Carlyon & Graham [2024] FedCFamC1F 443

Case Summary

Summary Catchword

Family Law – Parenting – Interim proceedings – Application of Rice & Asplund
principle as codified in s 65DAAA of the Family Law Act 1975 (Cth) – Final orders
made in April 2022 – Mother alleges the child witnessed domestic violence by the
father, resulting in psychological harm – Mother claims father has hindered the
child’s relationship with her – Mother argues significant change in circumstances –
Father seeks dismissal of the mother’s application – Extensive litigation history –
Court finds no significant change in circumstances and deems reconsideration of
orders not in the child’s best interests – Application dismissed.

Children – Variation of Parenting Orders – Application Under Section 65DAAA Must Be Based on Facts, Not Belief

Introduction

On 11 March 2024, the applicant mother (hereinafter referred to as “the mother”) initiated proceedings by filing an Initiating Application seeking to set aside final parenting orders made on 8 April 2022 concerning the parties’ only child, X, born in 2013. The orders she sought included sole parental responsibility, having the child live with her, and the issuance of an Apprehended Domestic Violence Order (ADVO) to protect the child from the father. Notably, the mother’s application was silent as to any time with the father.

The respondent father (“the father”) opposed the application and sought its dismissal, filing orders pursuant to section 114Q of the Family Law Act 1975 (Cth) (“the Act”). The issue surrounding section 114Q was resolved by consent, and orders were made accordingly.

Given the nature of the mother’s application, the provisions of section 65DAAA of the Act were relevant. This section addresses the reconsideration of final parenting orders under the Act. Justice Schonell highlighted the importance of these provisions, stating:

“[44] In circumstances where there is in place a final parenting order the operative provisions of s 65DAAA must be considered.”

In addition to the material both parties filed in the matter, both parties agreed that the Court should consider the Reasons for Judgment delivered on 8 April 2022 by Campton J, which had been anonymised as Carlyon & Graham (“primary proceeding”). During submissions, the father’s counsel referred to an affidavit filed by the father on 4 April 2024, while the mother’s solicitors referenced an affidavit filed by the father’s solicitor on 18 April 2024.

Justice Schonell reviewed all the documents submitted by both parties but indicated that not every matter referenced in the submissions required detailed discussion. The matter proceeded based on the documents and submissions, and no application for cross-examination was made.

Background

To properly contextualise the current application, it is essential to recount the history of parental conflict, including the Court’s previous interventions.

On 8 April 2022, after a contested hearing, a judge of Division 1 issued final parenting orders granting the father sole parental responsibility for the child, X. The orders also stipulated that the child was to live with the father. For three months following the orders, the mother was to have no contact with the child, after which she was allowed supervised time at a Contact Centre for six months. Following this period, the mother could spend time with the child every alternate weekend and for half of each school holiday period.

These orders were issued in a context where the mother had urged the Court to make a positive finding that the father posed an unacceptable risk of sexual abuse and should therefore spend no time with the child. The trial judge, however, rejected these allegations after thoroughly evaluating the evidence presented.

The trial judge noted that the mother, during her oral evidence, made several serious accusations against the father, including claims that he was a paedophile, a “very sick and perverted human being,” and a member of a paedophile ring. She also asserted that their child had been sexually abused but did not definitively state that it was the father who had committed the abuse. As recorded by the trial judge:

“[4 – summarised] She had ‘no doubt’ that the father was a paedophile; and that the father is a ‘very sick and perverted human being’; and that the father ‘preys on his own son’; and that she believed [X] had been ‘anally penetrated’ but did not say that it was necessarily the father who had done this; and that the father was a member of a paedophile ring who took [X] to a […] introducing him to men who befriended [X] and that [X] was ‘groomed into performing sexual behaviours.’”

The father vehemently denied all of the mother’s allegations, maintaining that there was no credible evidence to support her claims. He suggested that the mother had fabricated these allegations to provoke immediate protective actions from various agencies, actions that were often taken without critical evaluation of the facts. The father expressed his concerns, stating:

“[10] [The mother] has made these claims to various agencies, including statements that invite the activation by these services of an immediate response and action devoid of any critical evaluation or consideration of the actual facts. In this regard, [the father] describes [the mother] as well versed in providing hot buttons, that immediately activated a level of concern, invited protective action, and put into motion a range of protective reactions, all of which failed to consider the lack of objective evidence in support of the allegations.”

By the trial’s conclusion, both parents and the Independent Children’s Lawyer (ICL) agreed that the parent with whom X lived should have sole parental responsibility. The trial judge ultimately found that while the father did not pose an unacceptable risk of harm to X, the mother did.

Expert Evidence and Findings from the Initial Trial

During the trial, a Family Report was prepared by Mr. H, who also provided oral evidence and was cross-examined. Mr. H expressed concern that the mother was immovable in her belief that the father had abused X. He suggested that no matter what the Court concluded, the mother and her family would likely continue to believe that the father was guilty of abuse. Mr. H emphasised:

“[107] …with the greatest respect, your Honour, no matter what you say or do is going to change what [the mother] and her family believe. If you formed the belief that abuse has not occurred, that is just going to likely be interpreted as you having gotten it wrong; you, having been biased, you, not having listened to the information, you having made an erroneous conclusion or just making a mistake. I don’t think anything is going to change their beliefs about what’s happened.”

Mr. H further opined that the mother’s unwavering belief would likely lead X to grow up disturbed, potentially believing that he was a victim of abuse even if no such abuse had occurred. This belief could result in significant psychological harm to X, similar to the harm experienced by actual victims of abuse. He warned:

“[109] I certainly think that it’s likely that he will grow up believing that his father is a person to be feared and to be avoided and who is dangerous to him. Whether that extends to sexual abuse or not depends on what is told to him, but I think it’s quite a likelihood that he will grow up to believe that. Your Honour, I have had other clinical cases where people have grown up to believe that abuse has occurred and have then become symptomatic in a way that is confirmatory of that, even though retrospective reconstruction of the evidence suggests that maybe the original assault may not have occurred at all, but that doesn’t correlate with them not being symptomatic and being anxious and stressed and having trouble trusting relationships and having problems with self-image and all the other incredible consequences of victims who’ve been abused.”

The trial judge found Mr. H’s evidence compelling and concluded that the mother’s belief posed a significant risk of psychological harm to X. The judge acknowledged the disturbing implications of Mr. H’s findings:

“[111] A particularly disturbing part of [Mr H’s] evidence was that his ‘inevitable conclusion’ that he believed [X] to be ‘really quite damaged now’. In that context, [Mr H’s] opinion, should it be accepted, necessitates prompt and robust action to change the trajectory of [X’s] life.”

Under the heading “Conclusions as to sexual abuse,” the trial judge found that there was insufficient evidence to support the mother’s allegations of sexual abuse against the father. The judge expressed a preference for the father’s denial of the events, supported by findings that the mother had a tendency to make serious allegations without evidence and to draw conclusions based on loose associations and assumptions:

“[307] The mother, in arriving at her conclusion that the father has definitely occasioned sexual abuse on [X], relies on ‘loose associations, gratuitous assumptions, overvalued beliefs, and the false construction of loose connections in order to formulate her beliefs.’”

In addition to the allegations of sexual abuse, the mother made various claims of family violence. However, the trial judge preferred the father’s evidence over the mother’s where their accounts differed and found that the mother’s evidence on several important topics was unreliable. The judge was not satisfied that the father had committed any acts of family violence as alleged by the mother:

“[324] I am not satisfied to the requisite standard that the father committed any acts of family violence as alleged by the mother.”

Subsequent Events Leading to the Current Application

Following the final parenting orders, the mother’s time with X transitioned from supervised to unsupervised visits. Problems began to arise during this period, leading to the mother’s current application.

In early 2023, an incident occurred at X’s school where the mother alleged that the father hit her with his motor vehicle while X was in the car. The father was subsequently charged with offences under the Road Transport Act 2013 (NSW) and was convicted after a hearing in late 2023 and early 2024. The father has since lodged an all-grounds appeal against the conviction.

In December 2023, the father claimed that the mother had failed to return X to his care in contravention of an order. He initiated proceedings for a Recovery Order, and on 29 December 2023, orders were made for the mother to return the child to the father, which she complied with.

On 11 March 2024, the mother filed the current application to set aside the final parenting orders.

Mother’s Submissions

The mother’s solicitor argued that there had been a significant change in circumstances due to several incidents following the final orders. The primary incident cited was the car incident in early 2023, which the mother’s solicitor described as an act of family violence. The solicitor also claimed that the father’s presence at the school constituted coercive and controlling behaviour.

The mother’s solicitor further submitted that the child had suffered psychological abuse as a result of witnessing the car incident and that the father had prohibited the child from discussing the incident. The mother’s solicitor relied on a report by Dr. J, a paediatric specialist, to support the claim that the child was prevented from talking about the incident. It was submitted:

“[27] The mother’s solicitor relied upon the report of Dr J, a paediatric specialist, in support of the submission that the child is prevented from talking about the car incident.”

Additionally, the mother’s solicitor argued that the father was reluctant to foster a relationship between the child and the mother and that the child’s behaviour following the events of early 2023 indicated that the child was experiencing anxiety and distress, presumably due to the father’s conduct.

Father’s Submissions

The father’s counsel countered that the report by Dr. J did not support the mother’s claims. Specifically, the report did not mention that the father had instructed the child not to discuss the car incident. The father’s counsel also argued that the Court could not conclude that the car incident constituted family violence, noting that the father had been convicted but had appealed the decision. The father’s counsel submitted:

“[29] The father’s counsel submitted that the report of Dr J is not supportive of the submissions made by the mother. Indeed, there is no reference in Dr J’s report to the effect that the father has informed the child that he cannot talk about the car incident.”

The father’s counsel further submitted that there had been no significant change in circumstances and that the mother had not demonstrated that reconsideration of the final parenting orders was in the child’s best interests:

“[30] The father’s counsel submitted that there has been no significant change of circumstances nor has the mother demonstrated that it is in the best interests of the child for the order to be reconsidered.”

Expert Evidence

Both parties referred to the report of Dr. J, which was attached to the mother’s affidavit. Dr. J’s report, dated 15 April 2024, did not mention the car incident, and the absence of this information could not be taken to imply that the doctor was unaware of it. Dr. J diagnosed the child with a gaming addiction, anxiety, and post-traumatic stress disorder, and noted that the child had been experiencing memory lapses and chronic headaches, likely due to the cumulative stress of his life experiences.

The father also submitted a report by Dr. OO, the child’s clinical psychologist. Dr. OO reported that the child had been experiencing stress, anxiety, and low mood, exacerbated by the high-conflict parental separation, family stressors, and ongoing court proceedings. Treatment sessions with the child focused on cognitive behavioural therapy to help the child manage his emotions, improve his sleep hygiene, and reduce interpersonal conflict. Dr. OO noted:

“[38] Based on their reports, [X] has been experiencing symptoms of stress, anxiety, and low mood in the context of a high conflict parental separation, family psychosocial stressors, and ongoing court proceedings.”

Applicable Law

Parenting proceedings are governed by Part VII of the Family Law Act 1975. Section 60CA requires the Court to regard the best interests of the child as the paramount consideration when making parenting orders. Section 65DAAA, which applies when a party seeks to vary or set aside final parenting orders, mandates that the Court must consider whether there has been a significant change in circumstances since the final order and whether it is in the child’s best interests to reconsider the order.

The Court has long held that it should not lightly entertain an application to reverse an earlier order unless there is evidence of changed circumstances, a principle known as the rule in Rice & Asplund. This principle underscores the importance of stability in the lives of children and the need to avoid unnecessary litigation. Justice Schonell elaborated:

“[48] The rationale for the existence of the so-called rule is that the best interests of children are not promoted by endless litigation and that once the court has made a determination, unless there has been established a change of circumstances, then the court should not engage in further litigation in relation to the child.”

Discussion

Justice Schonell found that the mother’s application lacked sufficient factual basis to warrant reconsideration of the final parenting orders. Much of the evidence presented by the mother and her sister consisted of assertions based on belief rather than fact, which is insufficient to meet the requirements of section 65DAAA. Justice Schonell emphasised:

“[50] Much of the mother’s affidavit and that of her sister constitutes assertions based on belief rather than fact. Their respective belief, irrespective of how strongly it may be held, is not evidence sufficient to engage the determination required under s 65DAAA.”

Regarding the car incident, Justice Schonell noted the discrepancy between the father’s and mother’s accounts and emphasised that without cross-examination, the Court could not determine whether the incident constituted an act of family violence. The mother’s failure to present evidence from the Local Court regarding the father’s conviction further weakened her case. Justice Schonell observed:

“[52] She has elected to place no evidence before the Court whether by way of Transcript or Judgment establishing the facts found by the Local Court as the basis for the conviction. This is significant because the father does not dispute that the car hit the mother, he says however that the mother threw herself on the bonnet of the car while the mother contends that the father drove the car into her. I infer that she contends that it was deliberate. There is a world of difference between the two propositions.”

The mother’s claims that the child was psychologically abused by witnessing the car incident and that the father did not foster a relationship between the child and the mother were not supported by objective evidence. Justice Schonell found that the child’s stress and anxiety were likely due to the cumulative impact of various life events, including the high-conflict nature of the parental relationship:

“[54] I have no doubt that the child would have been distressed by witnessing such an event. It is apparent however from the report of Dr J that the child’s stress and anxiety are in part a function of the build-up of events over the course of his life.”

Justice Schonell also expressed concern that the continuation of litigation would further exacerbate the child’s distress, as noted in the expert reports. The judge emphasised that the current orders, which granted the father sole parental responsibility, were designed to protect the child’s safety and well-being, and there was no compelling evidence to suggest that these orders should be reconsidered:

“[64] I am satisfied that in light of the findings recorded in the Reasons for Judgement as to unacceptable risk and the events referred to in the evidence subsequently that the child’s developmental, psychological, emotional, and cultural needs and the party’s capacity to meet those needs are met by a continuation of the current orders.”

Conclusion

Justice Schonell concluded that the mother had not demonstrated a significant change in circumstances that would justify reconsideration of the final parenting orders. The continuation of the current litigation was contributing to the child’s anxiety, and the cessation of proceedings would likely benefit the child’s mental health. As a result, the mother’s application was dismissed. Justice Schonell remarked:

“[70] I am not satisfied that any of these matters referred to by the mother, either individually or collectively, constitute a significant change of circumstances that warrants the Court’s reconsideration of the parenting issues. I am further satisfied that a reconsideration of the parenting orders would be inconsistent with the best interests of the child.”

Disposition

Justice Schonell dismissed the mother’s initiating application filed on 11 March 2024, upholding the final parenting orders made on 8 April 2022:

“[71] Accordingly I will dismiss the mother’s initiating application filed 11 March 2024.”