Oldfield and Geeson

[2016] FCCA 2716

FEDERAL CIRCUIT COURT OF AUSTRALIA

OLDFIELD & GEESON [2016] FCCA 2716

Catchwords:
FAMILY LAW – Parenting – Rice v Asplund argument.

Legislation:

Family Law Act 1975, ss.11F, 69ZW, 60CA, 60CC

Cases cited:

Rice v Asplund (1979) FCL 90-725

Applicant: MS OLDFIELD

Respondent: MR GEESON

File Number: DNC 267 of 2012

Judgment of: Judge Young

Hearing date: 20 September 2016

Date of Last Submission: 20 September 2016

Delivered at: Darwin

Delivered on: 21 October 2016

REPRESENTATION

Counsel for the Applicant: Ms Torney

Solicitors for the Applicant: Torney Legal Pty Ltd

Counsel for the Respondent: Mr Barry

Solicitors for the Respondent: Darwin Family Law

ORDERS

1. That the father send in a draft Minute of Order reflecting the reasons for judgment within 14 days.

IT IS NOTED that publication of this judgment under the pseudonym Oldfield & Geeson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 267 of 2012

MS OLDFIELD

Applicant

And

MR GEESON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a Rice v Asplund application.  The mother seeks to re-open parenting orders about two children, X, aged 10 years, and Y, aged eight years. 

2. Orders were made in the mother’s absence by this Court on 2 July 2013.  The mother had not participated in the proceedings and failed to comply with orders made at different times for filing of material.

3. The orders were that the father was to have sole parental responsibility, that the children were to live with him and spend time with the mother as agreed.

4. The reasons for the mother’s failure to participate in the 2013 proceedings were said by the father to relate to the mother’s unstable and dysfunctional lifestyle at that time.  He relied in these proceedings on an affidavit of the mother’s sister filed in the earlier proceedings.  That affidavit paints a disturbing picture of the mother at that time, with suggestions of personality issues, mental health issues and, possibly, drug issues.  It describes a serious breakdown in the mother’s relationship with her family in Perth, where she now resides.

5. The mother, in her own material, says that she was suffering from depression at that time but has made a full recovery.  No medical, psychological or psychiatric evidence is brought forward in support of that claim.  She asserts that she has mended her relationship with her family and her sister who deposed the affidavit mentioned above.  Again, no evidence is brought forward in support of that claim. 

6. Since the 2013 orders, the children have been spending time with the mother twice a year in Perth.  During the 2015 Christmas holidays, the children went to Perth.  The mother withheld the children at the end of the holidays.  She commenced proceedings seeking orders that the children live with her. 

7. Her affidavit of 15 January 2016 makes two primary allegations.  First, that she noticed bruises on X’s legs and bruises on Y’s buttocks.  She alleged that the likely explanation was excessive discipline by the father.  No photographs or report of a medical examination was obtained.  No report was made to the child welfare authorities – this in circumstances where the mother had previously made reports to child welfare authorities and her complaints were not substantiated.  Significantly, she did not say that either child told her the bruises were caused by the father.

8. Secondly, she alleged that the father left the children unsupervised at times. The father is a (occupation omitted) on a (employer omitted) in Darwin and works long hours and does some shift work. He has employed nannies or, as such person is sometimes described in his materials, an au pair. In more simple terms, he has employed a person to come to his home in the morning to get the children ready for school because he starts work at 6.30am. Sometimes that person is also employed to be at home when the children return from school. The father admitted there has been times when the children were unsupervised. He said that on occasions the nanny had been late, but says that that is not a general rule. He admitted to the author of the section 11F report that there was one occasion when he left the children unsupervised for one and a half hours.

9. The mother’s affidavit also deposed to a recent episode of family violence between her and her partner, Mr E that had been witnessed by the children.  She said that he had struck her on the nose with his elbow during an argument causing her a blood nose.  She excused his conduct on the ground that his father had recently died. 

10. The mother also deposed that she now has two children, A aged two years and B, aged one year.  A suffers from a heart condition.  I was told during these proceedings that the mother is pregnant with a third child.  It was said that the mother’s new family was a relevant change in circumstances. 

11. The father’s affidavit in response denied inflicting the bruises on the children and he said he was not aware of the bruises or the cause, but assumed they were from the children’s play. 

12. The father also deposed that he was engaging the children in counselling because of his concerns about their progress at school and emotional well-being following the family break-up.  A report from the counselling service was annexed to his affidavit.  It reports generally on the children’s progress and refers to two home visits.  The report comments favourably on the father’s engagement with the counselling service. 

13. When the matter came before me on 21 January 2016, I ordered the return of the children to the father.  He gave an undertaking that the children would not be unsupervised by an adult.  I also ordered the parties to file material in preparation for a Rice v Asplund argument.

14. The father’s affidavit of 2 June 2016 annexed correspondence between the father and the mother in March 2014 where the father attempted to have the mother agree to a parenting plan that provided details of the time spent by the children with the mother.  The proposed parenting plan was an appropriate expression of the orders previously made by the Court. In an email to the father’s solicitor she expressed her “disgust” with the father and the father’s solicitor:

    I have contacted children’s services on several occasions and will continue to do so furthermore our eldest child has continued to express how unhappy his life is with his father and has instructed me he wants to return to his home I am disgusted in the approach your client and yourself have used as you both believe praying on someone while they are going through emotional trauma how dare both of you have the audacity to harass me while in (omitted) Hospital with the boys younger brother with two days to go before undergoing open heart surgery at five week’s old I believe you (omitted) were not aware of this but Mr Geeson has been more than aware of this and clearly shows every bit of compassion and understanding and what type of person he is I pray my children will never grow into the man their father is and I will never sign a peace of paper to give Mr Geeson complete control of children again -Note just so Mr Geeson does not have to forward I will clearly write this here: Mr Geeson you are disgusting I am appalled by your actions and furthermore you have not supplied the following information to me as requested – (spelling and punctuation as in original)

15. The mother refused to sign the parenting plan or any agreement.

16. The tone and content of the letter are such as to raise some questions about the mother’s mental health.  Her stated use of the child welfare authorities to further her agenda is disturbing.

17. The mother’s affidavit of 13 May 2016 repeats the allegations about the children being left alone and annexes text messages from X which appear to support that.  There are also annexed text messages from X referring to arguments with the father where the father called X “a pussy” and told him to “man up”.  Also annexed are text messages which clearly show the mother had told X of the terms of the undertaking about leaving the children alone and asked him to report any breach to her.  Other text messages show the mother questioned X about the time the father spends with the children and questioned him about Ms L, the nanny, and her activities.

18. Clearly, the mother has continued to question X and has involved him in the conflict.  She has encouraged him to inform on the father in effect.  In my view, it is difficult to imagine anything more likely to undermine the relationship between X and his father. 

19. The affidavit also contains an allegation that X seriously injured himself at a (hobby omitted) and was taken to hospital.  In fact, X did fall and was taken to a general practitioner and subsequently sent by the general practitioner to the (omitted) Hospital emergency department for a cautionary check.  It turned out that it was not a serious injury at all.

20. The mother also alleged that the children had been left to wait for the school bus for up to half an hour and while doing so Y had pushed X onto the roadway.  The father pointed out in his responding affidavit that the bus stop is 100 metres from home in a semi-rural area and is a bus stop the children have continued to use through their school lives.  In my view, this is a relatively trivial complaint that indicates the mother’s intention to attack the father on whatever basis is available.

21. The father relied on an affidavit of Ms L dated 31 May 2016.  Ms L is the children’s current nanny.  She denied having left the children alone or that the father had done so and she was aware of the terms of the undertaking.  This does not deal with leaving the children at the bus stop.  The father deposes that there are other children present.  While this is strictly a breach of the terms of the injunction, I am not satisfied that it is anything more than a trivial breach.

22. The father’s affidavit of 2 June 2016 denies the mother’s allegations.  The father denies exercising excessive discipline and he denies leaving the children alone unsupervised since the undertaking.  

23. I ordered a section 11F report which was completed on 22 August 2016. Some agreement was reached that no physical discipline of the children would be administered and there were to be no questioning the children about matters relevant to the proceeding.

24. The notable fact observed by the family consultant was X’s antipathy to the father.  He rated time with his father 0/10.  He alleged the father hit him with a belt and yelled and swore at him.  However, the family consultant observed that, inconsistently with those claims, X did not appear fearful of the father and was not manifestly upset when recounting these matters.  X described the father as “evil”.  He described the nanny, Ms L, as an “evil devil”. 

25. Y rated his time with his father as 10/10, his time with the mother as 5/10 and time with the mother’s partner, Mr E, as 10/10.  He said that nothing scared or upset him in the father’s house.

26. The family consultant recommended that X continue counselling at CatholicCare and that the father also seek counselling there to improve his relationship with X.  She recommended the For The Kids post-separation parenting course.

27. The family consultant expressed the opinion that existing orders appeared appropriate to the children’s needs.

28. The father tendered a letter from CatholicCare saying that he and X had attended two sessions of counselling and both had engaged well. 

29. It is difficult to know exactly what to make of X’s statements that the father is “evil”.  In contradistinction, Y appears happy with the father.  There are indications that X has been involved in the litigation and has been encouraged by the mother to report on the father.  X shows signs of being involved in the conflict in a way that appears inappropriate and may be showing signs of psychological harm as a result.  It is noteworthy that, given X’s constant reporting to the mother, that she has not raised an allegation that the father struck him with a belt.  I have little doubt that the mother would report that allegation to the child welfare authorities if X made that to her.  There is no evidence of such a complaint. 

30. I was not referred to any case law but the general principle underlying cases such as this is that the best interests of the child are paramount.  The best interests of the child will usually be advanced by ensuring stability in the child’s life and by avoiding repeated applications to the Court unless there is some factor or factors that require a reconsideration of the child’s living arrangements.  There does not appear to be an onus but there must usually be established some significant change in circumstances justifying a reconsideration of the orders.  This is the principle or “rule” in Rice & Asplund (1979) FLC 90-725.

31. The matters advanced by the mother as changes in circumstances justifying reconsideration of the living arrangements were as follows:

    a)Her improved mental health, said to have been brought about her need to care for her two-year-old child with heart disease.

    b)Her two children, A aged two and B aged one, and, I was informed, a third child on the way. 

    c)Her stable relationship with Mr E.

    d)X’s expressed antipathy to the father and wish to live with the mother, recently expressed to the family consultant. 

    e)Lack of care by the father, including allegations of maltreatment of both children.

32. I am far from accepting that the mother’s mental health issues are resolved.  She refers to suffering from depression and a recovery, but no further evidence was offered, particularly medical evidence.  The very serious issues raised in the sister’s affidavit, suggesting a personality issue, mental health problem or drug use or all three, have not been adequately addressed. 

33. While clearly a change of circumstance, the fact that the mother has two children aged two and one and will shortly give birth to another, does not of itself make the order that the mother seeks more likely.  Indeed, given the serious health issues of the two-year-old and, the imminent responsibility for care of another very young child, some examination of the mother’s capacity to care for two more young children would be required. 

34. Her relationship with Mr E is a matter of some concern.  There is an admitted incident of family violence, which appears to constitute an aggravated assault (or at least it would under the Northern Territory Criminal Code).  This took place in front of X and Y.  This is a deeply concerning matter and that concern is not alleviated by the mother’s excuses for Mr E. 

35. The antipathy expressed by X towards the father is of concern, as is his allegation that the father hit him with a belt and yelled and swore at him, notwithstanding the family consultant’s evident doubt of the claims. It is of note that despite repeated complaints by the mother to the child welfare authorities there is no evidence to support abuse of that nature nor did either party seek the issue of a subpoena to the child welfare authorities or an order pursuant to section 69ZW of the Family Law Act 1975. 

36. There is, however, clear evidence that the mother has involved X, in particular, in the conflict between her and the father.  X has been asked to report on any breach of the father’s undertaking, any absences by the father, the conduct of the nanny, conditions in the house, the father’s working hours and so on.

37. The positive regard that Y holds for the father is in stark contrast to the attitude expressed by X.  It is difficult to reconcile these attitudes.

38. The mother’s allegation of maltreatment lacks substance.  She was unable to provide any independent evidence to support her initial allegations against the father.  Most of her other allegations - for example, the injury at the (hobby omitted) - relied on things the children had told her and were inaccurate.  I have little doubt the children, particularly X, have been repeatedly questioned by the mother and encouraged to reveal information about the father.  As mentioned, I can think of little more calculated to undermine the relationship between X and his father.

39. In reaching these conclusions I have borne in mind section 60CA and section 60CC of the Family Law Act.  I have concluded that reopening the question of the children’s living arrangements is not likely to lead to an order that the children live with the mother.  I am satisfied that further litigation is likely to be emotionally and psychologically damaging to the children, and X in particular. 

40. I have regard to section 60CC(2)(ii) which is relevant to this case. I am satisfied that the children have been exposed to family violence in the mother’s household. In my view, that is likely to be a continuing risk.

41. And I have regard to the matters in section 60CC(3) including, most relevantly:

    a)X has expressed views, but I am not satisfied that he has the maturity or understanding that would merit giving those views a great deal of weight.

    b)The mother is some $5000 in arrears of child support.

    c)The capacity of the parents.  The father is parenting in difficult circumstances.  He works as a (occupation omitted) and his job seems to involve long hours and some shift work.  He has employed a nanny, which appears appropriate in the circumstances.  I have serious doubts about the mother’s capacity as a parent, a doubt that is little assuaged by evidence of her willingness to involve the children in conflict. 

    d)Family violence.  I have referred to evidence of recent family violence in the mother’s household. 

42. I propose to dismiss the mother’s application.

43. However, I consider that some further orders are necessary, including specific spend time orders. 

44. I also propose to release the father from his undertaking because I consider that it is inappropriate. I believe there is a real risk that the mother will continue to question the children about that issue, seeking evidence of non-compliance, notwithstanding the agreement of the parties in the section 11F conference.

45. I propose to make an injunctive order restraining the parties questioning the children about the other party’s household or activities. 

46. I propose to make an injunctive order that neither party be permitted to administer physical discipline to the children. 

47. The father’s solicitor should bring in a minute reflecting these reasons within 14 days.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 21 October 2016