the mother as a “fucking (c-bomb)”, her partner as a “fucking pig”, the maternal grandmother as a “bitch”, and the maternal grandfather as a “fucking idiot”, and said, when challenged as to whether he had changed, that “I’ve been pushed to the limit”.
In response to questions from Counsel for the Independent Children’s Lawyer, the father claimed the mother and her extended family white anted his relationship with the children and that that was the reason he believed for the children’s expressed views to Mr V.
In response to a question from Counsel for the Independent Children’s Lawyer, the father asked the Court to accept his statement to the maternal grandmother that he’d kill her daughter was “tongue in cheek”.
The father reiterated his view he did not have a problem with alcohol, and saw no problem with what he said was his current alcohol intake that saw him drinking five to six stubbies of light beer five nights a week.
Ms J
Ms J is the father’s new partner. She gave evidence and was cross-examined. Ms J adopted her affidavit filed 24 August 2015.
In answer to questions from Counsel for the mother, Ms J said she knew the father’s past and that he had made mistakes, indicated she believed he had cleaned up his act, rejected the suggestion he had a problem with alcohol as she had seen a “huge change”, said she believed he had been “badly done by” but, to her credit, acknowledged she was “conflicted”.
In response to questions from Counsel for the Independent Children’s Lawyer, Ms J reiterated her preparedness to be present whenever the children spent time with the father in accordance with his proposal.
The mother
The mother gave evidence and was cross-examined. The mother adopted her affidavits filed 7 November 2014, 14 January 2015 and 7 September 2015.
In answer to questions in cross-examination from Counsel for the father, the mother accepted the children generally do enjoy their time with the father but maintain concerns about incidents that she said either had occurred, or what the children had told her about. The mother maintained her belief that the children were not “always” safe with the father.
The mother’s evidence was, despite the father’s relationship with Ms J, she didn’t fully believe the father had moved on. The mother rejected the suggestion put to her by Counsel for the father that the children were aware of the proceedings because of her, and maintained this was because of what the father had told them.
The mother’s evidence in cross-examination, which had the ring of veracity to it, was when they had asked questions because of what the father had said that she had tried to reassure them.
The mother’s evidence in cross-examination was she had been flexible and she had “allowed” additional time on birthdays and special occasions. The mother maintained that she didn’t believe the father could go without alcohol, but acknowledged she hadn’t raised an issue regarding this whilst the children were spending time with him since the 2012 Orders.
By way of an explanation for why she saw the current arrangements as in the children’s best interests given her concerns about the father, the mother’s evidence was the children saw that time as normal and they enjoy it. By way of further explanation of her position, given there had been a number of occasions of overnights in late 2012 and January 2013, the mother reiterated her position that those arrangements had been “trialled” and the father had been unable to prove to her he could be a responsible parent and not put the children in danger.
Whilst it was clear from the mother’s evidence she had significant concerns about child support, overall her evidence impressed as illustrating her real concerns for the children were in the face of what she believed was the father’s aberrant and abhorrent behaviour.
The mother’s evidence in cross-examination by Counsel for the father only served to underscore the palpable fears the mother held for herself and the children in light of the father’s history when confronted by him at either changeovers or the children’s sporting events.
The mother said again and again in cross-examination her view was she was wanting the arrangements (the 2012 Orders) to remain the same for the sake of the children and her clear view was the more time the children spent with the father, the more chance he had to put them in danger.
Rejecting the claim put to her in cross-examination that her position was about prioritising her “new” family, the mother’s evidence (which again had the ring of veracity to it) was she had stayed with the father for so long because she “tried to fix him”, but her belief now was he was incapable of changing and was not a “good” influence on the children.
In answer to questions in cross-examination from Counsel for the Independent Children’s Lawyer, the mother acknowledged the children may “catch onto” her anxieties about them spending time with the father and that when they reported incidents that occurred during spend time (such as the father’s confrontations with cyclists) she tried to reassure them.
Acknowledging the father hadn’t over held the children since the 2012 Orders, the mother’s evidence was she tried to be positive with the children about their time with the father.
Unfortunately, even in the 21st century and in a first world country, it is, sadly, not unusual to see family violence orders in proceedings involving disputes over parenting orders. However it is unusual to see consistent breaches of those orders as has been established in this case. I note the mother’s submissions that the current arrangement and the 2012 Orders limit the children’s exposure to the father’s propensity to engage in violent and abusive behaviour. The alternatives increase that risk that they will be. The Independent Children’s Lawyer proposed, as one option, a series of controls to address that risk. The father’s proposal paid only lip service to the need to do so.
Given the importance of this factor, it is necessary to prioritise arrangements less likely to expose the children to that risk and that tells against the father’s proposal and the Independent Children’s Lawyers alternative.
Additional considerations
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
Turning to the additional considerations, section 60CC(3)(a). I, again, note the submissions of each of the parties in relation to this particular factor insofar as it is addressed in both their case outlines and in oral submissions before the Court. I also note the father’s evidence about his view as to how those views were established and the more nuanced evidence of Mr V and submissions of the Independent Children’s Lawyer on the same.
The evidence is the children’s expressed views, and as they were stated to the Independent Children’s Lawyer, are that they are happy with their current arrangement and the 2012 Orders. Those views will be accorded appropriate weight given their ages.
Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Turning then to section 60CC(3)(b). I, again, note the submissions of each of the parties in relation to this particular factor insofar as it is addressed in both their case outlines and in oral submissions before the Court.
The father’s submissions didn’t take issue with the nature of the children’s relationship with the mother, save for the anxiety, it was suggested, they had “taken on” because of her.
I am satisfied from all of the evidence that the mother will continue to encourage the children’s relationship with the father.
Whilst the father’s proposal, and one of the proposals floated by the Independent Children’s Lawyer, will offer the “prospect” only of a more “normal” relationship that comes with significant uncertainty and, in light of the history of this matter, risk.
Ultimately, this factor will be weighed along with all of the other relevant considerations.
Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about long term issues in relation to the child and to spend time with the child and to communicate with the child
Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled or failed to fulfil, the parents’ obligations to maintain their child
Turning then to both section 60CC(3)(c) and section 60CC(3)(ca). I, again, note the submissions of each of the parties in relation to this particular factor insofar as it is addressed in both their case outlines and in oral submissions before the Court. The evidence doesn’t bear out the claims made by the father in written submissions. To be fair, the focus of the parties at the hearing was not on matters relevant to these factors but instead, sadly, focused on a struggle for control or, really, a battle over time for the children with the father.
Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including grandparent or other relative of the child), with whom he or she has been living
Turning then to section 60CC(3)(d). I, again, note the submissions of each of the parties in relation to this particular factor insofar as it is addressed in both their case outlines and in oral submissions before the Court.
The concerns that arise for these children by reason of this particular consideration are self-evident from the discussion of the evidence referred to above.
Importantly for the purposes of this consideration is the inherent uncertainty in one of the options put forward by the Independent Children’s Lawyer and the recognition as inherent in that submission that if the Court was not satisfied the safeguards would work, then the arrangements should stay the same.
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Section 60CC(3)(e). I, again, note the submissions of each of the parties in relation to this particular factor insofar as it is addressed in both their case outlines and in oral submissions before the Court.
Relevant to this factor is not only the evidence regarding minimising interaction between the parents, but also the practicality of the safeguards that Mr V’s evidence made clear were mandatory if the Court were to consider the father’s proposal and most of which were adopted in one of the Independent Children’s Lawyer’s alternative proposals. I shall return to that issue later in these reasons.
Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Section 60CC(3)(f). I, again, note the submissions of each of the parties in relation to this particular factor insofar as it is addressed in both their case outlines and in oral submissions before the Court. No criticism was advanced or can be sustained on the evidence regarding the mother in relation to this particular factor.
Whilst the father’s submissions sought to make a virtue out of his ability to provide for the children’s needs because of the “observed bond”, those submissions failed to engage with the issue of his history of and propensity for violent and antisocial behaviour, and whether that limited or adversely impacted on his ability to do so.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
Section 60CC(3)(g). I, again, note the submissions of each of the parties in relation to this particular factor insofar as it is addressed in both their case outlines and in oral submissions before the Court.
I note the ages of the children but for the purposes of this matter, consideration of the parents under this factor is, in my view, more important.
The change of circumstances claim by the father is based, at least in part, upon his evidence that he has changed since the 2012 Orders. However, the weight of evidence is that, since then, his aberrant behaviour has continued.
The father claims that his problems with alcohol have been addressed. While it is commendable that the father has taken steps to do so, I am not satisfied on the evidence the father has adequately addressed his behavioural problems.
Section 60CC(3)(h) isn’t relevant to these proceedings.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Turning then to section 60CC(3)(i). I, again, note the submissions of each of the parties in relation to this particular factor insofar as it is addressed in both their case outlines and in oral submissions before the Court. Significantly for the purposes of this factor is the entrenched distrust and inability to communicate between the parents.
The evidence in this case satisfies me the father has little respect for any view that doesn’t accord with his own view and that disrespect has been at the root of so many of his problems.
The experts in this case make clear the mother’s reasons for her attitude are entirely explicable. The revealed history indicates the father’s attitude is a significant and adverse factor for the purposes of this consideration.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family; and Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the other, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the Court in, or in proceedings for, the order, and any other relevant matter
I, again, note the submissions of each of the parties in relation to these factors insofar as it is addressed in both their case outlines and in oral submissions before the Court. The issue of family violence and its insidious consequences does cast a giant shadow over these proceedings. Whilst there was a recognition on behalf of the father of the history of family violence, as the comments earlier make clear, the repeat behaviour belies the truth of the claims of the father that he has changed.
I note the submission of the Independent Children’s Lawyer and am satisfied that issues relevant to these factors weigh heavily against the father’s proposals.
Section 60CC(3)(l) – whether it wold be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Section 60CC3(l). As the discussion earlier makes clear, there is no doubt, in my view, that it is in the best interests of the children that the litigation in this matter come to a conclusion.
Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant
In terms of section 60CC(3)(m), there are no other facts or circumstances which have not already been considered that I consider relevant.
Parental responsibility
Turning then, in light of the consideration of those section 60CC factors, to the issue of parental responsibility. When considering the specific parenting orders that should be made, it is appropriate to start with the consideration of parental responsibility. Section 61B of the Act states:
“61B [Meaning of parental responsibility] In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Section 61C of the Act provides for each parent to have parental responsibility, subject to any parenting orders, even if the parents are separated. However, in considering the appropriate parenting orders, a presumption that is in the best interests of the child or children for parents to have “equal shared parental responsibility” arises as a result of section 61DA which provides:
“61DA [Presumption of equal shared parental responsibility when making parenting orders]
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.”
The effect of an order for shared parental responsibility is set out in section 65DAC of the Act as follows:
““65DAC [Effect of parenting order that provides for shared parental responsibility]
(1)This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons that the decision has been made jointly.”
Section 61DA requires the Court to apply a presumption that is in the best interests of a child or children for the parents to have equal shared parental responsibility for a child. However, in summary the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in:
a)abuse of the child or another child, who at the time, was a member of the parent’s family (or the other person’s family); or
b)family violence; or
c)there is evidence (as I’m satisfied there is in this case) that would point against it being in the bests interests of the children for the parents to have equal shared parental responsibility.
Given the history referred to earlier, the intervention order proceedings, the evidence of Mr V, either section 61DA(2) or section 61DA(4) indicate that the presumption of equal shared parental responsibility should be rebutted. I find accordingly.
An order for equal shared parental responsibility anyway is contra indicated. To accede to the father’s application in relation to parental responsibility is not something the Court can or should do. To do so would require the Court to ignore the long, acute and deeply troubling history of family violence, dysfunctional parenting and to ignore the expert evidence before the Court on that issue. I note in particular Mr V’s definitive evidence in that regard in relation to parental responsibility.
In this case the evidence is that there is no civil relationship between the parties, no effective communication, no goodwill, no evidence their parenting styles are similar, no evidence they have a commitment to such an arrangement. The evidence is their relationship is characterised by mistrust, suspicion, an inability to communicate, let alone negotiate. In light of all of the evidence I’m not satisfied the parents could share parental responsibility equally in such a way that there wouldn’t be adverse consequences for the children.
In Goode & Goode (2006) FLC 93-286 at paragraphs 37 to 39, the Full Court discussed the differences between section 61C and section 61DA. Those provisions were also considered in Pavli & Beffa (2013) FamCA 144 where it was said inter alia:
““PARENTAL RESPONSIBILITY” AND “SHARED PARENTAL RESPONSIBILITY”
“11.Section 4 FLA defines parental responsibility (as used in Part VII FLA) as having the meaning given by s 61B FLA. Section 61B FLA provides that parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority, which by law, parents have in relation to children.
12.Section 65DAC FLA deals with the effect of a parenting order that provides for shared parental responsibility about major long term issues and is as follows:
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly. [emphasis added]
13.The phrase “major long-term issues” is defined in s 4 FLA as follows:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [emphasis in original]
14.Although the definition of major long term issues is not limited to those matters listed, in reality, the list is very comprehensive and covers most of those usually encountered in practice.
15.As can be seen, s 65DAC FLA provides that any “shared parental responsibility” order about major long term issues creates three statutory requirements:
o 15.1 Consultation (s 65DAC(3)(a) FLA);
o 15.2 Genuine effort to come to a joint decision (s 65DAC(3)(b) FLA);
o 15.3. Decisions to be made jointly (s 65DAC(2) FLA).
16.The solution to any ultimate impasse between parties who share parental responsibility is for the parties to seek an order about a particular major long-term issue from a court.
“EQUAL SHARED PARENTAL RESPONSIBILITY”
17.Although the FLA defines the terms “parental responsibility” and describes what “shared parental responsibility” requires, the phrase “equal shared parental responsibility” is not defined. That is because the word “equal” does not really require further definition.[1] Equal is a word like “unique” or “pregnant”. Something is either equal or it is not equal. As I have said earlier, parental responsibility is defined as all the duties, powers, responsibilities and authority by which, by law, parents have in relation to children. Equal shared parental responsibility means that each parent equally has all of those things.
18.Section 61C FLA provides if there is no contrary court order, each parent has parental responsibility. When that type of equal parental responsibility is exercised, it need not be described as “shared”, as decisions about major long term issues can be made either jointly or independently.
19.“Equal shared parental responsibility” can only be created by court order. The expression “equal shared parental responsibility” is prone to being used loosely when orders are framed. It is important to understand the work that the phrase “equal shared parental responsibility” does in the FLA when considering using those words in an order. The expression only appears in Part VII FLA in ss 61DA, 61DB, 65D and 65DAA. Of those provisions, s 61DA and 65DAA are of most relevance in this discussion.
20.Section 61DA FLA creates a legal presumption that applies when making a parenting order (most relevantly an order for the allocation of parental responsibility).
21.In cases where a parent of a child has not engaged in abuse of a child or family violence, s 61DA FLA provides that when making an order dealing with the allocation of parental responsibility between parents,[2] the court must apply the presumption of equal shared parental responsibility. The application of the presumption would lead the court to make an order for equal shared parental responsibility, unless the presumption is rebutted because the court was satisfied that it would not be in the child’s best interests to order that each parent have equal shared parental responsibility for decisions about all major long term issues.
22.It is not when the presumption of equal shared parental responsibility exists, but rather, only when an order for equal shared parental responsibility is made or proposed to be made, that the provisions of s 65DAA are triggered and the court needs to firstly consider equal time and if not, substantial and significant time (MRR & GR [2010] HCA 4; (2010) 240 CLR 461).
…
42.As the Full Court emphasised in Goode & Goode and as I have mentioned above, if no order is made at all then the provisions of s 61C FLA provide that parental responsibility can be exercised either independently or jointly…”
More recently, in Carelli & Guilleaer (2015) FamCA 81 at paragraphs 70 through to 81 the approach above was respectfully adopted. In this case such an approach is equally apt.
In the circumstances, and given the reasons already set out above where there was no evidence at the trial this was an issue, or had been between the parties, or that it was in the children’s best interests for the mother to have sole parental responsibility. This issue seemed very much an afterthought to the parties at least. I note the mother didn’t ask the Court to, and I am not able to, make an order for sole parental responsibility. As under the 2012 Orders, s.61C will otherwise apply.
What parenting orders should be made
Turning then to what parenting orders should be made. As for the reasons set out above, the Court has decided that the presumption under the Act of equal shared parental responsibility is rebutted. The Court is not required to consider section 65DAA seriatim.
Neither party sought an order for equal time and I am satisfied it’s not in the children’s best interests or reasonably practicable in light of my consideration of the relevant section 60CC factors.
It is not in dispute that the children should continue to live with the mother. What was in dispute was the time the children should spend with the father.
The preparation of the family report by Mr V puts the Court in the fortunate position of having Mr V’s assessment of each of the parties’ proposals.
Neither of the children supported the father’s proposal, nor did Mr V, who was very circumspect about the only other option, being as set out in the Independent Children’s Lawyer’s alternative proposal. In any event, Mr V was crystal clear that this was a matter in which there was no optimal or easy solution.
Contrary to the father’s claims, I am not satisfied he has demonstrated insight into and a preparedness to accept and be accountable for the family violence he perpetrated and its consequences for all involved in the family unit. The father’s evidence was remarkable for the repeated focus on what he wanted and the complete absence of any understanding that a violent male is the very antithesis of a proper male role model let alone a viable, productive or proper father figure.
Given Mr V’s evidence that predictive considerations are most important in this case, that there are “no guarantees”, given the father’s past behaviour and that the safeguards that he made clear were necessary were of themselves inherently “uncertain”, I am not satisfied the father’s proposal is in the children’s best interests.
Given the evidence before the Court, I am also not satisfied that the safeguards put as an option by the Independent Children’s Lawyer to one of its alternatives are appropriate.
Whilst there is every reason to understand and be sympathetic with Ms J’s desire to put herself forward as someone who can be relied on, it is impossible to ignore her relationship with the father and that this could cloud her ability to prioritise the children’s best interests when or if forced to choose between the father and the children.
The panoply of possible injunctions proffered by the Independent Children’s Lawyer (as safeguards) have to be viewed against the undisputed history of this matter. I find there is little likelihood of deterring or restraining the aberrant behaviour by the father who, the evidence is, has such a demonstrated propensity to engage in impulsive, selfish, antisocial and other like behaviour, all of which would be antithetical to the children’s best interests. This mitigates against those proposals being considered further.
The provision to attend upon Ms S, were it not being considered in a vacuum about the motivations for, the independence of, and the information gathered from the father’s present involvement with her, would warrant detailed consideration. However they’re not. There is also the revealed history of the father’s less than satisfactory engagement with Dr J to consider in the context of this as well.
Finally, there is the very important issue of fashioning some form of orders more likely to promote certainty, security and stability for the children and less likely to lead to further proceedings.
A final order could provide a release for the children relieving them, their parents and associated persons from the stress and financial cost of ongoing proceedings.
Any order that provided for conditions to be met would run the risk of further and ongoing proceedings. This case is one in which it is preferable to make the order that would be least likely to lead to the institution of further proceedings.
There may well be ongoing conflict between the parents but, to all appearances, the children have been well-served by the time they spend with each parent and under the 2012 Orders. There are, however, grave concerns as to the ramifications of the 2012 Orders and the present arrangements being changed and the suggested basis upon which they could put condition upon condition upon condition which can’t be guaranteed and raise issues as to risk to the children.
Conclusion
Whilst this will be very difficult for the father and his family to bear, it is in the best interests of these children that they get on with their lives and that their time with the father continue in accordance with the 2012 Orders. After considering the evidence and the submissions in light of the structured discretion contained in the Act, the Court is satisfied that orders in the same terms as the 2012 Orders are in the children’s best interests and I so order.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 13 October 2015
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