Newton & Henzel
[2016] FamCA 323
•6 May 2016
FAMILY COURT OF AUSTRALIA
| NEWTON & HENZEL | [2016] FamCA 323 |
| FAMILY LAW – PRACTICE AND PROCEDURE - Application to reopen – Rice & Asplund (1979) FLC 90-725 considered – where final orders have been made that the mother have sole parental responsibility, the children live with the mother and the children spend no time with the father – where the father seeks to reopen parenting proceedings in relation to parental responsibility and his time with the children – no significant change of circumstance shown to justify reopening – application to reopen dismissed |
| Family Law Act 1975 (Cth) |
| DL & W [2012] FamCAFC 5; (2012) FLC 93-496 Freeman & Freeman (1987) FLC 91-857 McEnearney & McEnearney (1980) FLC 90-866 Lowe v Lowe (Unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990) Poisat & Poisat (2014) FLC 93-597 Rice & Asplund (1979) FLC 90-725 SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 |
| APPLICANT: | Mr Newton |
| RESPONDENT: | Ms Henzel |
| FILE NUMBER: | DGC | 3041 | of | 2012 |
| DATE DELIVERED: | 6 May 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 21 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bayliss |
| SOLICITOR FOR THE APPLICANT: | Powell Bayliss Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Weerappah |
| SOLICITOR FOR THE RESPONDENT: | Bayside Solicitors |
Orders
IT IS ORDERED THAT
The father’s Initiating Application filed 19 November 2015 and the mother’s Response to Initiating Application filed 21 December 2015 be dismissed.
The questions of costs arising out of or incidental to this application be reserved for determination.
On or before 4.00 pm on 6 June 2016 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to this application.
On or before 4.00 pm on 20 June 2016 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to this application.
All extant applications save and except for any applications for costs, be otherwise dismissed and the matter be removed from the list of pending cases awaiting hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newton & Henzel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 3041 of 2012
| Mr Newton |
Applicant
And
| Ms Henzel |
Respondent
REASONS FOR JUDGMENT
On 15 August 2014 I made final orders that the mother have sole parental responsibility for the children of the marriage B and C born … 1997, D born … 2002, E born … 2005 and F born 2 … 2007 and that the children not spend any time nor communicate with the father. A final order had previously been made by consent by Senior Registrar FitzGibbon on 5 April 2013 that the children live with the mother.
The matter proceeded as an undefended matter at the hearing before me on 7 May 2014 as the father had not complied with the orders for the filing of documents, did not appear and was not represented at the hearing that day.
On 19 November 2015 the father filed an Initiating Application seeking both interim and final orders in the following terms:
1.THAT the parties have shared parental responsibility for the children D born … 2002, E born … 2005 and F born … 2007 (“the children”);
2.THAT the children live with the mother.
3.That the father spend time with the children as follows: (a) Under supervised care through L Care Suburb I
4.Any other orders that this Honourable Court deems fit
The mother in her Response to Initiating Application filed 21 December 2015 sought orders dismissing the father’s application based upon the rule in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) and that the father be restrained by injunction from bringing any further parenting proceedings without the leave of a court having jurisdiction under the Family Law Act 1975 (Cth) (“the Act”). The mother did not proceed with her application for injunctive relief restraining the father from issuing further proceedings although I note that her counsel indicated that she may at some later date make application for a vexatious proceedings order, which in my view is the order the mother would need to seek if she wished to place limits upon the father instituting further proceedings for parenting orders.
On that basis the only issue I am required to determine is whether or not the father should be permitted to bring a further application for parenting orders, in this case orders that he spend supervised time with the three youngest children of the marriage who are still under the age of 18.
Background
The history of the relationship and the proceedings and what led to the orders made 15 August 2014 is set out in my reasons delivered that day.
The father and mother commenced cohabitation in 1996 and married in 1998. The parties separated in August 2010 after C disclosed that she had been sexually abused by the father.
On 10 March 2011 the father entered guilty pleas and was convicted of the following offences:
·three counts of an indecent act with a child under 16;
·two counts of attempt to procure for sexual penetration of a child under 16;
·four counts of contravening a Family Violence Intervention Order;
·one count of make threat to kill, threat to inflict serious injury, stalking another person;
·one count of using a carriage service to menace;
·two counts of using a telecommunications service to harass;
·driving under the influence of intoxicating liquor;
·failing to give name and address following an accident when property was damaged;
·unlicensed driving; and
·careless driving.
The father was sentenced to an 18 month term of imprisonment with a minimum of 10 months and was placed on the Sex Offenders Register. The father was released on 10 March 2012, he deposes at paragraph 9 of his Affidavit filed 19 November 2015 to having served the full 18 months because he could not find accommodation that would meet the parole criteria.
The father’s evidence is that in 2014 he was sentenced to a 12 month term of imprisonment for drink driving offences and similarly served the full 12 month term because once again he was unable to find suitable accommodation.
At the time of the hearing before me in 2014 the father had not seen or spent time with any of the children since August 2010. As a consequence of the orders I made on 15 August 2014 that remains the position.
Legal Principles
In Rice & Asplund Evatt CJ said at page 78,905 as follows:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for … change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…
In McEnearney & McEnearney (1980) FLC 90-866, referring to the decision in Rice & Asplund, said at page 75,499 as follows:
… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
Strauss J said in Freeman & Freeman (1987) FLC 91-857 at pages 76,470 to 76,471 in relation to the effect of ongoing litigation as follows:
The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
Although there have been amendments to the Act, not only does the rule in Rice & Asplund apply but as pointed out by the Full Court in DL & W [2012] FamCAFC 5; (2012) FLC 93-496 the provisions of s 69ZN of the Act, which sets out the principles the court must apply in child related proceedings, apply to a hearing where the rule in Rice & Asplund is being relied upon. The first of those principles set out in s 69ZN is that the “… the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings”.
The rule in Rice & Asplund may be applied as a preliminary matter or at the end of a full hearing. As Warnick J observed in SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 at paragraph 48, which has been endorsed by the Full Court (see Marsden v Winch [2009] FamCAFC 152, DL & W (supra)):
(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice & Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv)Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi)“Shorthand” statements of the rule may contribute to its misapplication.
(vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
Warnick J in support of his observations with respect to the application being dealt with on its merits also said that:
71. An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
81. … when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
…
84. … The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.
In the more recent case of Poisat & Poisat (2014) FLC 93-597 the Full Court referring to the observations of Warnick J in SPS & PLS (supra) expressed their doubts at paragraph 54 “… as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made”.
The parties agreed that the Court should determine the threshold issue as a preliminary matter in this case. I am satisfied that to do otherwise in all of the circumstances of this case would almost certainly cause the mischief that the rule in Rice & Asplund is intended to protect against.
Notwithstanding the observations of the Full Court in Poisat & Poisat (supra), having regard to the best interests of the children in this case, I have considered those of the s 60CC of the Act considerations that are relevant to the particular circumstances of this case and the issue I am required to determine. I will refer to these matters in more detail later in these reasons.
Evidence
The father relied upon the following documents:
·Initiating Application filed 19 November 2015;
·Affidavit of the father filed 19 November 2015; and
·Proposals to Outline of Case by Applicant Father filed 17 March 2016.
The mother relied upon the following documents:
·Response to Initiating Application filed 21 December 2015;
·Affidavit of the mother filed 21 December 2015;
·Affidavit of the mother filed 1 February 2016; and
·Outline of Case and Argument of Respondent Mother filed 12 February 2016.
The standard of proof in this case is the balance of probabilities. In deciding whether a party has met that standard the court must consider the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged (s 140 Evidence Act 1995 (Cth)).
This matter proceeded, by agreement, on the papers and submissions, that being a course open to the Court (see Lowe v Lowe (Unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990)). In circumstances where neither the father nor the mother were cross-examined and their evidence is untested the Court must treat the contested evidence with some caution focusing instead on the unchallenged and uncontested evidence. However in this case it is not so much a question of whether or not the evidence is to be accepted but the sufficiency of that evidence and whether, even if it is accepted, it demonstrates a sufficient change of circumstances.
Discussion
The father in this case seeks a parenting order both with respect to parental responsibility and that he spend unspecified time with the three youngest children supervised by L Care Suburb I. That would require the discharge of the final orders made 15 August 2014 that the mother have sole parental responsibility and that the children spend no time with the father.
The Court may, in determining the threshold issue, have regard to the grounds based upon which the order or orders which the applicant seeks to vary or discharge was made. In my reasons for judgment delivered on 15 August 2014 I made a number of findings which in my view are of particular significance to the determination I am now required to make. They include the following:
·Although the father suggests that he was drunk and medicated at the time of the offences and had never committed such acts with [C] before, the father has entered a guilty plea to three counts of committing an indecent act with a child under 16 and two counts of attempting to procure a child under 16 for sexual penetration. These are serious offences and the mother deposes that [C] still has nightmares and issues surrounding that sexual abuse (paragraph 58);
·I am satisfied that it would expose the children to an unacceptable risk of physical and psychological harm to have any face-to-face or other interaction with the father. The risk to the children includes what I am satisfied is the unacceptable risk of sexual abuse, and I note that in its letter to the court dated 31 October 2012 DHS reported that the father had ‘scored on the Static 99 actuarial tool as being Moderate-High Risk Category for being charged or convicted of another sexual offence and he has not completed treatment through the Sex Offenders Program.’ (paragraph 60);
·Although the father deposes that he had seen a psychologist for nine months at the Melbourne Remand Centre, on the father’s own evidence this was ‘for depression’. There is no evidence that the father has addressed or sought treatment in relation to his sexual offending. Further, the pending charges in relation to the father’s alleged failure to comply with his reporting obligations under the Sexual Offenders Register does not give me any confidence that he is well motivated to address the issue of his sexual offending. (paragraph 61)
·I also accept the mother’s unchallenged evidence that the father has over a number of years also engaged in physical and emotional abuse of herself and the children and that the ‘trauma caused to the children has had a significant impact on the children’s development and emotional stability requiring counselling.’ The mother deposes to the child [B] having to deal ‘with a lot of issues of verbal abuse and physical abuse directed to him by his father.’ In this case, not only was it necessary for the mother to obtain a family violence intervention order to protect her and the children but the father has convictions for breaching that order. (paragraph 62);
·The tension between the children having a meaningful relationship with the father and the potential for the exposure of the children to abuse by the father in this case is stark. There is no evidence before me that would lead me to conclude that the children would benefit from having a relationship with the father or, for that matter, that any such a relationship could in all of the circumstance of this case be meaningful, even if orders could be fashioned that would protect them from the risk of abuse. (paragraph 74);
·The mother deposes that the father was both physically and verbally abusive to her throughout their relationship. She also deposes that over a number of years the father engaged in physical, sexual and emotional abuse of both her and the children and that the trauma caused to the children has had ‘a significant impact on the children’s development and emotional stability requiring counselling.’ The mother described [C] in particular as still having nightmares and issues surrounding the abuse. The mother describes the children as being ‘terrified of [the father] and wanting nothing to do with him.’ Given the circumstances of this case, that would not be surprising. I accept the mother’s evidence. (paragraph 76);
·The children have been in the mother’s sole care since August 2010 and she has been responsible for the day-to-day and long-term decisions required for their care since that time. The mother describes the children as being well settled in her care. The mother deposes that she ensures all of the school-aged children attend school appropriately. I accept her evidence. The father does not pay any child support for the children.(paragraph 81);
·Whilst the mother, as reported by DHS, has demonstrated the capacity to provide for the children most notably by acting protectively in response to the risk posed by the father, the father on the other hand has not demonstrated a responsible attitude to parenting or the capacity to prioritise the children’s welfare. (paragraph 82);
·Although the father did plead guilty to the sexual abuse of [C], in both of his affidavits filed 28 September 2012 he minimises the seriousness of these offences. Following an interview with the father in early 2012 DHS reported that ‘he showed no insight into the impact of his offences nor did he accept responsibility for his actions.’ (paragraph 83);
·The father was also reported by DHS in its letter to the court dated 15 April 2014 to be ‘actively trying to locate’ the mother and the children ‘by contacting family and friends of [the mother’s] via telephone and [Facebook], and also contacting the children’s school.’ This behaviour demonstrates the father’s lack of insight into the possible negative impact of his actions upon both the mother, who is primarily responsible for the children’s care, and the children themselves and in particular [C], in circumstances where the mother says that they are all fearful for their safety. (paragraph 84);
·Although the father deposes in his affidavit sworn/affirmed 5 July 2012 that he has completed ‘Drug and Alcohol courses at … Remand Centre and …’, it was reported by DHS in the letter addressed to the court dated 31 October 2012 that ‘the father has been scored on the Static 99 actuarial tool as being Moderate-High Risk Category for being charged or convicted of another sexual offence and he has not completed treatment through the Sex Offender Program.’ The father in both of his affidavits neither acknowledges the seriousness of the offences for which he was convicted nor does he depose to any steps he has taken in any real sense to address those issues. (paragraph 85); and
·The father’s conduct and in particular his sexual abuse of [C] is a fundamental breach of his responsibilities as a parent. (paragraph 86).
The father in his Affidavit filed 19 November 2015 in support of his case that there has been a significant change in circumstances deposes that:
·due to his problems with drink driving he no longer consumes alcohol and does not associate with any of his former companions in the Suburb I area (paragraph 14);
·he now realises that his offending has caused irreparable harm to the family, but that it was linked to a breakdown (paragraph 14);
·he has no recollection of the indecent act committed against his daughter and had no prior history of such offences (paragraph 15);
·he puts his offending down to mental health issues he was struggling with at the time;
·having stopped drinking his outlook on life is far more positive and he looks forward to being a good father to his children (paragraph 15); and
·he now has a stable home and work environment (paragraph 15).
The father tendered a letter from Dr P dated 17 March 2016 (Exhibit F1). That letter said as follows:
This letter is to confirm that [the father] was referred to me, for psychological treatment, by his local G.P. He has attended for an initial session on 16th March 2016. He has another follow up session booked for the 30th March 2016.
Significantly in my view the letter did not give any reason for the father’s referral to Dr P or provide any insight into the father’s current mental health, the issues he is addressing or what treatment is proposed. It also raises the question of why it is that the father has now sought psychological assistance given the findings based upon which the orders were made and given that his Initiating Application was filed on 19 November 2015 before he had even sought that assistance. The letter from Dr P is of limited assistance to the Court in these circumstances.
The father also tendered three payslips dated 24 February 2016 and 8 and 9 March 2016 (Exhibit F2). It was the father’s case that he is employed on a permanent casual basis. At their highest the payslips demonstrate that the husband has worked on a casual basis for a varying number of hours on those days he has worked between 10 February 2016 and 2 March 2016. I am not satisfied on the basis of those payslips that the father is now in stable employment.
I previously made findings that the father presented an unacceptable risk of abuse to the children, that the mother and the children had been exposed to family violence, that the children were terrified of the father and wanted nothing to do with him, and that he had not demonstrated a responsible attitude to his responsibilities as a parent.
In my view the father has still not acknowledged the seriousness of the offences for which he was convicted nor does he acknowledge the verbal physical and emotional abuse of the mother and the children or their fear of him other than in the most general of terms and in circumstances where he continues to offer the same explanations for his offending and his behaviour generally. Apart from the letter from Dr P there is no evidence that he has taken any steps to address these issues and in particular there is still no evidence of him having sought or completed treatment through a Sex Offenders Program.
The father’s evidence leaves me with little confidence that he has accepted responsibility for his behaviour during the relationship or has as yet in any real sense taken the steps he needs to take to address his problems.
Even assuming the Court was to accept the father’s evidence, the Court would in my view be unlikely on the basis of that evidence, as it currently stands, to make the orders the father seeks. It is difficult to see, leaving aside that question of the practicalities of the father and mother having equal shared parental responsibility, that it would be in the children’s best interests to recommence a relationship with the father based upon his assertions that he has changed absent any convincing evidence that he has addressed the issues which led to the orders he now seeks to revisit being made.
I am satisfied that the risk to these children of further litigation given the circumstances of this case is significant. Any hearing of the father’s application would inevitably require the Court to consider the wishes of the children who are now aged 14, 11 and nine years. They would in those circumstances be involved in that further litigation, as would the mother who is their primary carer. These children have been reliant solely upon their mother for almost six years and the impact upon the mother of further litigation in those circumstances is also a significant factor. In my view the likely negative impact upon both the mother and the children is exactly the harm the rule in Rice & Asplund is intended to prevent.
I am not satisfied that the father’s evidence demonstrates sufficient change in circumstances to warrant the Court entertaining his application. In my view any benefit to the children particularly given the paucity of the evidence as to what are submitted by the father to be the changed circumstances is far outweighed by the likely detriment to them of the uncertainty and stress of further litigation.
I propose in these circumstances to dismiss the father’s Initiating Application filed 19 November 2015. I also propose to dismiss the mother’s Response to Initiating Application filed 21 December 2015. I will further make orders reserving the question of costs arising out of or incidental to this application and will set down a timetable for the parties to file submissions in support of any application for costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 6 May 2016.
Associate:
Date: 6 May 2016
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