Myron & Milson

Case [2023] FedCFamC1F 1077

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Myron & Milson [2023] FedCFamC1F 1077

File number(s): BRC 4579 of 2022
Judgment of: BAUMANN J
Date of judgment: 15 December 2023
Catchwords: FAMILY LAW – PARENTING – Consideration of Rice & Asplund principles – Where final Orders were made in 2019 for the children to not spend any time with the father – Application to discharge the earlier Orders and to seek new parenting orders dismissed  
Legislation: Family Law Act 1975 (Cth) ss 60CC, 68B, 69ZX
Cases cited:

Defrey & Radnor [2021] FamCAFC 67

Myron & Milson (2020) FLC 93-969

Rice & Asplund (1979) FLC 90-725

Stern & Colli (2022) 65 Fam LR 548

Division: Division 1 First Instance
Number of paragraphs: 35
Date of hearing: 6 December 2023
Place: Brisbane
Solicitor for the Applicant: Litigant in person
Counsel for the Respondent: Mr D Carlton
Solicitor for the Respondent: KLM Solicitors

ORDERS

BRC 4579 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR MYRON

Applicant
AND:

MS MILSON

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

15 DECEMBER 2023

THE COURT ORDERS:

1.That the father’s Application filed 20 April 2022 is dismissed.

2.That if the mother seeks to pursue any application for costs of these proceedings, then:

(a)the mother shall file and serve written submissions, both as to liability and quantum within thirty (30) days;

(b)the father shall have leave to file and serve any written submissions in response within sixty (60) days;

(c)the mother shall have leave to file and serve any written submissions strictly in reply within fourteen (14) days of service of the written submissions; and

(d)unless otherwise ordered, the issue of costs shall be determined on the papers in chambers.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Myron & Milson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

REASONS FOR JUDGMENT

BAUMANN J:

  1. On 22 February 2019, Carew J delivered Reasons and made parenting Orders in relation to four children, B, born 2003, Z born 2005,        X born 2009 and Y, born 2011.  The trial before her Honour was conducted without attendance by the father, who had sought to pursue an application for adjournment at the beginning of the trial, which was refused.  That issue, as well as the hope the…

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AGLC
Myron & Milson [2023] FedCFamC1F 1077
Case
[2023] FedCFamC1F 1077
Decision Date

CaseChat Overview and Summary

In the matter of BRC 4579 of 2022, the Federal Circuit and Family Court of Australia heard an application from Mr Myron (the father) to discharge existing final Orders and to seek new parenting Orders concerning his children. The application was dismissed. The dispute revolves around the parenting arrangements for the children following the separation of the parents and their subsequent divorce. The court was tasked with determining whether the existing Orders, which prohibit the children from spending any time with the father, should be discharged and replaced with new Orders.

The key legal issues the court had to decide were whether the existing Orders should be set aside based on the principles outlined in Rice & Asplund and whether new Orders should be made in their place. The court had to weigh the importance of the children's relationship with their father against their safety and wellbeing. The court also had to consider the father's past conduct and the children's mental health issues.

The court reasoned that the existing Orders, which were made in 2019, were based on a thorough assessment of the children's best interests, taking into account their troubled backgrounds and the father's inappropriate conduct. The court noted the father's history of involving the children in adult issues and making false allegations against the mother, which had undermined his credibility. The court found that there had been no significant change in circumstances since the final Orders were made that would warrant a change in the parenting arrangements. The court dismissed the father's application and emphasised the importance of protecting the children from further harm.

The court made an order dismissing the father's application and setting out the process for any potential costs application by the mother.

Orders

Orders of the court

BRC 4579 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MYRON

Applicant

AND:

MS MILSON

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

15 DECEMBER 2023

THE COURT ORDERS:

1. That the father’s Application filed 20 April 2022 is dismissed.

2. That if the mother seeks to pursue any application for costs of these proceedings, then:

(a) the mother shall file and serve written submissions, both as to liability and quantum within thirty (30) days;

(b) the father shall have leave to file and serve any written submissions in response within sixty (60) days;

(c) the mother shall have leave to file and serve any written submissions strictly in reply within fourteen (14) days of service of the written submissions; and

(d) unless otherwise ordered, the issue of costs shall be determined on the papers in chambers.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The hearing, conducted on the papers in the usual manner about whether the principles of Rice & Asplund (as commonly called), should result in the father’s Application being dismissed. It was heard on 6 December 2023. The reasons which follow explain why the Court has formed the view that the father’s Application should be dismissed.SOME CONTEXTUAL BACKGROUND It was accepted by the parties before me that the starting point for this current application of the father is the Reasons for Judgment and the decision of Carew J. In that regard, at [10]–[20] of her Honour’s Judgment, she provided a background. Those paragraphs of the Judgment are reproduced in this judgment now as follows:10.Before turning to consider the issues, I note by way of background that the mother and father were married for fifteen years before separating in November 2015 and divorcing in 2018. The parents remained under the same roof until early January 2016. 11.Shortly after the separation the father commenced a relationship with [Ms EE] and she moved in with him after about a month. They remained together until [early] 2017. Shortly after that relationship ended, the father re-partnered with [Ms G] and he and [Ms G] share a home for most of the time. The father is 48 and employed [in a professional occupation].12.Shortly after separation the mother commenced a relationship […]. After that relationship ended, the mother formed a new relationship with her current partner, [Mr F], although they do not live together. [Mr F] has four children (all girls) aged 14, 12, 10 and 7 respectively. The mother is 41 and not in employment. 13.At times after separation the parents managed to co-parent and even went on a joint holiday with the children in December 2016/January 2017. 14.After separation the child [B] lived with his father and spent very little time with his mother by his choice until recommencing to live with her and his siblings on 24 September 2018. In the period [early] 2018 to 24 September 2018 [B] lived with a number of people including the father’s sister, [Ms E], and also the father’s former partner, [Ms EE] and her partner [Mr GG]. [B] has been a very troubled boy for some time. He faced criminal charges in 2018 and was dealt with through the Youth Restorative Justice Program. He experimented with drugs in 2018 and absconded interstate with a girl. He has threatened suicide on a number of occasions and has been hospitalised because of concerns for his mental health. He no longer attends main stream school and is under the care of a clinical social worker, a psychologist and a psychiatrist.15.[Z] remained living with her mother after separation but did spend time with the father up until [early] 2018. She is also under the care of a psychologist and a psychiatrist. She too has made a number of threats of suicide and has also been admitted to hospital because of concerns for her mental health. [Z] changed schools towards the end of 2018 and by all accounts is progressing well academically. 16.[X] and [Y] remained living with their mother after separation but spent about equal time with each parent although this seems to have been a recurring source of conflict. There was an interruption in them spending time with the father in [mid] 2016 after [Z] told the mother that the father was physically disciplining the children including slapping her across the face. There was a further interruption from [early] 2018 until the father took [X] from the mother [the following month]. [X] was returned to the mother [three days later]. Between 16 June and 5 October 2018 [X] and [Y] spent fortnightly supervised time with the father. There was a further interruption in the boys’ time with the father after the supervisor withdrew her services and time recommenced on 27 January 2019 but only [Y] attended. [X] refused to get out of the car despite the efforts of the mother and [Ms HH] from the contact centre. The visit between the father and [Y] went well. 17.As a result of an incident that occurred between [B] and [Z] [in early] 2018, [B] was charged with criminal offences […] and the matter proceeded through the criminal justice system’s Youth Restorative Justice Program. 18.[The following month], the father, in the company of [B], removed [X] from [Mr F’s] home while the children were involved in an [activity]. The police were again involved and the father and [B] were charged with criminal offences. [B’s] charges have now been finalised and were dealt with through the Youth Restorative Justice Program but the charges against the father are yet to be heard. 19.[In early] 2018 the father was arrested on charges relating to the incident […] and bail conditions precluded [B] living with the father. The mother, [Z], [Y] and later [X], lived in emergency accommodation for a period after the […] incident. 20.[In early] 2018 [B] was interviewed by police and alleged that his mother had sexually abused him when he was aged ten or eleven. [B] retracted his allegations [later that month] and said that his father pressured him into making the false allegations.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The father, in final submissions, directed me to a number of criticisms in the judgment of the learned Senior Member which I have turned my mind to, but as I say, in my view, they are not significant to the determination I need to make in this case because of their history and the different context in which the Tribunal was assessing the evidence.JUDGMENT OF THE DISTRICT COURT JUDGE It is my view, however, the judgment of the District Court, published late 2023, is more relevant to the issues I now have to consider. This was because, at least, it related to an event that has occurred since the Judgment of Carew J but shows, in the opinion of the District Court Judge, some conduct of the father which her Honour felt was inappropriate. Whilst I accept I received the submission from the father that I should give little weight to the judgment of the District Court Judge, it being fatally flawed and based on the failure, he says, inappropriately, not to allow further evidence from B to be admitted, I do not accept the father’s submission. I do accept there is little utility in the father seeking, on a question of law, to appeal the decision of the District Court Judge in circumstances where the protection order, which was the focus of the appeal, has now expired. Nonetheless, Mr Carlton of Counsel for the mother identified a number of paragraphs in the reasons of the District Court which he says are relevant and support the mother’s primary concern in the matter proceeding further – namely that the father will continue to involve the children in adult issues inappropriately – a critical finding made by Carew J. In particular, I record the following paragraphs from the District Court judgment, namely:[11]… I have read the affidavit submitted on behalf of the appellant and signed by [B]. It concerns me very much that this young man is being used in this way. It is clear from the evidence that [B] was a troubled youth. He was charged with indecent treatment of his sister. He became homeless for a while and was using drugs. He has been attacked during that time. He has had [multiple medical episodes] while living rough on the streets. I have watched the interview between the police and [B] where he withdrew his complaint. His distress and concern about being forced to make the complaint appeared to be quite genuine and believable. His vulnerability is evident.[13]The appellant is a [professional] and it can therefore be assumed he has some grasp on the relevance and weight of evidentiary material. This young man who, as I have already noted, is clearly troubled, has given, on his own version, two false complaints: one against his mother and one against his father. He has withdrawn the complaint against his mother, saying his father coerced him to make it, and now, he is saying that was a lie. He is saying he made up the complaint against his father. He is saying the allegations he made to the police that his father was controlling was a lie. It is impossible now for the Court to be able to consider him a witness of credit, and giving evidence in Court against one of his parents would likely be a traumatic experience for him. I do not propose to put a young person in that position, particularly when it is unlikely to make any difference to the outcome of this appeal.[63]The affidavit signed by [B] and presented in this hearing indicates, in my view, that he still has the capability of causing emotional distress to the aggrieved and has no hesitation in supplying material to that effect.

Ratio Decidendi

Legal Principle Established

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