Ericsson & Ericsson (No.2) [2015] FCCA 3146 (27 November 2015)

Last Updated: 18 December 2015

 

FEDERAL CIRCUIT COURT OF AUSTRALIA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

REPRESENTATION

 

 

 

ORDERS

(1) The Initiating Application filed 14 August 2015 is dismissed.

 

IT IS NOTED that publication of this judgment under the pseudonym Ericsson & Ericsson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

 

DGC 1317 of 2013

Applicant

And

Respondent

REASONS FOR JUDGMENT

Background

1. The applicant father, Mr Ericsson, and the respondent mother, Ms Ericsson, have three children X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008. After a contested hearing I made final orders on 18 December 2014. The children’s orders are as follows:

(1) That the wife have sole parental responsibility for the children of the marriage X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008 (“the children”), in regard to the children’s education (both current and future) and health save that the mother shall, prior to making the sole ultimate decision about any such issue:

(a) Use her best endeavours to advise the father in writing of the decision intended to be made;

(b) Seek the father’s written response in relation thereto;

(c) Consider, by reference to the best interests of the children, any such response prior to making any such decision;

(d) Advise the father in writing as soon as reasonably practicable of her ultimate decision.

(2) That other than in paragraph (1) the parties have equal shared responsibility for the children.

(3) That the children live with the wife.

(4) That the children spend time and communicate with the husband during the school term as follows:

(a) Each alternate weekend from after school or like time on Friday to 5.00pm Sunday;

(b) Each alternate Thursday from after school or like time to 7.00pm;

(c) As otherwise agreed in writing between the parties.

(5) That the children spend time and communicate with the husband during (religion omitted) festivals as follows:

(a) In each even numbered year for the first 2 days of (omitted), the 2 days of (omitted), the 1 day of (omitted) and the last 2 days of (omitted) which are otherwise known as (omitted) and (omitted); and

(b) In each odd numbered year for the last 2 days of (omitted), the 2 days of (omitted) and the first 2 days of (omitted);

(c) On any other (religion omitted) festival that fall within the time that the husband would otherwise be spending time with the children.

(6) That the children spend time and communicate with the wife during (religion omitted) festivals as follows:

(a) In each odd numbered year for the first 2 days of (omitted), the 2 days of (omitted), the 1 day of (omitted) and the last 2 days of (omitted) which are otherwise known as (omitted) and (omitted); and

(b) In each even numbered year for the last 2 days of (omitted), the 2 days of (omitted) and the first 2 days of (omitted);

(c) On any other (religion omitted) festival that falls within the time that the wife would otherwise be spending time with the children.

(7) That for the purposes of spending time with the children pursuant to paragraphs 4(a) & (b) and 5(a) & (b) hereof:

(a) The party with whom the children shall spend the (religion omitted) festival shall collect the children from the conclusion of school or 3.30pm if a non-school day;

(b) In the event that the (religion omitted) festival ends at a time that the party would not otherwise be spending time with the children pursuant to these orders the party with whom the children spend the (religion omitted) festival shall return the children to the other one hour after the conclusion of the (religion omitted) festival; and

(c) In the event that the (religion omitted) festival ends at a time that (omitted) commences then the time to be spent with the party shall be extended to one hour after the conclusion of (omitted).

(8) That subject to the specific orders in relation to (omitted) Holidays, herein, the children spend time with the husband and the wife during school holiday periods on a week about basis as follows:

(a) In week one with the wife;

(b) In week two with the husband from 8.00am on Monday until 8.00am on Wednesday, with the wife from 8.00am on Wednesday to 8.00am on Friday and then with the husband from 8.00am on Friday until 5.00pm on Sunday.

(9) That the children spend time with the husband on Father’s Day from 10.00am until 6.00pm.

(10) That the children spend time with the wife on Mother’s Day from 10.00am until 6.00pm.

(11) That the children spend time with the husband on their (religion omitted) birthdays each year, provided same do not fall on a day when driving is prohibited, as follows:

(a) For two hours, after school, if same falls on a school day;

(b) For four hours as agreed or otherwise from noon to 4.00pm at times to be agreed, should same fall on a non-school day.

(12) That the children shall continue to attend (omitted) College and the cost of tuition, books, uniforms, excursions, camps and the like and any extra-curricular activities for the children be shared equally by the husband and the wife.

(13) That each party keep the other informed of their current residential address, email address and telephone numbers.

(14) That each party shall inform the other of their intention to remove the children from Victoria no less than 7 days prior to doing so and in the event that the party is to travel interstate with the children they shall inform the other of their destination and a telephone number for such period.

(15) That should the husband be required to return to (country omitted) for any period of time that he communicate with the children whilst he is overseas by Skype of telephone at 7.00pm Australian Eastern Standard Time each Tuesday and Thursday or as otherwise agreed in writing between the parties.

(16) That unless otherwise ordered by the court the parties their servants and agents be restrained by injunction from:

(a) Discussing these proceedings or the intervention order proceedings to or within the hearing of the children or any of them;

(b) Discussing any part of the evidence in these proceedings or the intervention order proceedings, including but not limited to oral evidence, recorded material, evidence in affidavits, reports and exhibits to or within the hearing of the children or any of them; and

(c) Showing the children, or allowing the children to have access to any written or other material relating to court proceedings between the parties.

1. 1. 2. On 14 August 2015 the father filed a new initiating application. He applies for orders that the parties have equal shared parental responsibility for the children and that the children live with the mother and father for equal time week about. He applies for different orders in relation to the various (religion omitted) festivals and holidays, an order for a psychiatric report of the mother’s fiancé Mr N and various other orders in relation to Mr N. He applies for an order that the mother relocate to a suburb within 20km of the children’s school in (omitted).
      3. The mother’s response applies for summary dismissal of the father’s application pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth). The application for dismissal was argued under the legal principles in Rice & Asplund (1979) FLC 90-725. A Rice & Asplund argument might be described as an application for summary dismissal but is more correctly described as application of the best interests principle. The provisions in s.60B of the Family Law Act 1975 (Cth) (principles and objects of the children’s provisions), s.60CA (best interests of children is the paramount consideration) and s.60CC (the best interest considerations) are relevant. Consideration can occur at any stage of a case. Here the wife wishes to apply them at the commencement.
      4. Prior to the commencement of the hearing of the mother’s application I asked whether there was any objection to my hearing the application because I had decided the previous proceeding and my reasons for judgement include adverse findings about the credit of the father. There was no objection.
      5. In Rice & Asplund, Evatt CJ said that a court should not lightly entertain an application to change an earlier order. To do so would invite endless litigation (at 78.905).
      6. The application of the rule as a preliminary matter is still an application on the merits. SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 at [48].
      7. In Marsden & Winch [2009] FamCAFC 152 the Full Court said at [46]:

         In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.

However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.[2]

Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:

(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.

(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

(3) 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.

8. The court must first look to see whether there is a change or changes in the circumstances and then whether that change or changes is sufficient to justify a reopening of the case. I must look at the considerations referred to by the Full Court above in Marsden & Winch.
9. I identify the changes asserted by the father as:
   1. The mother has re-partnered;
   2. The mother has moved to (omitted), a considerable distance from her residence at the time of the hearing and judgment;
   100. The abusive behaviour of the mother’s partner and son towards the children;
   4. The mother is not promoting the children’s involvement with their (religion omitted) religion and culture;
   5. The passage of time and the increase in ages of the children, particularly the eldest child;
   6. The children’s wishes.
10. Since the previous hearing the mother has re-partnered. The mother has moved her residence to (omitted) and now lives there with the three children, her new partner, and his 14 year old son.
11. The father alleges that the children have told him that they are bullied, intimidated and physically chastised on a regular basis by the mother’s new partner. He alleges that prior to May 2014 his children were generally confident, happy children. He says that although they were affected by the separation, by May 2014 they appeared to have settled down. Now he says they appear to have become extremely fearful and unsure and suffer from acute lack of confidence. He attributes this, at least in part, to their debilitating fear of the mother’s partner.
12. 8 December 2014 was the children’s schools Speech Night at (omitted) University. The father attended with the mother’s agreement. The parties disagree about what happened.
13. The father says that after the conclusion of the speech night he was standing in the building entrance when he saw his son Y beside the mother’s partner who was holding Y’s right hand. He said his son identified him and attempted to run towards him. He says that the mother’s partner violently pulled back dragging Y down the stairs away from the main exit to a further exit. The father says Y was in distress, crying and screaming repeatedly “let me go”.
14. The father says he was concerned for Y’s safety and requested the mother’s partner to release him. He says that the mother’s partner lifted Y by his left arm, held him into his chest and started running. He says that they were stopped at the crossing by a crowd of parents and the father says he again requested the release of the child. He says that the partner pushed him with his right hand and he was compelled to push away from him. He says bystanders and security intervened and released the child from the mother’s partner’s arms. He says that the other two children, X and Z were terrified. He says X said that he did not want to go to his mother’s place, he had been bullied by the mother’s partner’s son and did not want to go back. The Principal from the school and the Deputy Principal spoke to X and eventually the children went home with their mother.
15. The mother and her partner say that they saw the father in the main exit and went to another exit further to the left. They walked towards the zebra crossing to go to the car park and the wife says she heard the husband yelling “let go of my son”. Y was being carried by her partner. Both she and her partner say that the father attacked the partner from behind and tried to drag Y away. There was a scuffle and two men from the crowd restrained the father. She claims the father tried to hit her.
16. Police became involved but no charges have been brought. Both the father and mother’s partner obtained intervention orders against each other.
17. The father describes various incidents which he alleges the children have described to him. These describe physical disciplining by the mother’s partner and that the mother’s partner has been abusive towards his own son, including removing the door from his son’s bedroom.
18. The father has filed an affidavit in support of his application by Ms O. She describes the father’s relationship with his children in positive terms. She says that X and she had formed a very close relationship and describes discussions with him about his fear of the mother’s boyfriend and his abusive behaviour.
19. Both the mother and her partner deny there has been any ill treatment of the children. The incident about the removal of the door, the mother’s partner says this was done as a means of disciplining his son. His description of the event differs significantly from that in the father’s affidavit.
20. The mother in particular denies there is any need for a psychiatric examination of her partner, as sought by the father, or for an order that her partner be restrained from attending school functions, another order sought by the father.
21. The father raises some medical issues concerning the child X. The mother says that those issues are being appropriately managed.
22. The father says the children have frequently asked if they could live with him.
23. The other concern raised by the father is that the mother is not promoting the children’s (religion omitted) faith. He says that the children cannot attend (omitted) and (omitted) as they wish and alleges the children say they are forced to eat (omitted) food. The mother says the children continue to be brought up pursuant to traditional (religion omitted) culture and beliefs. She says the children remain in their private (religion omitted) day school and enjoy a (religion omitted) culture at home where the family keeps (omitted). She gives details.
24. One further matter requires mention. The children spent six nights with the father during the (omitted) period 2015. The mother says that the time of (omitted) and school holidays was such that there was one night only between the time the children should spend with the father under the orders for (omitted) and for the school holidays. She considered it better for the children that they not return for one night to her. This does not amount to a new circumstance and is not an argument in favour of equal time.
25. I must take into account my reasons for decision for the order of 18 December 2014. In those reasons:
    1. I accept as correct the mother’s description of the father’s behaviour during their relationship and that this behaviour was family violence as defined in the Family Law Act 1975 (Cth);
    2. I accepted as correct the observations of the family consultant, Ms T, that the father had persistently and inappropriately involved the children in the dispute, discussed the dispute with the children and pressured them to say that they want equal time;
    100. I conclude from Ms T’s evidence that under the current arrangements the children have a happy and affectionate relationship with the father and extending the time may have an adverse impact on the relationship because of the limitations in the father’s parenting skills;
    4. I accept the evidence of Ms T about the limitations of the father’s parenting skills and that extending the time beyond what was the existing time meant a greater chance of the father resorting to physically enforcing what he wanted the children to do.
26. The move by the mother to (omitted) and her re-partnering are both changed circumstances. The fact that the children have to adjust to living in a household which includes the mother’s partner and his son is a new circumstance. That the children are, according to the father, saying to him that they wished to live with him or spend more time with him is not a new circumstance. The evidence in the earlier hearing was they said to Ms T, and to the wife, similar things. The relevance of this evidence was an issue in the previous proceedings and is dealt with in my reasons for judgement. The extent to which the mother promoted the children’s involvement in adherence to their (religion omitted) religion and culture was an issue in the previous proceeding and dealt with in the reasons for judgement. This is not a changed circumstance. The children are older and the purposes of these reasons I will assume that that is a changed circumstance.
27. The first step in Rice & Asplund is satisfied. That is there are new circumstances. The next step is to consider whether the changed circumstances justify a reopening of the case. That requires consideration of the matters described in Marsden & Winch, that is the reasons for the original decision, whether there is a likelihood of orders being varied in a significant way, and if there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the children caused by the litigation itself.
28. The mother has moved the children’s residence a considerable distance, 50km according to the father and 40km according to her. This has not affected the operation of the orders. While there may be considerable travelling the children continue to spend time with the father according to the order. They continue to attend the (omitted) College. The school reports are positive for all three children including their diligence in their religious studies.
29. The father says that the distance means the children cannot visit friends or have friends visit on weekends or after school. Living half their time with him means that they would be able to. In the context of the issue of the amount of time the children should spend with each parent this consideration is of little consequence.
30. The mother has re-partnered which means the children now live in a household which has added to it the partner and his son. The mother disputes that there is any ill-treatment of the children by her partner or her partner’s son. In my reasons for decision in the earlier case I refer to the fact that the father accepted that the mother is a good mother and the reasons otherwise show that to be the case. I consider it most unlikely that she would permit her children to be treated in the way the father asserts.
31. Even if I assume that at a final hearing ill-treatment of the children by the mother’s partner and her son is found to have occurred there is little likelihood of a change in the orders for this reason, particularly a change to equal time. The reason for the restriction of the father’s time with the children was a combination of best interest considerations but in particular I accepted Ms T’s evidence that extending the children’s time beyond the then existing time may result in two things: It may have an adverse impact on the children’s happy and affectionate relationship with the father because of the limitations of the fathers parenting skills and for the same reason it might mean a greater chance of the father resorting to physically enforcing what he wanted the children to do.
32. The father disputes these opinions of Ms T and the findings in my reasons for judgment but there is nothing in the affidavits in the current proceeding which suggests that in a new case there would be different findings on these two issues.
33. If anything, the incident at the school’s speech night on 8 December 2014 reinforces the conclusions about the father. He was waiting in the exit to the building when the mother, her partner and the children were approaching. On his version of the events his response to what he considered ill-treatment of one of his children was confrontation. On his version the mother’s partner was physically restraining Y who was distressed. They were accompanied by the mother and the other two children. Other parents and children from the school were in the immediate vicinity. Senior members of the school staff were close enough to arrive soon after the incident commenced.
34. If I assume that at a final hearing the father’s version will be accepted, the probable conclusion that would follow is that, given other people in the vicinity, his intervention was not necessary for Y’s safety and that his intervention increased Y’s distress and caused distress to the other two children. It would reinforce the conclusion Ms T reached about the limitations in the father’s parenting skills.
35. The detail the father gives in his affidavits of what he says the children have told him about incidents at their home, if anything, reinforces Ms T’s conclusion that the father had persistently and inappropriately involved the children in the dispute, discussed the dispute with the children and pressured them to say that they want equal time. The father’s evidence suggests detailed discussion between him and the children.
36. Thus, even if the father’s version of the speech night event and the mother’s partners and his son’s treatment of the children was accepted at a final hearing, that would not provide evidence which would justify changing the existing orders. I consider it unlikely that the father’s evidence would be accepted. In my reasons for judgement I noted that the father acknowledges that the mother is a good mother and I said that this is confirmed by Ms T. I said that Ms T’s observations of the mother with the children were wholly positive. Given these recent findings I consider it unlikely that the mother would allow her children to be ill-treated in the way the father alleges. She, as already noted, denies these allegations by the father.
37. The father, in support of his application, has filed an affidavit by a psychiatrist Dr S. He says in his affidavit that he was asked to provide a report for the father in relation to the harm caused by the intervention order on him. He annexes his report to the affidavit. In his report Dr S says that he had available a Psychological Treatment Summary Report by Dr H, dated 14 November 2013. He did not have the report by the consultant psychiatrist Dr R. Both Dr H’s report and Dr R’s report are referred to in my reasons for judgment. Dr S says he did not have access to materials from the mother or the children. He had Ms T’s reports.
38. Dr S concludes that the father suffers from depression and anxiety. Dr S says this:

    I also have no basis in my materials, in knowing Mr Ericsson from direct interactions with him, to conclude that he poses a risk to his children, nor do I have a foundation of information based on my time with him to conclude that he should not have extended contact with his children.

39. There is nothing in the report by Dr S which shows changed circumstances. He does not suggest that the father’s state of mental health has changed as a result of anything which has happened since the previous hearing or that there is any change in the father’s mental condition since the previous hearing. I refer in my reasons to both Dr R and Dr H concluding that the father suffered from depression. Dr S reaches the same conclusion.
40. I conclude that there is little likelihood of the orders being changed. Whatever likelihood there is it is outweighed by the detriment to the children of another hearing. They have been interviewed for the purposes of a conference under s.11F of the Family Law Act 1975 and two reports by Ms T. In my reasons for judgement I accepted Ms T’s conclusion that the father had inappropriately involved the children in the dispute. Thus, apart from the detriment that disputed proceedings cause children there is a heightened concern in this case because of the risk that the father would again inappropriately involve children in the dispute. He may already be doing so.
41. The father applies for orders that the mother’s partner be the subject of a psychiatric report and that he be restrained from attending the children’s school functions. There is nothing in the material which would justify obtaining a psychiatric report of the mother’s partner in support of an application to change the orders. Consideration of whether the mother’s partner should be excluded from the children’s school events does not justify a reopening of the hearing.
42. The father applies for an order that the mother move the children’s residence to no more than 20km from (omitted). This would reduce the travel time of the children, but no estimates are given of how much. I cannot assume that travel time would be halved. It may be that the travel time between a residence 20km from (omitted) would be considerably more than half the travel time of the residence 40 or 50 km from (omitted). The application for this order does not justify reopening the question of the children’s best interests.
43. For these reasons I conclude that it is not in the best interests of the children for there to be a reopening of the hearing on the issue of the time they spend with their father or any of the other matters raised by the father.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Phipps.

 

Date: 27 November 2015