No Significant Change in Circumstances to vary Orders for Dad to see children twice a year

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Father subjected Mother to long term verbal & physical domestic violence. Father has alcohol problem (including 3 high range drink driving convictions) & used drugs.

Court previously made final orders:

  • Giving Mother Sole Parental Responsibility for 14 year & 10 year old children;
  • Giving Father supervised time at Contact centre for 2 hours each fortnight for 1 year;
  • Requiring Father within that 1 year to complete a 3 month residential rehabilitation probram & complete Relationships Australia programs and if Father did not do so then he is to only see the children once every 6 months.

Father did not appeal the final orders.  10 months after final orders made, brought application seeking to change those orders.  Father refused to attend rehabilitation program and said, without sufficient evidence he no longer consumed alcohol.

After final orders made, father continued to Breach Domestic Violence Order.  

Court determined as a threshold issue that there had been no change in circumstances as required by the Rule in Rice & Asplund and so the Father was not entitled to seek to change the previously made Parenting Orders.  Insufficient merit for Application to proceed. 


NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  

Biggs & Hurst (Application pursuant to Rice & Asplund) [2014] FamCA 217 (4 April 2014)

Last Updated: 10 July 2014

FAMILY COURT OF AUSTRALIA

BIGGS & HURST (APPLICATION PURSUANT TO RICE & ASPLUND)

FAMILY LAW – CHILDREN – Interim application – consideration of the rule in Rice & Asplund – Final Orders made in July 2012 following a four day trial – consideration of whether there has been a change in circumstances justifying further litigation – no material change within the meaning of the principals – application dismissed

Family Law Act 1975 (Cth) s 65L

In the Marriage of Rice and Asplund(1979) FLC 90-725
SPS and PLS[2008] FamCAFC 16(2008) FLC 93-363

Miller and Harrington (2008) FLC-93-383

APPLICANT:
Mr Biggs
RESPONDENT:
Ms Hurst
FILE NUMBER:
CSC
373
of
2009
DATE DELIVERED:
4 April 2014
PLACE DELIVERED:
Hobart
PLACE HEARD:
Cairns
JUDGMENT OF:
Benjamin J
HEARING DATE:
12 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:
Ms Mendelsohn
SOLICITOR FOR THE APPLICANT:
Barbara Mendelsohn & Associates
COUNSEL FOR THE RESPONDENT:
In person
SOLICITOR FOR THE RESPONDENT:

ORDERS

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  1. The application filed by the father on 10 May 2013 be dismissed.
  2. All extant applications be otherwise dismissed and removed from the list of cases requiring determination.
  3. All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same. In particular Exhibits M1 – M4 and documents marked MFI1 and MFI2 are to be returned to the mother.

IT IS CERTIFIED

  1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Biggs & Hurst (Application pursuant to Rice & Asplund) 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 HOBART

FILE NUMBER: CSC 373 of 2009

Mr Biggs

Applicant

And

Ms Hurst

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

  1. There is a substantive application by the father, Mr Biggs (“the father”) to further re-agitate parenting orders in respect of the parties children, B and T (“the children”) aged 14 and 10 respectively. The respondent mother, Ms Hurst, (“the mother”) has sought the dismissal of that application pursuant to the rule in Rice & Asplund.[1]
  2. The parents commenced cohabitation in August 1990 and subsequently separated in late 2008 or early 2009. Soon after that time parenting proceedings were commenced in the Family Court.
  3. Those proceedings were heard by Watts J over four days in early March 2012 and final orders were made on 6 July 2012. Those orders provided that the mother have sole parental responsibility for the children and that they live with her.
  4. Watts J made orders enabling the father to spend time with the children conditional upon a number of factors, these were:-[2]

4.1 For a period of 12 months of supervised time at [C] Contact Centre for a period of two hours in each alternate week, on a Saturday or Sunday, subject to the availability of the Centre.

4.2 Within 12 months of the date of these orders, the father enrol, attend, and successfully complete a three month residential rehabilitation program at Ozcare at Cairns;

4.3 Within 12 months of the date of these orders, the father enrol, attend, and successfully complete the Parenting Orders Program and Focus on Kids Program offered by Relationships Australia Queensland;

4.4 Upon the father satisfying the requirements of orders 4.2 and 4.3 above, the father shall provide notice in writing to the mother:

4.4.1 Confirming that the father has satisfied the requirements of orders 4.2 and 4.3 above;

4.4.2 Providing documentary proof from both Ozcare and Relationships Australia Queensland that the father has attended and successfully completed the relevant programs.

4.5 In the event that the father fails to comply with order 4.2 and 4.3 within a period of 12 months, the father shall thereafter see the children for two hours at [C] Contact Centre once every six months.

  1. The order of significant contention between the parties was order 4.2 that required the father enrol and attend and successfully complete a three month residential rehabilitation program at Ozcare at Cairns. Watts J explained why he adopted this course in his reasons which are set out further in these reasons.
  2. By an initiating application filed 10 May 2013 (being filed slightly more than one year after the evidence and submissions were completed and about ten months after the orders were made) the father sought orders including:-

(a) the discharge of those orders made by Watts J,

(b) equal shared parental responsibility,

(c) orders that the children live with the mother; and

(d) that the children spend significant and substantial time with the father, together with other consequential orders.

  1. The mother sought to have the father’s application dismissed having regard to the principles set out in Rice & Asplund.[3]
  2. The mother’s application was listed before me on 12 March 2014.
  3. At the commencement of that hearing the father amended his substantive application to seek a limited variation of the orders made by Watts J, that being:-

(a) that the requirement that the father attend the three month residential rehabilitation program be discharged;

(b) the consequence being that the time he spent with the children would change from twice per year to each alternate Saturday (excluding school holidays) from 8.30am until 4.30pm.

  1. Given the comments made by Watts J above, the father’s application could not be said to be surprising. The father said that such order was in place and having regard to the age and maturity of B, her attendance would be a matter for decision by her.
  2. It was clear that the father would expect the telephone time to commence in accordance with the orders made by Watts J.
  3. The father relied upon his initiating application filed 10 May 2013, his affidavit filed 10 May 2013, his affidavit filed 25 June 2013 and his affidavit filed 27 September 2013.
  4. The mother relied upon her response filed 12 August 2013, her affidavit filed 12 August 2013 and her further affidavit filed 16 October 2013.
  5. The father sought to rely upon an affidavit of Ms Z filed 20 June 2013. Ms Z is a psychologist who, amongst other things, prepares family reports under the Family Law Regulations. She has been in private practice since 2006. Ms Z’s curriculum vitae shows that she has limited qualifications in relation to issues of alcohol, having worked with a government agency in that area from August 2004 until February 2005. She was instructed by the solicitor for the father to prepare a report as to the father’s alcohol dependency.
  6. Notwithstanding the Family Law Rules, in particular Rule 15.51(1) the father did not apply for the Court’s permission to tender the report or adduce evidence from that witness, given that this was to be tendered as an adversarial report. There are serious doubts as to the expertise of Ms Z, in the particular area, and any conclusions relied upon by Ms Z were based solely upon the father’s assertion that he was sober. Much of the report dealt with parenting aspects and parenting of the children. This was, at the very least, troubling, as Ms Z had neither seen nor met the mother nor had she seen nor met the children.
  7. Accordingly, permission was declined to enable the father to rely on that material and he relied upon the material which he had otherwise filed.
  8. Tendered in evidence by the mother, with the consent of counsel for the father, were Exhibits M1 and M2 which were photographs of text messages by the father to the mother on Christmas Day 2013. There were further photographs of four text messages to B between November and December 2013.
  9. Also tendered in evidence was a variation to a domestic violence order[4] which provided:-

… [The father] is prohibited from having or attempting to have ANY contact (including by means of communication) either directly or indirectly with the [mother] Except for the purpose of having contact with a child or children as set out in a written agreement between the parties or as it permitted by an order under the Family Law Act and Except where attending any court or tribunal, counselling, arbitration or mediation required by that court or tribunal or when attending legal aid conferencing or other mediation.

  1. At the time the text messages contained in Exhibits M1 and M2 were sent, the father was not permitted such contact with the mother directly or indirectly.
  2. Since the conclusion of evidence and submissions in early March 2012 there have been further episodes of family violence. There was interaction between the father and mother in early 2012, the consequence of which was that the father was incarcerated until 31 July 2012.
  3. Subsequent to that time the father sent text messages to the children and/or the mother in breach of the then domestic violence order. The father described those messages as:-[5]

At times I may have been overenthusiastic with the text messages to the children. …

  1. The mother described that text as having a far more sinister meaning.[6]
  2. It is not in issue that as a result of those events the father was charged with breach of a domestic violence order and contravention of a domestic violence order and entered a plea of guilty to that, or those matters, on 13 November 2012.[7] The father was sentenced to three months imprisonment, wholly suspended provided he enters into a bond to be of good behaviour for a period of twelve months. The domestic violence order was extended until 2 January 2014.
  3. There is no evidence of a further extension of that domestic violence order or any further Family Violence Orders.
  4. There was a further breach of the domestic violence order in November 2012. As a consequence the father was convicted of the offence proved in the Magistrates Court in 2013 and the father received a fine.[8] The father was not frank in his affidavit in relation to that event.
  5. The mother asserted, and it seems clear, that the father has continued to breach the Family Violence orders by sending text messages.
  6. The mother asserted that the father stalked her on 8 August 2013.[9] The father did not respond to this in his affidavit filed 27 September 2013 although he responded to other paragraphs in the mother’s primary affidavit.
  7. The mother tendered a letter from Relationships Australia in relation to arrangements for the children to see the father in February 2013 in compliance with the order made by Watts J in July 2012.[10]
  8. The entirety of the reasons published by Watts J in July 2012 was before the Court. Those reasons provided a detailed chronology as to the history of this matter.[11]
  9. Watts J found that the mother had suffered a long history of domestic violence, both verbal and physical assaults at the hands of the father. He further found that the father had physically assaulted the mother on four or five occasions during the relationship. Watts J set out the details of that domestic violence at paragraphs 50 through to 61 of those reasons.
  10. Watts J made findings in relation to the father’s mental health and his involvement with mental health professionals.
  11. Watts J also made findings in respect of the father’s drug and alcohol use.[12]
  12. Watts J had serious concerns about the quality of the father’s evidence and concluded that he ‘lacked candour and credibility’.
  13. The decision made by Watts J to require the father to undertake a three month residential rehabilitation program arose in the context of the history of which I have referred to earlier and in the conclusions reached by His Honour in respect of those being in the best interests of the children.
  14. His Honour concluded:-[13]
    1. I generally conclude the proposal of the mother is in the children’s best interests with exceptions referred to below.
    2. In her most recent report, Dr [R] had changed the position which she had previously taken. She had become aware of the most recent drink driving offence (.194 with the children in the car). Dr [R] said that the children seeing their father in the contact centre was only useful for a short period of time. I am however of the view that it would be important for the children to retain some type of relationship with their father, if he does rehabilitate himself and he does heed the advice that he has been given most recently by Dr [R] in the witness box when he was asking her questions. In those circumstances the father could eventually spend time with the children unsupervised.
    3. The father was given a number of opportunities during the four day hearing to consider and accept Dr [R’s] recommendation for him to attend a residential rehabilitation program. By the end of the hearing the father had reached a firm decision not to involve himself in such a program.
    4. I find that it is in the children’s best interests to continue, in the short term, to see their father in a professional supervised setting. The aim of the continuation of that time is to afford the father an opportunity to reflect upon the position that he took at trial. A reasonable period for him to be able to firstly, have a change of attitude, and secondly, implement what is required is a period of 12 months. What is required is for him to enrol, attend and successfully complete a three month residential rehabilitation program at Ozcare at Cairns and secondly, enrol, attend and successfully complete the “Parenting Orders” program and the “Focus on Kids” program offered by Relationships Australia Queensland. In the event the father has done both of those things within a period of 12 months and provided documentary proof to the mother that he has done so, then I find it is in the children’s best interest to spend unsupervised time with their father during the day every second weekend.
    5. If the father remains unwilling, or otherwise fails, to comply with these conditions then it is not in the children’s long term best interests for this arrangement to continue, other than to provide an occasion twice a year for the purposes of the children being able to spend some face to face time with their father.
    6. The mother has sought that the father’s time with the children be suspended during school holidays. It would be appropriate, whilst the father is seeing the children, to suspend the father’s time with them during school holidays for one half of each school holidays to enable the mother to go on holidays with the children for at least half of the holidays without the requirement of them having to be in Cairns for the purposes of periodic contact.
  15. Watts J concluded that it was important that the children have some relationship with the father and to enable the father to rehabilitate himself. It is clear that the father was given opportunities during the hearing to consider the recommendation that he attend a residential rehabilitation program. However, it was also clear that by the end of the hearing the father had reached a firm decision not to involve himself in a residential rehabilitation program.
  16. His Honour concluded that it was in the children’s best interest that the father attend and complete the residential rehabilitation program, together with another program.
  17. The father has neither applied for, undertaken nor successfully completed such a residential rehabilitation program. The father did not seek to challenge the orders by way of an appeal to the Full Court.
  18. In his May 2013 affidavit the father annexed a letter dated 13 October 2013 from Mr U in relation to attending the residential program conducted by them. Mr U observed:-[14]

… At the time of assessment [the father] verbally offered our assessor a range of actions/activities that he had been undertaking in relation to his addiction.

From his account (emphasis added), it was deemed that entering the program would not be any further benefit to him.

We did not observe any documentary evidence to support his claims, and assessed him solely on his verbal claim for attending at these support group/activities.

  1. Mr U did not file an affidavit.
  2. By letter dated 11 October 2012 Ms W, the Drug Court Co-ordinator from Organisation X observed:-[15]

[The father] presented at our Cairns office on Tuesday 9th October [2012]. It was understood he has presented many times in the past to other people here at [Organisation X] with regard to receiving treatment. He explained his situation to myself and what he has been doing with regard to his recovery.

He stated that he has been attending AA for the past nine months and was also actively engaged with ATODs in [Town Y].

As he has been taken part in both AA and ATODs counselling in the community for such a lengthy period of time he is not a likely candidate for our 6 month residential rehabilitation program.

[The father] was understanding of this and was grateful for our advice. He is more than welcome to come in and see us in the future however assessing him for the residential rehabilitation program is not a likely course of action for our organisation to take.

  1. The father asserts that he has not consumed any alcohol since December 2011. This must be seen in the context of the findings by Watts J when he said;
    1. The father, for example, had difficulty in accepting that he had pleaded guilty to the most recent charge that had seen him go to prison (a third offence for driving with a high range of concentration of alcohol in his blood stream). Notwithstanding the certificate that was before the court (upon which the prosecution was based which indicated a reading of .194), the father maintained a story about his drinking prior to his apprehension in the motor vehicle with the children that bore no credible relationship to the objective evidence contained in the certificate.
    2. His statements to the police in relation to the quantity of alcohol he drank were at odds with his written evidence in this case (his written evidence for this case was prepared in prison and is a detailed document to which I find a great deal of attention was given by the father).
    3. In the second family report, Dr [R] has recorded what the children have told her about their observations in respect of their father’s use of alcohol whilst they were in his care. The father’s assertion was that the mother had coached the children to say what they had said. Dr [R] was not prepared to accept the children were coached. I do not find the assertion by the father to be credible.
    4. The father asserted that part of the reason why he has on three occasions had seriously high readings of driving under the influence (on 4.8.2007 he returned a reading of .253; on 24.1.2009 he returned a reading of .307; and most recently on 27.11.2011 he returned a reading of .194), is that he has an abnormal metabolism. There was no objective evidence to support this assertion. The father said he was intending to have a liver test done and that he was also challenging the most recent conviction on appeal. The father asserted that he only pleaded guilty because he had been “instructed” by his lawyer to do so but as I have already mentioned, at a later stage the father was even unable to acknowledge that he had pleaded guilty.
    5. I find that the father lacked candour and credibility.
  2. What was missing from this case was the obvious sworn testimony of experts providing objective support for the father in his evidence of alcohol use. For example expert treating medical practitioners in terms of abuse of alcohol, a report from Mr P (the father’s counsel said Mr P would not provide a report), a report from some of the counselling services, a report from the fathers general practitioner, a report from the other experts who the father has seen and sought treatment.
  3. Further, I am not satisfied that the father has made a genuine endeavour to undertake the course required of him by Watts J to enable the time with the children to revert to alternate weekend times.
  4. Warnick J in SPS and PLS[2008] FamCAFC 16(2008) FLC 93-363 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.

  1. In this case I sought and obtained submissions, as to the parties’ respective views; from the solicitor for the father and the mother (who represented herself) as to whether they sought that I determine that issue, that is, the application of the rule, as a preliminary or threshold matter. Each indicated to me that they did so.
  2. The Full Court in Miller and Harrington (2008) FLC-93-383 observed at paragraph 73:-

73. The application of the rule occurs within proceedings to which the provisions of Division 12A of Part VII of the Act apply. More specifically, the application of the rule occurs as part of “child-related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.

  1. Part of that needs to be that set out in the principals contained within s 69ZN that is:-

… consider the needs of the child concerned and the impact and conduct of the proceedings may have on the child in determining the conduct of the proceedings.

  1. In this case the father wishes to embark upon a review of a significant part of Watts’ J orders. As I said earlier, it was open for the father to appeal the Reasons for Judgment and Orders of Watts J of the 6 July 2012 but he did not do so. Some ten months after the orders were made the father filed this application and now seeks another hearing which would involve further impact upon the children, and the mother, who have been subjected to domestic violence caused by the father over many years.
  2. The change of circumstances claimed by the father is based, at least in part, upon his uncorroborated evidence that he has ceased consuming alcohol and that this has been the case since December 2011.
  3. Over the same period the father’s broader abhorrent behaviour has continued. He engaged in behaviour which led to his imprisonment for four months in the first half of 2012. He breached a Family Violence Order in August or September 2012 and was sentenced to imprisonment, although that sentence was suspended upon the father entering into a bond of being of good behaviour. He then breached another order and was fined in March 2013.
  4. The father has sent text messages which are in breach of a Family Violence Order.
  5. It is commendable, if it is accurate, that the father has addressed his alcohol addiction. This issue was central to the orders made by Watts J at trial. It was that very concern which led Watts J to make the orders requiring the father to undertake that residential rehabilitation course. If the father is correct in his assertion that he has consumed no alcohol since December 2011 that must have been a fact or factor which he brought to the attention of Watts J at the hearing of the matter or if he did not do so, the question could be asked as to why.
  6. I am not satisfied, on the evidence before me, that the father has made serious attempts to do such course and/or is precluded from undertaking such a course. I find that the father continues to object to undertaking such a course.
  7. One of the basis at which the father says he ought not to be made to comply with order 4.2 was that he has undertaken such rehabilitation and that the Court ought to be satisfied that it is no longer necessary. No objective meaningful evidence was provided to the Court to that end.
  8. It was open for the father to file affidavit material from expert treating physicians, but he has not done so.
  9. Another basis was that the father says that those courses are not available to him. I do not accept that assertion from the father.
  10. It was open for the father to call evidence from the Centres but he did not do so.
  11. Weighed against this is the impact of yet another trial on these children, in the circumstances outlined earlier in these reasons and in the reasons of Watts J.
  12. These children were exposed to high levels of violence and high levels of risk arising from the father’s abuse of alcohol. It is inadequate for the father to simply come to the Court and assert that this Court should believe him, in the absence of objective material on which that assertion could be reasonably tested against.
  13. It is obvious that some changes have occurred since the original hearing giving rise to the determination of Watts J of over eighteen months ago. I do not consider the father’s contention to his alcohol use and/or personal life, notwithstanding how commendable those matters may be, represent a material change as would take away the protection that the order provided by Watts J put in place for these children.
  14. In May 2013, about ten months after the orders were made by Watts J, the father filed an application seeking equal shared parental responsibility and significant and substantial time with the children. That was the case the mother thought she was to fight until shortly after the commencement of submissions on the Rice & Asplund (supra) argument.
  15. At that time the Court asked the father to reflect upon the nature of his application. It was submitted that the application was not made by his counsel but on instructions. It was only at that point that the father withdrew the substance of his application to the limited aspect of the vacation of order 4.2.
  16. As indicated above, there was no affidavit evidence from the organisations that could provide the residential rehabilitation treatment as envisaged by Watts J in order 4.2. It is unclear what information was provided to them and whether the residential treatment of the father was not available or unavailable in view of the father’s assertions as to his health (whether true or not). There was no other objective evidence from treating physicians or scientific tests which may or may not show whether the father had rehabilitated himself as he asserted.
  17. The whole of the father’s case was based upon that which he asserted was correct.
  18. Against this is the history of domestic violence which did not stop with the determination of Watts J but continued, at least until late 2012 and possibly into 2013. The children and the mother endured this violence over many years. The mother was then facing another proceeding which had been continuing in the Family Court since May 2013.
  19. Given the evidence adduced by the father, and more particularly the evidence which he did not adduce, I am not satisfied that there has been a material change in circumstances within the meaning of the principals which guide me and, accordingly, I dismiss the father’s application.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 4 April 2014.

Associate:

Date: 4 April 2014

 

[1](1979) FLC 90-725.
[2] Orders dated 6 July 2012 – Watts J.
[3](1979) FLC 90-725.
[4] Exhibit M3.
[5] At paragraph 81 of the father’s affidavit filed 10 May 2013.
[6] At paragraphs 16 and 17 of the mother’s affidavit filed 12 August 2013.
[7] At paragraph 83 of the father’s affidavit filed 10 May 2013.
[8] Ibid at paragraph 85.
[9] At paragraph 34 of the Mother’s affidavit filed 12 August 2013.
[10] Exhibit M4.
[11] Reasons for Judgment dated 6 July 2012 – Watts J at paragraphs 22 to 49.
[12] Ibid at paragraph 67 to 90.
[13] Ibid at paragraph 150 to 155.
[14] Annexure “exhibit MAB9” of the father’s affidavit filed 10 May 2013.
[15] Ibid annexure “exhibit MAB10”.

NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.  A breach of the section is a criminal offence.  The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.  

A printable version can be accessed from Austlii without pictures or advertisements here, which should be used if you wish to provide the case to the Court in your matter.

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