WILFRED & PRENTICE

[2020] FamCA 131

FAMILY COURT OF AUSTRALIA

WILFRED & PRENTICE [2020] FamCA 131

FAMILY LAW – CHILDREN – Where final parenting orders were made in May 2017 following a three day trial – Where the mother seeks a variation of those orders to remove the requirement that her time with the child be supervised and also to change parental responsibility from the father solely, to the parents jointly – Consideration of the principles in Rice & Asplund (1979) FLC 90-725 – Where there has not been a significant change in circumstances to warrant a reconsideration of the current order – Where the 2017 parenting order will be varied to change the provider of the supervision for the mother’s time with the child – Where the application will otherwise be dismissed.

Family Law Act 1975 (Cth), s 65D(2), s 69ZQ(1)(a)

Bennett & Bennett (1991) FLC 92-191
Carriel & Lendrum (2015) FLC 93-640
Doherty & Doherty [2016] FamCAFC 182
Poisat & Poisat(2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Ms Wilfred

RESPONDENT: Mr Prentice

FILE NUMBER: BRC 9611 of 2018

DATE DELIVERED: 4 March 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 28 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Downes

SOLICITOR FOR THE APPLICANT: Twohill Lawyers

COUNSEL FOR THE RESPONDENT: Mr Foley

SOLICITOR FOR THE RESPONDENT: Kenny & Partners Lawyers

It is ordered that:

1. The Initiating Application filed by the mother on 23 August 2018 as amended be dismissed.

2. The Order made by this Honourable Court on 11 May 2017 be varied by discharging paragraph (5) of that Order and replacing it with the following:

   (5) The child shall spend time and communicate with the mother at all times as may be agreed between the parties, in writing, and failing agreement on one occasion every three weeks on a Saturday and Sunday under the supervision of a person engaged by the organisation “[EE Group]” or such other supervision organisation/person as agreed between the parties, in writing, for the maximum period available by the organisation/person. 

3. The interim Order made on 7 February 2019 be discharged.

4. The matter be removed from the list of cases awaiting trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilfred & Prentice has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 9611 of 2018

Ms Wilfred

Applicant

And

Mr Prentice

Respondent

REASONS FOR JUDGMENT

1. Ms Wilfred and Mr Prentice have one child together, B, aged six years. The parents are in dispute about whether or not a parenting order made by this Honourable Court on 11 May 2017 (“the 2017 order”) should be varied so as to remove the requirement that the mother’s time with the child be supervised and also to change parental responsibility from the father solely, to the parents jointly.

2. It is accepted by the parties that the principles enunciated by the Full Court of the Family Court of Australia in Rice & Asplund[1] apply and the matter was listed for a discrete hearing to consider the application of those principles as a preliminary issue.

   [1] (1979) FLC 90-725.

Brief Background

1. After a brief relationship between the parents the child was born in 2013. The child lived with the mother until 11 May 2017. Since then, the child has lived with the father and his wife, Ms F, and spends supervised time with the mother.

2. Since the 2017 order, the mother and the child have enjoyed regular face to face time (apart for a period of some months in mid-2018 when the contact centre withdrew its services) and the mother communicates with the child twice weekly via FaceTime. The parents have been able to agree from time to time on extensions and variations to the time the mother spends with the child.

3. The mother commenced the current proceedings on 28 August 2018.

4. The circumstances said by the mother to warrant variation of the 2017 order at that time were that the contact centre providing supervision withdrew its services. That issue has already been resolved by agreement and, whatever the outcome of the mother’s application, it is agreed that the 2017 order should at least reflect this variation.

5. On 25 January 2019, the mother filed a further affidavit in support of her application identifying further circumstances said to warrant variation of the 2017 order, namely, her relocation closer to the child[2] and that she no longer believes that the father harmed the child.

   [2] The mother now lives 123 kilometres from the child.

6. On 24 February 2020, the mother filed a third affidavit identifying further circumstances, namely, that she has had ongoing medical and psychological support, has not relapsed into alcohol or drug misuse, and there was ongoing co-operation between the parents.

7. It is common ground that the child is doing very well in the care of the father and enjoys the time she spends with the mother, which occurs at places such as the beach, cinema, gardens, aquatic centre and other child friendly venues.

8. In February 2019, an interim order was made by consent which extended the time the mother was to spend with the child to include alternate Wednesday afternoons with the father supervising. The father is not prepared to continue that commitment long term.

9. Before turning to consider the submissions of each party I set out the relevant legal principles. 

The ‘rule’ in Rice & Asplund

1. The Full Court in Rice & Asplund[3] (per Evatt CJ) held:

   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 (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

   [3] Supra at [7].

2. This is what is referred to as the ‘rule’ in Rice & Asplund. Whether or not the principles identified in Rice & Asplund are more properly called a ‘guiding principle’ rather than a ‘binding rule’, it is apparent that the principles have been universally applied for decades.[4]

   [4] Poisat & Poisat(2014) FLC 93-597 at [8].

3. The existence of a ‘final’ parenting order does not prevent the court discharging, varying, suspending, or reviving some or all of a parenting order in an appropriate case.[5]

   [5] Ibid at [37], [38] and s 65D(2) of the Family Law Act 1975 (Cth) therein referred.

4. Whether the ‘rule’ in Rice&Asplund is applied at a preliminary stage or after a full hearing, the best interests of the child remains paramount,[6] although “the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case”.[7] While the court is not relieved of its obligation to consider the legislative provisions set out in Part VII of the Act, so far as relevant,[8] “the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings”.[9]

   [6] Ibid at [42].

   [7] Ibid.

   [8] Ibid at [32] and [34].

   [9]Carriel & Lendrum (2015) FLC 93-640 at [55].

5. The stage of the proceedings at which the rule is applied is a matter within the discretion of the presiding judicial officer,[10] although its significance is likely to be greater when applied at a preliminary stage.[11]

   [10] Bennett & Bennett (1991) FLC 92-191 at [63].

   [11] SPS & PLS (2008) FLC 93-363 at [48].

6. The significance of the variation sought will have an impact on the application of the rule. As Warnick J held in SPS & PLS:[12]

   The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   [12] Ibid.

7. That said, any variation of a parenting order pursuant to s 65D(2) of the Act will necessarily invoke the paramountcy of the best interests of the child and the consideration of such provisions in s 60CC as are relevant to the determination.[13]

   [13]Doherty & Doherty [2016] FamCAFC 182 per Kent J at [64] and [65].

8. Even when the rule is applied after a full hearing, two particular public policy matters remain of some significance: firstly, to guard against one judicial officer simply substituting her or his view for that of the original judge; and secondly, to have a rule that can be relied upon to discourage endless litigation even if applied in that particular case at the conclusion of the full hearing.[14]

   [14] SPS & PLS supra at [56] – [58].

9. Irrespective of the application of the Rice & Asplund principles, the court has power to limit the issues that require investigation at trial as set out in s 69ZQ(1)(a) which provides:

   (1)  In giving effect to the principles in section 69ZN, the court must:

   …

   (a)  decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily;

   …

The mother’s case

1. The mother relies upon the following circumstances to support a submission that there has been a significant change in circumstances:

   a)The nature and extent of the co-parenting relationship between the parties;

   b)The lack of any issue around the mother’s alcohol and/or substance misuse;

   c)The time that has passed with the child only spending supervised time with the mother with no mechanism for review;

   d)The lack of any evidence that the mother remains a risk to the child of emotional or psychological harm:

   i)The evidence from the mother’s treating psychologist is that she has worked to address the underlying issues that gave rise to the allegations, and has improved her own mental health outlook and skill set in dealing with any difficult issues raised by the child;

   ii)The mother’s move closer to the child’s residence with the father would open opportunities for this court to consider making orders for substantial and significant time for the child and mother in a way that is child focussed given the amount of time that has occurred in a supervised setting;

   e)There has been a significant change in the mother’s understanding of her behaviour and a change in her attitude towards the father and his role in the child’s life; and

   f)Orders for indefinite supervision are generally not in a child’s best interests.

the father’s case

1. The father resists any variation to the 2017 order, other than changing the provider of the supervision for the time spent by the mother with the child.

2. The court was directed to particular findings made at trial including the following:

   175.Even after hearing the evidence of [Dr K], whose evidence I accept, the mother maintained her allegation that the father had inserted his fingers into the child’s vagina and sought a finding to that effect.

   …

   178.I find the mother’s position troubling because it indicates a completely closed mind in circumstances where, if she were genuine, I would expect her to entertain at least a level of doubt. However, her trial position is consistent with what she told [Ms I] that irrespective of any findings made by the Court she and her family “know that it happened”.

   …

   184.During many of the recordings [B] appears to ‘perform’ for the camera. In my view she does and says what has become expected of her both on camera and to other persons. …

   185.I find it more likely than not that the recordings were staged events intended to capture a statement from [B] which the mother could use as evidence. …

   186.I also find the mother’s involvement of various therapists is more likely to have been motivated by an attempt to obtain corroboration for her allegations. …

   187.The mother and her family hide behind the fiction that the allegations against the father are made by [B] when the allegations are in fact made by the adults. [B] has been an unfortunate pawn in an attempt to obliterate the father from [B’s] life and their lives. I do not accept the genuineness of the mother’s purported change of heart in relation to ongoing supervised time. The father alleges that on one occasion when the mother was drunk she said to him that he would never see [B]; that she knew how the law works; and she would stop him having [B]. He was not challenged in relation to this evidence and I accept it and find that she has acted on those threats.

   188.In coming to the conclusion that the mother has orchestrated the sexual abuse allegations I have also taken into account what I find to be the mother’s false allegation of rape against the father.

   …

   190.I also reject the mother’s explanation that she did not tell the previous report writer (in earlier proceedings) about the rape because she was embarrassed. She told the report writer other things that I expect would have caused her embarrassment e.g. that she worked as a topless waitress and had had a termination at thirteen.

   …

   193.For the reasons stated I find that the father did not insert his fingers into the child’s vagina and I find that there is not an unacceptable risk of [B] being sexually abused by the father. I find that the mother orchestrated the allegations of sexual abuse against the father.

   …

   200.If [B] remains with her mother I consider it only a matter of time before [B] will cease spending even supervised time with the father. I do not accept that the mother’s change of heart on the first day of trial in seeking the continuation of supervised time is genuine. The capacity of the mother to make allegations against the father and the maintenance of her position even after the conclusion of all of the evidence causes me to form the view that if [B] remains with her mother she will be denied her right to have a relationship with the father.

   …

   206.Given my findings I come to the conclusion that the parents are unlikely to be able to jointly make parenting decisions but I accept that the father is likely to attempt to include the mother in decisions. As the child will be living with the father he should have sole parental responsibility for decisions affecting [B].

3. The father submits that the mother’s concessions and those of her psychologist, Ms DD, during cross-examination demonstrate that in truth, there has been no change sufficient to warrant the variation to the 2017 order sought by the mother.

4. Far from the mother addressing the very serious findings made against her at the 2017 trial, the mother retained her psychologist in October 2017 for the purpose of obtaining a report for court to “change custody”. Throughout her consultations with Ms DD, the predominant focus was on these court proceedings, not on the mother’s conduct that resulted in the child’s removal from her care.

5. For example, Ms DD’s notes for 7 February 2018 listed the matters she was tasked to do to assist the mother in going back to court including “putting together a list of mistakes and incongruences from the last trial – many of them” and “[t]o collect evidence/affidavits rebutting accusations”. The notes for 14 March 2018 include instructions for the mother to “document” the father’s alleged inflexibility and the mother’s lawyer’s instruction (as reported by the mother to Ms DD) to “withdraw allegation [B] (sic) sexually abused” and to “have a therapist/psychologist” in order to change the orders. On 10 September 2019 there appears to be an instruction in these terms - “Lawyer wants me to help [Ms Wilfred] change attitude to [Mr Prentice]? Situation? This is in r/ship (sic) to [Mr Prentice] sexual behaviours as reported by [B].” The notes for 19 February 2020 refer to discussion about the court case and Ms DD role as “expert witness”.

6. The father submits that, as predicted at trial, the mother does not accept many of the findings made, in particular those relating to the mother’s conduct. This was not a case of misguided or mistaken belief. The mother “orchestrated the allegations of sexual abuse” against the father by involving the child and “staging” the videoed so-called disclosures by the child. Not only does the mother not accept the findings, she now seeks to blame her former lawyers and the Department of Child Safety for allegedly “coercing” her into making the allegations against the father.

7. The mother has been assisted in her false rationalisation, i.e. that she was misguided in her belief that the father sexually abused the child, by her psychologist who was not even provided with a copy of the reasons for judgment until a number of months after the mother first retained her services. Ms DD did not see it as her role to challenge the mother’s views. She simply accepted at face value the mother’s claims to have been mistaken about the allegations she made against the father in 2017, and accepted that the mother did not engage in the conduct found against her at trial.

8. The father submits that there are disturbing references in the psychologist’s notes (see above) which suggest the mother has engaged in a calculated attempt to mislead the court about the extent of change that has occurred.

9. The psychologist was provided with recorded interactions between the mother and the child which are not referred to in her reports or her clinical notes and yet form the basis of her opinion that the mother is a loving and caring parent.

10. Ultimately, Ms DD made a number of concessions and resiled from a number of opinions expressed by her e.g. if it is the case that the mother staged the video recorded events with her daughter prior to the trial in 2017, she would have reason to be concerned about the mother’s parenting capacity.    

Discussion

1. This is not a case where a reversal of the child’s living circumstances is sought however, the change proposed by the mother is nevertheless significant. If successful, the variation would see the mother spending significant and substantial time with the child and being involved in making joint parenting decisions about major long term issues with the father.

2. In my reasons for judgment dated 11 May 2017, I found that the mother had orchestrated the allegations of sexual abuse against the father by involving the child in staged and coached events which purported to capture the child on video making ‘spontaneous disclosures’ of abuse. There were 14 such videos produced by the mother during the trial. As noted in my reasons for judgment, the child was used as an “unfortunate pawn in an attempt to obliterate the father from B’s life”.

3. It is submitted by the mother that she has “worked to address the underlying issues that gave rise to the allegations” and that there has been

   
   

   “a significant change in the mother’s understanding of her behaviour”. I am unable to accept those submissions. There is in fact nothing in the mother’s evidence that persuades me she has addressed anything relating to her own behaviour.

1. The mother first engaged with Ms DD on 31 October 2017, not for the purpose of addressing or understanding her behaviour and how damaging it had been for the child, but to commandeer a suitable ‘expert’ to overturn the 2017 order. The initial assessment by Ms DD refers to the mother’s representation that “she did not do anything wrong but was punished by the court system”. The predominant focus throughout the mother’s 17 sessions with Ms DD between 31 October 2017 and 19 February 2020 has been on court proceedings and addressing what the mother told Ms DD was required if she was to be successful in changing the 2017 order.

2. Far from “addressing the underlying issues” and “understanding her behaviour” the mother blamed her former lawyers and the Department of Child Safety for allegedly coercing her into making the allegations.

3. It is true that the mother now says she accepts the father did not harm the child, but what faith can I place on such a statement when the mother does not in any way accept responsibility for her past conduct. I am no more impressed with the mother’s purported change of heart now than I was in 2017 when on the first day of the proceedings the mother said she supported ongoing supervised time between the father and child.

4. The mother submits that she can be trusted to spend unsupervised time with the child because she loves the child and would not harm her, but loving the child did not stop her behaviour in the years prior to the 2017 order being made.

5. The mother’s failure to address the findings arising out of the last court case and, in particular, to address in any way her damaging conduct involving the child, leaves me with no confidence that if supervision were removed the mother would not revert to her focus on finding a reason to interfere with the child’s relationship with the father. In this context, it concerns me that Ms DD formed the opinion that the mother “continues to be highly protective of her daughter”.

6. The mother has been disingenuous in her attempt to persuade the court that there has been a change in circumstances sufficient to warrant the removal of supervision. The mother’s attendance at the psychologist predominantly focussed on gathering evidence, not addressing her behaviour.

7. The flexibility and accommodation by the father of the mother’s requests relating to her time with the child may have given some cause for optimism that the parents may be able to work towards removal of supervision. Unfortunately, the mother’s attempt to manipulate the system during these court proceedings is likely to have set back the prospect of supervision being removed in the foreseeable future. The mother has a long way to go. I suggest that she start by seeing another psychologist and immediately provide that person with a copy of the 2017 reasons for judgment and these reasons. The mother needs to address her conduct that resulted in the removal of the child from her care and needs to accept responsibility for her own actions. Until she does that, and I expect such a process to take years rather than months, there is little prospect of the current order being varied.

8. Despite the setback arising from the current proceedings, I would urge the father to continue with the flexible attitude he has adopted over the last 18 months because to do so will be beneficial for the child in the long run. Despite the prospect of supervised time continuing long term I nevertheless consider it is in the child’s best interests for that to occur so that the child can maintain her relationship with the mother. The mother conceded that the existing order is working well and the flexibility as to venue creates a more natural setting.

9. While no submission was made by the mother as to the form of the variation proposed by the father, I note that the 2017 order envisaged that the mother would spend time with the child for the maximum time available at the then specified contact centre. The minute of order proposed by the father refers to that period being two hours (which is no doubt the maximum time provided by the original contact centre). However, I do not see any reason to necessarily limit the time to two hours given that there is now a new supervising service who may be able to provide a longer period of supervision on the days specified.

10. Although the parents were able to reach an interim agreement to increase the time the mother spends with the child, I do not propose to further vary the 2017 order in circumstances where the father no longer agrees to supervise time each alternate Wednesday.

11. Nothing in the mother’s evidence persuades me that parental responsibility should be shared equally. It is true that the parents have been able to reach agreement on changes relating to the time the mother spends with the child but such accommodation, while heartening, does not support a change to parental responsibility. As anticipated in 2017, the father has sought to involve the mother in major long term issues affecting the child and I expect that will continue. The child is progressing very well at the moment and has a strong and loving relationship with both her parents. A change that would require decisions about major long term issues to be made jointly would only increase the prospect of further court proceedings, which would not be in the child’s best interests.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 4 March 2020.

Associate: 

Date:  4.03.2020