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Father seeks change in final orders due to continual breaches and alienation.

Blass & Blass (No 2) [2021] FCCA 1588 (16 July 2021)

The parties have two children, aged 11 and almost 8.  The mother and father are in dispute over previous parenting orders over their children X and Y.  The mother asserts that the father exposes the children to hostility.  The father asserts that the mother alienates the children from him. The father has reached the point of applying for a change of residence. The mother sought for the Court to not change their residence in promise of complying with future orders about the children spending time with the father. The Court, in making its orders, relied on the best interests of the children which is to not lose their relationship with their father. 

Facts:

The mother and father were in a relationship from 2007 to June 2015. They have two children, X, and Y.   The father filed an application for parenting and property orders in late 2015, not that long after the parties separated.  Final orders regarding the parties' children, X and Y, were made on 12 October 2018.  These orders provided for the parties to have equal shared parental responsibility and for the children to live with the mother and spend time with the father on alternate weekends from Friday to Sunday and for blocks of time in the school holidays. 

On numerous occasions after the orders were made time did not happen.  The father then filed two contravention applications seeking sole parental responsibility and that the children live with him.  Otherwise, the father asserts that no matter what the mother now says about intending to comply with orders in the future, the conflict and difficulty around compliance would continue.

The Independent Children’s Lawyer proposed that the father have sole parental responsibility for the children and that they live with him.  It was proposed that provided that the mother engaged in specialist counselling which focused on the benefit to the children of having a relationship with both of their parents and attended for two months then the children commence spending time with her, initially supervised, but in due course each alternate weekend and for half of the school holidays. 

Issue:

Whether or not it is in the best interests of the children for the father to have the sole parental responsibility. 

Applicable law:

Family Law Act 1975 (Cth) ss 60CC - provides that the Court, in making parenting orders, should treat the child's best interest is the paramount consideration. 

There are existing orders in place, and pursuant to the Rule in Rice & Asplund, the judge must be satisfied that there has been a sufficient change of circumstances to justify reconsidering the earlier orders.

Blass & Blass [2018] FCCA 2474 at [27] – [29], [37], [41], [70] – [101], [95] to [102] - Where there are allegations of family violence, but the father has a good relationship with the children and otherwise is of good character and there are mitigating and aggravating circumstances which contributed to the family violence.

Radley & Holder (2017) FCCA 2799 There are cases where people cannot get over what has happened to them and after the Court makes orders they find it impossible to comply with them and facilitate any time at all with the perpetrator of family violence...The court made orders for the children to spend more extensive time with the father... and there is objective evidence that since those orders were made the children have enjoyed that time. 

Analysis:

It was submitted by the father that the mother engaged the children in counselling without the father’s consent and that the counselling has been harmful.  The counsellors went to considerable lengths to try and get disclosures from the children which never came, they ignored all indications that the children were not in fact at any risk of harm from spending time with the father.  The mother's evidence regarding the harmful sexual behaviour of the father was not corroborated by witnesses and neither child has validated it.   The father has a very good attitude to the mother and to the idea of the girls spending time with her and that if they live with him they will not be at risk of losing a relationship with one of their parents. 

Conclusion:

The Court held that all previous parenting orders concerning X born in 2010 and Y born in 2013 (“the children”) are discharged.  The father shall have sole parental responsibility for the children, provided that he notifies the mother of any proposed decisions relating to the long-term care welfare and development of the children.  The children shall live with the father. The children shall spend supervised time with the mother. 

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Comments (9)
    • It was only a month ago I suggested in these pages that Judge Terry might be too extreme to be a judge. Then, as if to mock me, Judge Terry produced this! (Note: Her honour's judgment pre-dates my comment.)

      I have not read the judgment in its entirety - it deserves to be fully processed by software I am still working on - but take a look at one of its paragraphs:

      132. The father impressed as a pleasant and responsive witness, and the external evidence suggested that he was a pleasant person in his interaction with others. A few pages of the communication book which date back to 2019, which were all the father had, were tendered. The comments the father made in them were all pleasant and polite. Two of the pages pre-dated the recommencement of the litigation, so it was not a case of the father necessarily being engaged in image management, and he was polite notwithstanding the fact that prior to those dates there had been noncompliance with the orders.

      Her Honour, a sitting judge of the Federal Circuit Court, factored into her assessment the fact that one of the parents was "pleasant", "responsive" and "polite". Will wonders never cease?

      Further to that, her Honour made it clear that she was on the lookout for instances of "image management"!

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      • I guess one of the interesting implications of Joe's comment was, "Will a judge (having primarily been trained as a lawyer) going to properly understand every bit of expert evidence presented to him or her?" I don't see how that's possible when they don't have the same background as the experts and even if they did, some prominent judges have openly admitted they only did law because they couldn't get into the university course they wanted to and so judges may be too stupid to understand the more-intelligent expert. A third problem for the judges is that they may be too busy to think. A fourth problem is that there may not be a suitable, comprehensive, timely expert report when a decision is needed and a fifth problem is having to operate in a hysterical political climate.
        But if the answer is that judges won't understand some sorts of evidence, then why would experts and lawyers present that sort of evidence to them? There must be tremendous pressure on experts to present dumbed-down reports that tell judges what they want to hear.
        I do not "simply blame the Court", but do suggest that Honest Joe's comment alerts us to some systemic weaknesses. 

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        • Let's assume what suggest is correct.... "Will a judge (having primarily been trained as a lawyer) going to properly understand every bit of expert evidence presented to him or her?"

          If the judge was a lawyer specialising in Family Law they would have decades of experience not only in the law but in reading and analysing expert reports every day/week/month/year before they become a judge and then it would depend on the judge as to how many years/decades of experience they have in determining cases that have those reports.  To assume the judges and lawyers do not understand what is contained in those reports is really a stretch and to assume the reports need to be dumbed down is an outright insult.   

          As for the other assertions, perhaps to some degree they have some relevance, but as a whole, looking at the judgements that come out of the Courts in recent years how many could you read and say the Court got it wrong?  From those you believe the Court got wrong, how many of them could have been argued/presented better to get a different or more just outcome? 

          There would be very few cases that would fit the criteria you portray where the Court itself is simply in error.  

          May we suggest if you believe there are such cases that exist, let's put up a discussion, reviewing the case(s) and seeing if they could have been argued better or whether the Court itself is to blame for an unjust outcome?


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          • I agree with the tenor of your comment here that it is more productive to focus on individual judgments rather than to tussle in vague terms over whether the Courts are good or bad. I have contributed comments to these digests more than most and have tried to focus on what judges actually say rather than wander off and give my own views on related topics. It is a disappointment to me that, both here and elsewhere, there seems to be a paucity of people willing to focus in this way.

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          • The problem with current law judges across the board, is their decades of experiences whilst may of kept them in good stead some decades ago does not set them up for the current social climate by any means i.e they are out of tune with current societal behaviors. Human behavior has been radically altered and amplified outside the "norm" by social media. The narratives being played to this day in courts based on balance of probabilities are anything but. Judges are slowly waking up to this. However the precedents set in the meantime set the court up for imminent future failure.

            With this in mind, be aware a judgment that falls outside of societal expectations will always be looked upon as cringe worthy and looked down upon as such.

             

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            • To add, a dangerous notion, if society does NOT have confidence in the courts or the process (as Phil has pointed out) what alternative is there?

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