Olenghi & Salambo

Case [2021] FamCA 9

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

  1. 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.

  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

  3. The child was the subject…

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Olenghi & Salambo [2021] FamCA 9
Case
[2021] FamCA 9
Decision Date

CaseChat Overview and Summary

In *Olenghi & Salambo*, Berman J of the Federal Circuit and Family Court of Australia considered an application by the father to discharge and/or amend final parenting orders made in 2016. The mother sought the dismissal of the father's application. The original orders had granted the mother sole parental responsibility, with the child to live with her, and provided for a graduated reintroduction of supervised time between the child and the father, followed by psychological preparation for unsupervised time.

The central legal issue before the court was whether there had been a material change in circumstances since the final parenting orders were made in 2016, such that it would be in the child's best interests to revisit those orders. This required consideration of the rule in *Rice & Asplund*, which establishes that further litigation concerning a child's best interests should generally only be permitted if a sufficient change in circumstances has occurred since the making of existing orders. The court also had regard to principles under section 69ZN of the *Family Law Act 1975* (Cth), particularly the need to consider the impact of proceedings on the child and the court's role in managing proceedings.

Berman J applied the principles from *Rice & Asplund*, noting that existing orders reflect the child's best interests at the time of their making and that litigation itself can be contrary to a child's best interests. The court found that the father's proposed changes, which largely involved appointing a different psychologist for reunification counselling, did not demonstrate a material change in circumstances. Crucially, the court placed significant weight on therapeutic evidence indicating that the child continued to suffer from trauma, likely as a consequence of the father's conduct, manifesting in maladaptive behaviours. The court concluded that further litigation would likely exacerbate the child's traumatised presentation and would not be in the child's best interests.

Consequently, the father's Initiating Application was dismissed. The mother's response, seeking dismissal of the father's application, was also dismissed as a necessary consequence.

Orders

Orders of the court

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).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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