Parnell and Anor and Leotta

[2012] FamCA 945

FAMILY COURT OF AUSTRALIA

PARNELL & ANOR AND LEOTTA [2012] FamCA 945

FAMILY LAW – CHILDREN - Application to re-open parenting proceedings based on a change of circumstances – where the mother could not establish a material change in circumstances - where the mother had not established compliance with orders in respect of her mental health – where the mother’s new relationship did not constitute a change in circumstances– where the mother’s contravention application for contravention was otherwise adjourned

FAMILY LAW – COURTS AND JUDGES – Disqualification – where there was an application for disqualification on the basis of apprehended bias - where the Judge had appeared as the independent children’s lawyer in a matter where the mother’s legal representative was a party – where the Court was not otherwise aware of  any basis for disqualification prior to the delivery of its ex tempore judgement – where the timing of the mother’s application did not provide adequate notice to the Court and if accepted would have represented a denial of procedural fairness to the father

FAMILY LAW – LEGAL PRACTITIONERS – Misconduct, unfitness and discipline – where the mother’s representative, not yet admitted as a lawyer, was granted leave to appear – where the mother’s representative’s leave was withdrawn due to her inappropriate and disrespectful conduct towards the bench – where the mother’s representative was referred to the Legal Services Commissioner

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

FIRST APPLICANT: Ms Parnell

SECOND APPLICANT: Mr A

RESPONDENT: Mr Leotta

FILE NUMBER: (P)NCC 625 of 2008

DATE DELIVERED: Ex tempore
1 November 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 1 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Capellia Legal
Ms Lloyd-Smith

COUNSEL FOR THE RESPONDENT: Mr Rugendyke

SOLICITOR FOR THE RESPONDENT: Central Coast Family Law

Orders

1. Leave granted at the commencement of the hearing to Ms Lloyd-Smith to appear on behalf of the Applicants in Court today; leave subsequently withdrawn.

2. That the Application in a Case filed by the Applicants on 2 May 2012 is dismissed.

3. That the oral application that I disqualify myself from continuing to hear the application is refused.

4. That the Contravention Application filed by the mother on 18 June 2012 be listed as soon as reasonably possible before Austin J at a convenient date and time.

5. I grant leave for the father’s solicitor to make an oral application for costs of today’s hearing and the costs of the appearance on 19 July 2012.

6. No later than close of business on 30 November 2012, the Applicants shall file and serve written submissions as to the costs referred to in Order 7 herein and the Court will contemplate a costs order in respect of Capellia Legal, the firm who has represented the Applicants today.

THE COURT NOTES:

(A)That the conduct of LLEINI KATYA LLOYD-SMITH in the hearing today will be referred to the Legal Services Commissioner.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parnell & Anor & Leotta 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 NEWCASTLE

FILE NUMBER: (P)NCC 625 of 2008

Ms Parnell

First Applicant

Mr A

Second Applicant

And

Mr Leotta

Respondent

REASONS FOR JUDGMENT

1. By her Amended Application dated 16 May 2012, Ms Parnell, the mother of B, together with Mr A, the mother’s current partner, have made an application for fresh parenting orders. 

2. On 13 May 2011, her Honour Justice Ryan, made final orders after four days of contested hearing.  A fresh application so soon after final orders puts the onus on the applicant to put before the Court evidence of a change of circumstances.

3. This is known as the principle in Rice & Asplund (1979) FLC 90-725 which says 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. That is the situation here. The application is to reverse the residence arrangements. To do so, their Honours in the case said that:

   To do so would be to invite endless litigation for change is an ever present factor in human affairs.  Therefore the Court needs to be satisfied by the applicant that… 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[1].

   [1] Rice & Asplund (1979) FLC 90-725 at 78.906

4. The applicants relied on the following documents:

   (a)    Amended Initiating Application in which she is joined by Mr A filed 2 May 2012;

   (b)    affidavit of mother sworn 2 May 2012;

   (c)    mother’s affidavit sworn 14 June 2012;

   (d)    affidavit of Mr A sworn 12 June 2012;

   (e)    affidavit of Mr C (the mother’s adult son) sworn 14 June 2012;

   (f)     affidavit of Ms D sworn 14 June 2012. 

5. The father relied on the following documents:

   (a)    affidavit sworn 4 June 2012; and

   (b)    Reasons and Judgment of her Honour, Ryan J delivered 13 May 2011.

6. The application of the father is for the mother’s application to be dismissed.

7. The change of circumstances fairly identified by the father’s counsel raised in the mother’s material, were concerns about:

   (i)     the father’s place of residence;

   (i)     concerns about B’s schooling;

   (ii)    the child’s own wishes;  and

   (iii)     the mother’s mental health. 

Father’s place of residence

1. In respect to the father’s house, I accept that the issue of where the father lives and the circumstances of his residence were fully canvassed in the hearing.  There is reference both in paragraph 180 and paragraphs 185 to 187[2] of the matters that her Honour took into account finding that there was nothing to be concerned about in relation to the child’s residence with her father and extended paternal family.  I consider there is no substance in this issue. 

   [2]  Judgment of Ryan J delivered 13/05/2011

B’s schooling

1. In relation to the child’s schooling, the complaints about schooling relate to matters arising prior to the final hearing and I disregard all matters which are historically before the hearing, the final hearing in 2011.

2. In relation to the child’s wishes I accept that the child’s wishes were canvassed in the final hearing, particularly in pages 216 to 221 inclusive, but in other places throughout her Honour’s Reasons. 

B’s wishes

1. It is clear to me from reading the Reasons and the fresh material that at all times, in the presence of her mother and to third parties, the child has expressed a wish to live with her mother.  The complexity of the case before her Honour in 2011 was, to a great extent, informed by the fact that although the child expressed that wish, it was the view of the mother’s own psychologist and the Court appointed expert, Dr E, that that wish should not be implemented in the child’s best interest.

2. Accordingly, nothing has changed in respect of the child consistently expressing a wish to live with her mother.  It is, of course, impossible to know what wishes she holds within her own heart, but she has certainly expressed a wish consistently over many years to live with her mother. 

Mother’s mental health

1. The evidence before her Honour which she accepted was from Ms F, the mother’s psychologist for a period of time and Dr E, the Court appointed expert.  Both of those medical experts concluded that the mother had a borderline personality disorder, which meant that there were consequences for the child, which were adverse to her best interests. 

2. Her Honour was clearly of the view that the mother herself did not accept any such diagnosis and had no insight into the reason or treatment.  Her Honour made an order that the child live with her father and spend time with her mother for two hours every third week at a contact centre in G Town for a period of, effectively, 12 months.  In the event that the mother complied with order 4(b), then there would be a change in the time that the child could spend with her mother.  That requirement was as follows:

   Provided the mother has, for 12 months from the date of these orders, regularly attended counselling with a psychologist or allied health professional to whom she has provided copies of [Dr E’s] reports dated 21 December 2009 and 18 February 2011 and a copy of the Court’s Reasons, her time with the child shall no longer be supervised, and from the weekend after she has completed 12 months of therapy and for a further period of 12 months, she shall spend time with the child from 5.00 pm Friday until 5.00 pm Sunday in each alternate week.

3. In her application, the mother put forward some material apparently in support of her having complied with the orders.  That material was Annexure ‘A' to the affidavit of the mother filed 2 May 2012, which is a document on the stationery of Dr H, consultant psychiatrist.  It is dated 15 February 2012.  It is unsigned.  There is a second letter from Dr H, also unsigned, dated 25 May 2012. 

4. There are deficiencies in evidence in relation to this material.  The first letter, dated 15 February 2012, is directed to Mr J.  There is nothing in the evidence that provides me with information about what Dr H was told, or what material was provided to him.  Within the letter, Dr H says he has been provided with a copy of a medico-legal report by Dr E in February 2011.  Dr H says that he had seen the mother on four occasions between 20 June 2011 and February 2012, five occasions altogether.  The second letter is directed “To Whom It May Concern.”  The letter suggests that there was simply a request for clarification and in this letter Dr H says that he has now been provided with both reports of Dr E and the doctor says this:

   At our meeting, she (that’s the mother) presented to me the two letters from [Dr  E] and a Court document of 13 May 2011.

5. The deficiencies of the evidence are that, accepted at its highest as if it had been signed, annexed to an affidavit sworn to by Dr H.  What this material suggests is that:

   (i)Dr H saw the mother as an outpatient. 

   (ii)He saw her on five occasions and there is no evidence that he, even after 25 May 2012, had read or considered the Reasons of Ryan J.  Dr H says that after his assessment:

   She does not have a psychotic disorder that needs treatment.  I consider that she has a marked separation anxiety disorder related to her separation from the child.

6. It is difficult to know why there is a reference to the mother not having a psychotic disorder when what was diagnosed was a borderline personality disorder.  In any event, these outpatient visits with Dr H certainly do not constitute 12 months of therapy by somebody who has understood the complexity of this matter and the reasons for the orders that her Honour made. 

7. There is also annexed to the mother’s affidavit of 2 May 2012, a report by Breakthrough, an organisation described as a clinical support team.  This report is dated 23 June 2011 and refers to an assessment of the mother on 3 June 2011.  There is a referral in paragraph 3 of the document for ongoing services, a referral for counselling through the clinical support team.  There is no evidence before me of counselling through the clinical support team or anybody else.

8. Ms Lloyd Smith, on behalf of the mother, said that the Breakthrough clinical support team had referred the mother to Dr H for counselling.  There is no evidence of that referral before me, although it may be the case.

9. Taken together, this amounts to the mother having had an assessment once, approximately a fortnight after the conclusion of the hearing, and having seen Dr H on five occasions between May 2011 and February 2012, and at least part of that time was apparently taken up with asking Dr H to prepare reports coming to a contrary view.  This is clearly not in compliance with the orders that were made.  In that sense, there has not been a change in circumstances in relation to the mother’s mental health since the Reasons for Judgment were delivered in May 2011.

10. On her own case, it was put forward on behalf of the mother, that the significant changes had been that to the extent that the father had, in the past, been assessed by her Honour as flexible and generous in his attitude, he had not demonstrated that by not making the child available for contact since about April or May of this year.  This is to completely ignore the orders requiring the contact to be supervised until 12 months of therapy had been undertaken.  Supervised contact at the Centre was to be for a minimum of 12 months.  Had it taken the mother longer to complete 12 months of therapy, then supervised contact would have gone on for a period.  There is no substance in this ground.

11. It was also put forward that now, at 14 years of age, the child should know who she wants to live with and that should be granted.  That may be generally true in a matter which has not been as contentious and complex as this one has, where four days of the Court’s time was taken to analyse why it was that a girl who was apparently expressing a strong wish to be with her mother, should not be able to be with her mother for her own interests, and that there were aspects of the mother’s personality and mental health history that represented an experience for the child which was not in her best interests.  That she is a year older than the hearing last year is simply inevitable.  There is no substance in this ground.

12. The submission that the mother had, at all times, complied with the orders is simply not the case, on the mother’s own evidence and I do not accept that submission.

13. Annexed to the affidavit of the mother’s partner are pages of transcript of messages that passed between the child and her mother and Mr A, when she was provided with a mobile phone.  Those messages are quite alarming and concerning in themselves.

14. The only other matter that is indirectly raised by the affidavit of the applicants is that the relationship between the mother and Mr K apparently ended between the conclusion of the hearing, which was on 4 March 2011, and May 2011 when the relationship, her relationship with Mr A began.  That the relationship between the mother and Mr K may not be an enduring one, was something that had been identified by her Honour.  The fact that there is a new relationship and a supportive one for the mother is not such a change of circumstance that would justify the re-opening of a hearing in these circumstances.

15. For all those reasons, I consider that there has not been a change of circumstance which would justify the re-opening of parenting issues and accordingly, I dismiss the application.

16. In relation to the applicants’ Contravention Application, that matter will be listed as soon as reasonably possible before his Honour, Austin J at a convenient date and the parties will be notified of that date

17. As a result of her conduct, leave was withdrawn for Ms Lloyd-Smith to continue to represent the applicants. 

18. In circumstances where the applicants were therefore unexpectedly unrepresented, the second application (Contravention) was stood over to another Judge on a future date.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 1 November 2012.

Associate:

Date:  14 November 2012.