Olenghi & Salambo
[2021] FamCA 9
•22 January 2021
FAMILY COURT OF AUSTRALIA
Olenghi & Salambo [2021] FamCA 9
File number(s): ADC 2341 of 2010 Judgment of: BERMAN J Date of judgment: 22 January 2021 Catchwords: FAMILY LAW – CHILDREN – Best interests – Where final parenting orders were made in 2016 – Where the father seeks to discharge and/or amend the orders – Where the mother seeks that the father’s application be dismissed – Consideration of the rule in Rice & Asplund (1979) FLC 90-725 – Where the orders sought by father do little more than propose a different psychologist to undertake reunification counselling – Where there has not been a material change in circumstances – Where therapeutic evidence suggests the father’s conduct has traumatised the child – Where the child has developed maladaptive and adaptive ways to cope with the trauma – Where it would not be in the child’s best interests for further litigation – Father’s Application dismissed. Legislation: Family Law Act 1975 (Cth) s 69ZN Cases cited: Carriel & Lendrum (2015) FLC 93-640
Freeman & Freeman (1987) FLC 91-857
McEnearney & McEnearney (1980) FLC 90-866
Rice & Asplund (1979) FLC 90-725
Salambo & Olenghi [2016] FamCA 994
Searson & Searson (2017) FLC 93-788
SPS & PLS (2008) FLC 93-363
Number of paragraphs: 57 Date of hearing: 16 December 2020 Place: Adelaide Counsel for the Applicant: Mr Wabnitz Solicitor for the Applicant: Daniel John Lawyers Counsel for the Respondent: Ms Ross Solicitor for the Respondent: Angela Ferdinandy ORDERS
ADC 2341 of 2010 BETWEEN: MR OLENGHI
Applicant
AND: MS SALAMBO
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
22 JANUARY 2021
THE COURT ORDERS THAT:
1.The Initiating Application filed 27 September 2019 and the Response to Initiating Application filed 13 December 2019 are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Olenghi & Salambo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Initiating Application filed 27 September 2019, Mr Olenghi (“the father”) seeks to discharge and/or amend paragraphs 4 and 5 of final parenting orders made on 23 November 2016 in respect of B born in 2007 (“the child”). The father further seeks that the parties attend upon a psychologist or counsellor for the purpose of providing the child with “Reunification Counselling”[1] in preparation for the child to spend unsupervised time with the father.
[1] Initiating Application filed 27 September 2019, page 2.
By her Response to Initiating Application filed 13 December 2019, Ms Salambo (“the mother”) seeks that the father’s Initiating Application be dismissed.
BACKGROUND
The child was the subject of contested parenting proceedings between the parties which culminated in a judgment being delivered on 23 November 2016, following an extensive final hearing. The orders made can be summarised as follows:-
(1)That the mother have sole parental responsibility for the child;
(2)That the child live with the mother;
(3)That the mother advise the father within 14 days of decisions made by her in respect of major issues relating to the child’s education and medical treatment;
(4)That there be a graduated reintroduction of time between the child and the father, initially commencing at a children’s contact service and then, following the completion of six supervised visits, an observational report is to be obtained; and
(5)Thereafter the child is to attend upon a psychologist for the purpose of preparing the child for unsupervised time with the father.
At the time of the final hearing there was reason for concern in respect of the child’s mental health. Orders were made for the parties to obtain a mental health care plan and that thereafter the child should attend upon an appropriate health professional. It was anticipated that considerable effort would be required to prepare the child to spend meaningful or any time with the father.
It is uncontroversial that orders for the father to spend time with the child at a children’s contact service was unsuccessful. The father concedes that the child displayed extreme reluctance and opposition to spending time with him irrespective of any requirement for supervision. The focus of the enlivened proceedings is whether the father’s current proposal is viable and to what extent the child’s psychological and emotional wellbeing may be adversely affected.
A more expansive background is included as set out in the final judgment delivered in Salambo & Olenghi [2016] FamCA 994. In summary, the parties met in Country C in 2004 and married in 2005. In 2008 the parties travelled to Australia for a holiday. In that same year the father was offered employment in Australia and thereafter the parties relocated to Australia.
Following unhappy differences and allegations made by the mother that the father perpetrated domestic violence to her, often witnessed by the child, the parties separated in June 2010.
In early 2010 the mother sought the father’s permission to remove the child from Australia, in order to travel to Country C to spend time with the maternal grandmother whose health was poor. The father’s consent was conditional on the parties and the child travelling together to Country C.
In December 2010 the father initiated proceedings in a Country C court seeking to spend time with the child. The orders provided that the father was to spend supervised time with the child each Saturday. The mother apparently facilitated the arrangement until February 2012.
The father returned to Australia in 2011 and sought the return of the child from Country C pursuant to a Hague Convention application filed in the Family Court of Australia. The application was dismissed and the Court found that the child was habitually resident in Country C.
The father returned to Country C in December 2011.
On 17 February 2012 the father did not return the child to the mother’s care following his unsupervised time. The father conceded that he had fled with the child from Country C fearing arrest for the non-payment of child support.
The father and the child spent time in Country GG, Country HH, Country JJ and Country LL before finally settling in New Zealand. The father obtained employment and the child was enrolled in school.
In March 2012 the mother travelled to Australia and it was only in September 2013 that she discovered the whereabouts of the father and the child. The mother travelled to New Zealand and filed a Hague Application which resulted in an order made on 19 November 2013 reuniting the mother with the child.
Final parenting orders were also made by consent on 17 January 2014 which enabled the mother to return to Australia with the child.
It is a relevant consideration for the purposes of the current application that at the time of the child returning to her care, the mother was concerned as to the psychological impact of the father’s conduct on the child. This was summarised in my judgment delivered on 23 November 2016 as follows:-
The mother highlights a number of developmental issues the child faced upon returning to her care. The child’s overall level of functioning was assessed at a low average range. She struggled with language and literacy and following the child attending upon a speech pathologist it was recommended that she continue to receive speech pathology treatment once per week. The mother also says that the child would not respond to her given name “B” and would only answer to “B” which was her second name.[2]
[2] Olenghi & Salambo [2016] FamCA 994 at [18].
The final orders of 23 November 2016 provided for the father to spend time with the child on a supervised basis, at a children’s contact service, for a period of two hours each fortnight and that after the completion of six supervised sessions the father was then to obtain an observational report from the service in relation to his time spent with the child.
Assuming that the relationship between the child and the father had been re-established, the parties were to arrange for the child to attend upon a nominated psychologist for the express purpose of preparing the child to spend unsupervised time with the father.
Thereafter and over a period of 12 months the father’s time with the child would be the subject of graduated increase, with the intention that the child would spend each alternate weekend with the father including overnight time.
The child was reluctant and ultimately refused to spend supervised time with the father.
The father has not seen the child since early 2017. For a significant period the father lived and worked overseas.
By Initiating Application filed 1 February 2019 the mother sought leave to travel with the child to Country X and Country Y between May and June 2019.
Orders were made on 3 April 2019 which allowed for the proposed overseas travel, together with an order removing the name of the child from the Family Law Airport Watchlist.
The current proceedings were commenced by the father on 26 September 2019.
On 20 February 2020 orders were made for the preparation of a Family Assessment Report.
The family consultant summarised the child’s presentation as follows:
[The child] is a 12 year old girl who has experienced upheaval and trauma in her young life. She appears to be resistant to spending time with her father, and given her experiences, it would not be unreasonable to view her resistance as a manifestation of the trauma she has experienced. Given her age and her level of resistance, therapy focused on assisting her to spend time with her father is unlikely to be useful to her and indeed could be harmful. However, therapy aimed at assessing her emotional functioning and her readiness to spend time with her father, (with a report outlining her therapeutic progress) could be useful for the court, and may not be harmful to [the child].[3]
[3] Family Assessment Report dated 28 April 2020, paragraph 32.
Consistent with the recommendations of the family consultant, orders were made on 3 July 2020 in the following terms:
2.That the mother facilitate the attendance of the child upon Dr FF for up to four occasions at the discretion of Dr FF for the purpose of therapeutic assistance to the child in order to ascertain and determine the following:-
(a) The child’s emotional functioning;
(b) Her willingness to spend time with her father;
(c) In the event she is ready, the conditions if such time is to occur.
The mother’s outstanding application to strike out the father’s Initiating Application filed 26 September 2019 was listed for hearing on 11 December 2020. The proceedings were then adjourned to 16 December 2020.
LEGAL PRINCIPLES
The mother’s counsel relies upon the principles as set out in Rice & Asplund (1979) FLC 90-725 (‘Rice & Asplund’) per Evatt CJ at 78,905:-
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…
Should then the principle in Rice & Asplund apply to prevent the father pursuing orders with respect to the child.
In Freeman & Freeman (1987) FLC 91-857 Strauss J said at 76,470 to 76,471:-
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. … 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. … 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.
Warnick J in SPS & PLS (2008) FLC 93-363 (‘SPS & PLS’) observed:-
69.… In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before a court. The nature of the hearing that follows if the Rice and Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.
…
81.Thus, in my view 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.
In McEnearney & McEnearney (1980) FLC 90-866 Nygh J considered the application of what was then the recent decision in Rice & Asplund. His Honour noted at 75,498 – 75,499 that:-
Previously judges tended to view custodial disputes as primarily conflicts between parental rights and this offered a situation in which it would be easier to apply the hallowed principles of res judicata and issue estoppel. This contrasts with the much more flexible approach which is seen in more recent decisions of the Full Court such as in Rice & Asplund (supra).
Having said that I would hasten to add that 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.
The Full Court in Searson & Searson (2017) FLC 93-788 (‘Searson’) considered the application of the rule in Rice & Asplund and referred at [9] to the remarks by Warnick J in SPS & PLS at [10] that:-
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
And by further reference to Warnick J’s remarks in SPS & PLS their Honours held:-
12. Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.
(Footnotes omitted)
In Searson the following appears at 77,458:-
16. In Marsden & Winch the Full Court said:-
[57]. In Miller … the court posed the question:
[105] Adapting the language used by Warnick J in SPS & PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
[58]. That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
(Citations omitted)
(Footnotes omitted)
The mother’s counsel submits that the father has not demonstrated any material change in the circumstances that would justify the litigation continuing.
It is argued that the orders made on 23 November 2016 still continue to have application albeit that it has been recognised by the parties, but in particular the father, that the child remains opposed to spending time with the father. It is not asserted by the father that the mother is preventing the child from restoring a relationship with the father.
The orders sought by the father do little more than propose a different psychologist to undertake the proposed relationship or reunification counselling that the father considers is a necessary precursor before the child can be prepared for unsupervised time with the father.
Whilst of lesser importance, it is noted that the father’s nominated psychologist is no longer prepared to undertake relationship counselling therapy.
SUMMARY THERAPY REPORT DATED 4 DECEMBER 2020
Following orders made on 3 July 2020 for the child to receive therapeutic assistance, the child attended upon Dr FF on 28 October 2020 and 4 November 2020. Dr FF was provided with the limited issues Family Assessment Report dated 28 April 2020, as prepared by family consultant Dr EE.
Dr FF noted that whilst the child was prepared to engage with her without distress, she was keen that the therapeutic engagement be limited describing it as “an unwelcome distraction in her life”[4]
[4] Summary Therapy Report dated 4 December 2020, page 2.
The child described herself as an outcast at school with a higher level of vulnerabilities than her peers. She was keen to fit in but recognised that she has a unique presentation. Unfortunately the child reported that she had been the victim of bullying and name calling.
Dr FF recorded:-
[The child] seems to have developed both maladaptive and adaptive ways to cope with her internal emotional state. She noted that she tends to “talk to myself” using “different voices, different accents”, but has managed to limit this at school after being “judged” for it; this seemed maladaptive in that it increased her emotional disconnection from others and whilst not harmful, may not have progressed [the child’s] emotional and social development. A more adaptive coping mechanism is her creative writing and story telling; [the child] went into great detail describing the fantasy worlds she has created and the characters therein. Consistent themes were present, notably the good versus evil parental figures in her stories, father’s redeeming themselves, mother’s sacrificing themselves and issues relating to gender identity with a central teenage girl/boy figure consistently present. [The child’s] exploration of these themes via the safety of these fantasy worlds can allow her to process her childhood trauma and make sense of her past and present experiences.[5]
[5] Ibid, page 3.
When asked as to her willingness to spend time with the father the child was clear that she did not want to see him and considered that she would be “seeing a man who kidnapped”[6] her.
[6] Ibid.
She did not consider the father to be a good person and viewed him as a stranger. Her family consists of her mother whom she would wish to protect, her step-father and her half-sister.
She also considered that a resumption of her time with her father would mark her as “weird”.[7]
[7] Ibid.
Dr FF recorded that whilst the child did not completely reject some curiosity about the father she considered that he was inherently untrustworthy and remained fearful that he would try and remove her from her mother.
Dr FF was not supportive of a continuation of either reunification therapy or the child spending time with the father. Dr FF considered that the conduct of the father in removing the child from the mother had traumatised the child and was a likely explanation for the child’s current distress and maladaptive functioning.
In Carriel & Lendrum (2015) FLC 93-640 the Full Court said at 80,173:-
57. In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between the parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it was first demonstrated that a sufficient change in circumstances had occurred since the parenting order was made.
CONCLUSION
In considering the application of the rule in Rice & Asplund as a preliminary matter, I am required to exercise my discretion as to the evidence necessary to decide the application.
Section 69ZN of the Family Law Act 1975 (Cth) details the principles for conducting child-related proceedings and is relevant to the exercise of judicial discretion. The following principles in s 69ZN are of relevance:-
Principle 1
(3) The first principle is that 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.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
I place significant weight on the initial assessment of the family consultant and in particular the observations of Dr FF that as a likely consequence of the father’s conduct, the child presents with ongoing trauma that is now displayed by maladaptive behaviours.
There is little to suggest that the child will benefit from further litigation and I find that the likely result is that the child’s traumatised presentation is likely to be exacerbated.
The father has not demonstrated a material change in the circumstances affecting the child and in those circumstances I propose to dismiss the father’s Initiating Application.
A necessary consequence is the dismissal of the mother’s response. Counsel raised no opposition to that occurring.
I make orders as appear at the commencement of these reasons.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 22 January 2021
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