THORNTON & THORNTON - [2016] FamCA 152

FAMILY COURT OF AUSTRALIA

THORNTON & THORNTON

[2016] FamCA 152

FAMILY LAW – PARENTING ORDERS – Interim – Variation – Where father accused of sexually abusing the children by the mother – Where trial judge determined the children not at an unacceptable risk in the father’s care – Where the Full Court are reserved in judgment following an appeal – Application dismissed.

FAMILY LAW – CHILDREN – Interim – Whether a parent should be permitted to attend the children’s school – Where there is no express entitlement contained within an order or parenting plan for the parent to attend the school – Where the children are not in the parent’s care, supervised or otherwise.

Family Law Act 1975 (Cth) s60CC

Marsden v Winch (2009) 42 Fam LR 1
Reid & Lynch (2010) FLC 93-448
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Thornton

RESPONDENT:

Ms Thornton

INDEPENDENT CHILDREN’S LAWYER:

Nicola Davies

FILE NUMBER:

BRC

8946

2012

DATE DELIVERED:

16 March 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

14 March 2016

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Bunning

SOLICITOR FOR THE RESPONDENT:

Wiltshire Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Davies

Legal Aid Queensland

Orders

The applicant’s Application in a Case filed 2 December 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thornton & Thornton 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 BRISBANE

FILE NUMBER: BRC 8946 of 2012

Mr Thornton

Applicant

And

Ms Thornton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In October 2012, contested parenting proceedings between the parents in this matter were commenced in the Federal Circuit Court. Allegations were made by the mother that the father had sexually abused the children (two little girls) and the matter was transferred to this Court and placed in the Magellan list of matters. The Federal Circuit Court Judge made some interim parenting orders that provided for the two children to spend independently supervised time with the father, pending the determination of the matter. Unsurprisingly, the amount of time the children got to spend with the father pursuant to such orders was relatively limited. That was, as is invariably the case, attributable to questions of resourcing and cost as opposed to other considerations.
Further applications for various interim orders were heard by the Principal Registrar in this Court and on 2 December 2013 orders were made on those applications that provided for G, then aged 8, and V, then aged 4 (almost 5), to spend time with their father each Sunday from 1:00 pm until 5:00 pm and on one afternoon each week after school from 3:40 pm until 5:00 pm and on one other day in the 2013-2014 school holidays, such time to be supervised by Ms A (a private, commercial provider of supervision services to parents such as these). The father was ordered to meet the cost of Ms A’s supervision services. The orders also provided that the supervised time the children were to spend with the father could take place at Ms A’s home, the father’s home or at the home of other nominated members of the paternal extended family or at a child friendly public venue.
The mother applied to review the orders of the Principal Registrar. That application was heard and dismissed by Justice Bell on 16 January 2014.
The trial of the contested parenting proceedings took place before Justice Murphy over six days in May and August of 2014. The mother was represented by very experienced Senior and Junior Counsel and the father was represented by very experienced Junior Counsel.
Justice Murphy handed down his judgment and made parenting orders on 23 February 2015. His Honour conferred sole parental responsibility for the two girls on the mother, subject to conferring with the father first before making any decision about major long term issues in respect of the children. His Honour determined that the evidence did not support findings of sexual abuse by the father and that the children were not at an unacceptable risk of sexual abuse in the unsupervised care of the father. His Honour made orders for the children to begin spending time with the father in a way that quickly increased to spending time with him from after school on a Thursday until before school the next day in one week and from after school on a Friday until before school the following Monday in the other week, in addition to during half of the school holidays. His Honour also made an order that obligated each parent to provide authorities necessary for the other parent to receive all information from the children’s school to which parents are ordinarily entitled, about the children’s academic, sporting and social progress and as to events to which parents are entitled to attend or participate.
Justice Murphy had also been asked by the mother to change the supervisors in the event that supervision of the girls’ time with the father was to continue after the trial. Indeed, Ms A gave evidence and was cross-examined at the trial. She was challenged on aspects of her supervision by counsel for the mother. However, his Honour did not make an order for a change of supervisors.
On 23 March 2015, the mother filed a Notice of Appeal against Justice Murphy’s orders. On 13 April 2015, the mother filed an application for a stay of Justice Murphy’s orders pending the determination of her appeal against those orders. On 24 April 2015, Justice Kent granted a stay of Justice Murphy’s orders pending the hearing of the appeal, conditioned upon the mother filing an application for expedition of the hearing of the appeal within 7 days.
On 29 April 2015, the mother filed an application for the hearing of the appeal to be expedited. It was expedited and it was heard by the Full Court on 4 August 2015. The mother sought a retrial by a different trial judge in the event that the appeal is successful. At any such retrial she will again contend for a finding that the father has sexually abused the girls and that they should not spend any time with him.
The judgment of the Full Court remains reserved. I am unaware of any order of the Full Court extending or continuing the stay of Justice Murphy’s orders pending the delivery of its judgment. However, it is clear that the parties have, since the hearing of the appeal, acted as if the stay remains extant. That is, at least in my judgment, regardless of whether the Full Court formally ordered so or not, the appropriate course.
Whilst the Full Court’s judgment remains reserved, the father has filed an Application in a Case seeking orders that the time the children spend (currently still strictly in accordance with the Principal Registrar’s orders of December 2013) with him be increased but remain supervised by Ms A or another supervisor from her T Supervision business that she runs with her daughter.
That Application in a Case came before me in the judicial duty list on Monday 14 March, 2016.
The father appeared without legal representation. The mother was represented by Mr Bunning of Counsel and the Independent Children’s Lawyer, Ms Davies of Legal Aid Queensland, appeared.
The father seeks to have the time the children spend with him, though still supervised, changed from 1:00 pm to 5:00 pm each Sunday to 10:00 am to 4:00 pm each Sunday (an extra 2 hours each Sunday) and to also have from 10:00 am to 4:00 pm every second Saturday. He also seeks to have the mid-week afternoon visit (that is currently from after 3:40 pm to 5:00 pm) set from 3:00 pm to 5:00 on any of those Wednesdays that is not a school day.
Additionally, the father seeks orders that the girls spend time with him on his birthday and each of their birthdays, as well as Christmas Day. He also seeks orders providing for him to be able to communicate with the children by Skype or similar form of communication each Tuesday and Friday at 6:00 pm.
He also seeks a mutual non-denigration order and an order that permits him to be at liberty to attend any extra-curricular activity or school event to which parents of children are ordinarily invited.
I respectfully observe, that it is indeed unfortunate and regrettable that the father has, through apparent frustration with the length of time it is taking the Full Court to deliver its reserved judgment in the appeal, brought this Application in a Case. He submits that the two girls are now “older and wiser” (they are now ten and seven years old) and wanting to spend more time with him. He submits that an increase in the time that they spend with him now is a proper parenting order in all the circumstances as it would accord with the girls’ own wishes and reduce the amount of time that they spend in their mother’s care thus reducing the ability of the mother to “poison” the children’s attitudes towards him. He submits that the need for the change is so pressing that it needs to occur now even though the Full Court remains reserved in its judgment on the appeal against Justice Murphy’s final orders.
In support, he points to his evidence that the girls’ behaviour, particularly the younger child’s, is noticeably poor at handovers and in the moments afterwards but that it improves quickly after the mother leaves the girls in his care. His own evidence about that is seemingly corroborated by Ms A, the supervisor, who wrote a brief report that was attached to an affidavit she provided for the father, that he filed just prior to the hearing before me and relied upon at the hearing. She also gives evidence supporting the father’s position that the girls want to spend more time with him.
The father also refers to his evidence of his observations of the mother’s behaviour at handovers in support of his submissions about her continuing to influence the children negatively against him. However, the mother has denied that she behaves in the way he alleges and Ms A has said nothing in her report about the mother’s behaviour said to have been observed by the father that corroborates the father’s evidence on this point, save for her observations that the youngest child’s behaviour at handovers is noticeably different when her mother hands her over from when the maternal grandmother hands her over – the child being clingy to her mother when handed over but not to her grandmother when she hands her over.
As to his desired change to the interim orders to expressly allow him to attend at the children’s school at events that parents are welcome to attend, the father simply says he chose to start attending some of those events after taking advice from his former solicitors last year and has continued to do so. He told the Court, when I asked him, that he had neither asked the mother for her views on this matter, nor communicated to her, in advance, his determination to start attending at such events. He submitted that he should be expressly allowed to do so, even though the interim parenting orders currently regulating the parenting of these girls makes no reference to the issue.
The Independent Children’s Lawyer supported the father’s application, though to a limited extent. She submitted that the children’s time with him should be increased by giving him from 10:00 am to 4:00 pm every Sunday or from 1:00 pm to 5:00 pm on one additional Saturday each fortnight. She also submitted that the father should be permitted to attend events at the children’s school on the giving of 48 hours’ notice to the school provided he is accompanied by Ms A or one of the supervisors working for T Supervision.
The ICL relied upon some parts of reports that were in evidence in the trial before Justice Murphy from psychiatrist, Dr G, and the social worker who wrote the family report, Mr F. She submitted that the primary consideration of the benefit to the children of having a meaningful relationship with both of their parents was a significant factor to take into account in this case. In this respect, part of what the ICL referred me to, an expression of opinion by Mr F contained in paragraph 95 of his report, provides strong support for the view that the limited supervised time the children are spending with the father is not conducive to the development of a relationship of substance between the girls and their father over the long-term.
As I understood her submissions, the ICL relied on the fact that Justice Murphy had heard and decided the case and determined that the children were not at an unacceptable risk of harm in the father’s care and coupled that with reference to Mr F’s recommendation that in circumstances where such a factual finding was made the children should move relatively quickly to a regime of unsupervised, regular overnight contact with the father, to support the proposition that it is in the best interests of the children to start spending more time with the father now, albeit still supervised, pending finalisation of the current proceedings.
In response, counsel for the mother submitted that whilst Justice Murphy’s parenting orders remain stayed, pending delivery of the judgment of the Full Court, there should be no change to the existing interim parenting arrangements for the children. Counsel for the mother submitted that for the Court to look afresh at the interim orders, albeit made December 2013, the applicant seeking change to those orders must show that there has been a material change of circumstances since the existing orders were made that would warrant a change in those orders. Counsel referred to the Full Court decision of Rice & Asplund (1979) FLC 90-725 in support of that submission.
Counsel for the mother positively submitted that there had been no change in circumstance since December 2013 and that the father’s evidence failed to disclose any such change. Counsel went on to submit that if the Court did not accept this submission, that the father’s evidence did nothing but confirm that the two girls have a good and meaningful relationship with him already, albeit necessarily constrained within the bounds of limited, supervised time, and, given that, the Court could not be satisfied that an increase in the supervised time the girls spend with him is mandated at this stage in the process to ensure that they have a meaningful relationship with their father.

The applicability of the principle from Rice & Asplund

There is, in my view at least, no doubt that the Court has the discretion, on a preliminary inquiry, to dismiss parenting proceedings, subsequent to others having previously been finally determined, if it determines that proceeding to another hearing would itself “be demonstrably contrary to the best interests” of the subject child or children (see Rice & Asplund (1979) FLC 90-725; SPS & PLS (2008) FLC 93-363; Miller & Harrington (2008) FLC 93-383; Marsden v Winch (2009) 42 Fam LR and Reid & Lynch (2010) FLC 93-448).
In their joint reasons for judgment in Marsden v Winch, Bryant CJ, Finn and Cronin at [50], said the decision whether to dismiss parenting proceedings where there is an existing final parenting order in place or to embark on another hearing is “a decision to be made in each particular case” and is to be made by looking at:
(i)The past circumstances, including the reasons for the decision and the evidence upon which it was based;
(ii)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing; and
(iii)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
Their Honours did not expressly refer to any need to find changed circumstances before one embarks on the hearing and determining of fresh parenting orders. However, as I have said previously[1], I accept that the requirement to consider the past circumstances, as well as the question of whether there is a likelihood of orders being varied in a significant way as a result of a new hearing, clearly includes the need, authoritatively established before the Marsden v Winch decision and reaffirmed in Reid & Lynch[2], to be satisfied that there is some changed circumstance or some new factor arising or some factor which was not disclosed at the previous hearing that would, likely, support a variation of those orders in a way that would benefit the children more than any disruption caused by re-litigation, before allowing parenting proceedings to continue.
[1] Bondai & Bretton [2012] FamCA 429 at [22].
[2] Per O’Ryan J at [238], with whom Finn and Strickland JJ agreed.
However, with respect to counsel for the mother, I am not convinced that the circumstances that present in this immediate case, readily facilitate application of what is called the “Rice & Asplund” principle simply because it has not been shown that “there has been a material change of circumstances since the Orders were made on 2 December 2013”.[3]
[3] Paragraph 15 of the written submissions of counsel for the mother.
Firstly, the extant December 2013 orders were not orders finally determining parenting proceedings between the parties. Secondly, as I did at the hearing, one could readily point to changed circumstances in this case. They include:
·The matter went to trial over 6 days with each of the parties being represented by very experienced counsel with a very lengthy and detailed judgment being delivered by the trial judge which included determination that the evidence did not support findings that the father had perpetrated sexual abuse on the girls or that he represented an unacceptable risk of harm to them if they spent time in his unsupervised care;
·The girls are now more than two years older;
·There is evidence, independently given, that the girls both express the desire for more time, including sleepovers, with their father.
So, if the identification of changed circumstances is all that is necessary to justify making variations to extant interim parenting orders then, at least in my view, changed circumstances exist in this case.
However, I am satisfied that the line of authority just referred to, including Rice & Asplund, merely confirmed that at every stage of the process, when a “parenting order” is sought from the Court, the determination of what order, if any, is proper to make is a matter for the Court having regard to the best interests of the child or children being the paramount consideration. The identification and consideration of changed circumstances from those that existed at a time when extant previous parenting orders were made is but one of the matters for consideration, along with all of the other matters set out in s 60CC[4], including anything that the Court considers is relevant to the determination.
[4] Family Law Act 1975 (Cth).

My Determination

The final parenting orders of Justice Murphy, made around recognition that minimising the amount of change in the children’s lives was in their best interests,[5] provided for a brief continuation of supervised time with the father, albeit from 10:00 am until 4:00 pm each Sunday, until his Honour’s orders had been explained to the children by the ICL. That in itself was a slight increase in time from that provided for in the Principal Registrar’s December 2013 orders.
[5] See [389].
Before there had been a progression to any unsupervised time or further time, Justice Kent granted the stay of Justice Murphy’s orders. In doing so, his Honour expressly stated the view that “stability of circumstances assumes some importance” given:
·Justice Murphy’s position that minimising the amount of change was in the best interests of the children;
·The nature of the allegations involved in the case; and
·The prospects of the appeal being heard on an expedited basis, three months from the hearing of the stay application.

His Honour carefully conditioned the stay on the immediate filing by the mother of an application for an expedited hearing of the appeal and went on to observe that the order for the stay might need to be revisited if expedition was not granted or that there might need to be some further application about interim arrangements short of revisiting the stay.
The mother complied with her obligation to immediately seek that expedition. She was successful and the appeal was quickly heard.
Frustration, having regard to the judgment he obtained from the trial judge, the stay put in place and the length of time the Full Court’s judgment has been reserved, has principally, in my view, caused the father to bring this application for a variation of the existing interim orders as he has. Whilst that is perfectly understandable, as was identified by Kent J[6], any change in the parenting arrangements made now might have to be revisited if the appeal enjoys any success.
[6] Paragraph [27].
There was no evidence adduced before me as to the likelihood of the appeal being successful or otherwise. Understandably, that could probably only be a matter of personal conjecture and speculation in any event. Relevantly though, the Full Court’s judgment could be handed down at any time. Dismissal of the appeal and immediate reversion to the final orders made by Justice Murphy is a possible outcome. On the other hand, the appeal could be allowed and the matter remitted to another Judge for retrial, where the issues as to sexual abuse are all open to determination again, with a possible outcome being that the girls do not spend any time with the father.
With the utmost respect to the father and to the ICL, whilst increasing the girls time with their father right now might be in their best interests in the event the appeal is subsequently dismissed, where a possible outcome of the appeal is that the appeal is allowed and the matter remitted for trial, increasing the girls’ time with their father now, only to have it subsequently reduced or taken away completely, is, in my judgment, hardly in their best interests.
The father told the Court that he had been patient and respectful to date. That is indeed commendable. It is hoped that continued focus on the best interests of the girls and a patient appreciation of the workload that this Court and the Full Court are dealing with will assist the father to await the outcome of the appeal. As I informed the father during the hearing of this application, he is entitled to write to the President of the Queensland Law Society to have him raise the matter of the reserved judgment in an anonymous way with the Full Court with a view to expediting the delivery of judgment. Of course, the mother and the ICL could join him in such an approach, if they saw fit.

As to the issue of the father’s attendance at the girls’ school

Whatever Justice Murphy’s final parenting orders can be interpreted as providing for in respect of the father attending at the girls’ school at events and activities that parents of children at that school are otherwise welcome to attend, his Honour’s orders are stayed. The Principal Registrar’s December 2013 orders said nothing about the subject and they only provided for limited, independently supervised time between the children and the father.
With respect to the father and those who might have advised him, I do not consider that anything in the Principal Registrar’s orders can be interpreted as entitling the father to attend the children’s school to spend time with or around the children at school events or associated, extra-curricular activities. Similarly, the balance of the orders of the Federal Circuit Court Judge made 21 December 2012, left untouched by the Principal Registrar’s orders, provide no entitlement to the father to attend these events.
As I understood was submitted by counsel for the mother, I accept that without express conferral of an entitlement or right to attend at a school based event or associated, extra-curricular activity, contained within a parenting order or parenting plan, that the right of a parent to attend such events or activities at which a subject child is present is confined to the temporal limits of any order expressly providing for the child or children to live with or spend time with that parent.
If a parent has the benefit of an order that a child spends time with him or her from Thursday after school until Monday before school, each second weekend, then without an express conferral of a right to attend school events at which the child is present which parents are welcomed by the school to attend outside of that time, then the parent is, in my judgment, limited to only attending such events at which the child is present from Thursday after school until Monday before school.
In this case, whilst the orders of Justice Murphy remain stayed, I am of the view that the father’s right to attend at school events and associated extra-curricular activities at which one or both of the children are present is limited to his supervised time each Sunday afternoon and one afternoon during the week. It follows that I am of the view that if the mother’s appeal is dismissed and Justice Murphy’s orders become extant again, that the father’s rights to attend such events and activities are similarly confined to the period within which the orders provide for the children to spend time with him.
At the hearing, I was taken to paragraph 15(b) of his Honour’s orders. That provides:
Each party shall do all such things and sign all such documents so as to authorize the other parent to:
…
b. Receive all information from the children’s school or pre-school to which parents are ordinarily entitled as to events to which parents are entitled to attend or participate;
…
The ICL took me to that as being all that Murphy J had said about the matter in his orders. Upon reflection, I do not consider that order alone provides sufficient authority, entitlement or right for the father to attend any such events at which the children (or one of them) are present at any time, whether or not the children are spending time with him otherwise pursuant to a parenting order. I am of the view that for him to do so, he must either have the consent of the mother who has the care of the children outside of the time that they spend with the father pursuant to order, or express authority through a parenting order.
Counsel for the mother, the ICL and the father all agreed with the proposition that any “confusion” the children might be said to be experiencing around the father’s attendance at school events and activities is easily remedied by the matter being made clear by the Court and the parents each knowing where the matter stands so that the children can be readily informed by each of them as to what the position is.
For the same reasons I gave for declining to make a parenting order that increases the children’s time with the children right at this point in the process, I similarly decline to make any order that expressly confers a right or entitlement on the father to attend school events or activities and extra-curricular events at which the children are present outside of the time that the children spend with him pursuant to the extant order of the Principal Registrar. That means, having regard to my view of the issue, that the father should not attend any such events or activities at which the children are present outside of the four hours of supervised time he has on Sunday afternoons and the other period after school during the week. Having stated that view, I do not consider it necessary to make an order restraining him from so attending, as I expect he will continue to show the patience and respect that has stood him so well until now.
Of course, having regard to my views about this matter, should the mother’s appeal be unsuccessful and the final orders of Justice Murphy become the extant orders governing parenting of these children, the times and circumstances within which the father can attend school events and activities at which one or both children are present will change. However, if the father wants the right to attend events at which one or both children are present outside of the time the children spend with him pursuant to such order, at least in my view, he will need to seek the consent of the mother or a further order of a court exercising family law jurisdiction.
For all of these reasons, I dismiss the father’s Application in a Case filed 2 December 2015.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 16 March 2016.

Associate:

Date: 16 March 2016