AMUNDSON & BOTSMAN

[2009] FamCA 976

FAMILY COURT OF AUSTRALIA

AMUNDSON & BOTSMAN [2009] FamCA 976

FAMILY LAW – CHILDREN – application of the rule in Rice and Asplund (1979) FLC 90-725 – where previous parenting orders were made by consent – where further orders were made by a Federal Magistrate with respect to Christmas school holidays and handovers – where the father filed an application seeking dismissal of the previous orders and seeking further parenting orders six months after the consent orders were made – where the mother seeks the summary dismissal of the father’s application – whether there has been a change or new factors have arisen sufficient to warrant further consideration of parenting orders – whether further litigation would be in the best interests of the child – the father’s application for final orders dismissed

Family Law Act 1975 (Cth) ss 60CA, 60CC & 65DAA

Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Miller & Harrington (2008) FLC 93-383
Marsden & Winch [2009] FamCAFC 152
Cortes & Cabrera [2007] FMCAfam 293
King & Finneran (2001) FLC 93-079

APPLICANT: Mr Amundson

RESPONDENT: Ms Botsman

INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

FILE NUMBER: ADC 75 of 2007

DATE DELIVERED: 16 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 28 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: Ms Tinning

SOLICITOR FOR THE RESPONDENT: Adey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

Orders

1. The father’s application for final orders filed on the 23 January 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Amundson & Botsman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 75 of 2007

MR AMUNDSON

Applicant

And

MS BOTSMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. Proceedings concerning the child X born in December 2001 were first commenced in the Federal Magistrates Court in June 2003.  Final orders were made by consent on 5 November 2003. 

2. Subsequently, further proceedings were commenced in the Federal Magistrates Court in January 2007.  There was considerable litigation, but again orders were made by consent on 10 July 2008 which provided that the child live with the father on alternate weekends, half of the April, July and September school holidays and otherwise live with the mother.

3. The order provided for both parties to have equal shared parental responsibility.  Ancillary orders provided for the father to spend time with the child on special occasions.

4. Final orders were made by Federal Magistrate Mead on the 26 August 2008 with respect to Christmas school holidays and handovers.  These orders were not made by consent.

5. The father appealed the orders in relation to Christmas school holidays.  Before the appeal from these orders was concluded, the father filed a further Initiating Application seeking final orders on the 23 January 2009.

6. In his application filed in January 2009 the father seeks the dismissal of all previous orders regarding the child, that the mother have the care of the child alternate weekends, at certain times during school holidays and special occasions and that the father “have care of the child at all other times”.  In a general sense the orders sought reverse the consent order made just six months earlier.

7. In the affidavit filed at the same time as his Initiating Application seeking final orders, the father made allegations concerning the mother’s care of the child, including that the mother neglected him, that she inappropriately disciplined the child and that the child had behavioural hygiene and medical issues. 

8. The matters raised by the father in his affidavit refer to matters which occurred in March 2008, April 2008 and dates after July 2008.  Some allegations are in general terms and not specific about the dates.

9. Justice Strickland heard the appeal on the 27 February 2009.  He set aside the order in relation to the time the child spent with the father during Christmas school holiday periods and made another order.

10. On the 27 February 2009 the mother filed contravention applications alleging that the father had failed to return the child without reasonable excuse on the 25 January 2009 and that in February 2009 he had contravened the order by failing to comply with reasonable directions of the Children’s Contact Service on two separate occasions.  (These contravention applications were heard separately by me at a later time).

11. The mother’s response to the father’s final application seeking different orders was based on the fact that there was “no substantial change to the circumstances” since the previous orders were made.  She sought the dismissal of the father’s application.

12. On 27 March 2009 the matter was transferred to the Family Court of Australia.

13. Both the mother and father have filed affidavits of themselves and witnesses.

14. It was agreed that the application to summarily dismiss the father’s proceedings should be heard on the papers before me.

Law and principles to be applied

1. The leading authority in relation to further litigation after a final decision is the case of Rice & Asplund (1979) FLC 90-725. This case has given its name to the principle which has been described as the “rule” in Rice & Asplund (supra). 

2. In Rice & Asplund (supra) Evatt CJ (as she then was), with whom other members of the Full Court agreed, stated that the Court:

   “… 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”.

3. In that judgment Evatt CJ said that the Court must be satisfied that:

   “…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.” 

   Her Honour continued: 

   “These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reason for decision.  It is a question of finding that there are circumstance 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.”

4. In the recent decision of SPS & PLS (2008) FLC 93-363 His Honour Justice Warnick warned against the use of brief or “shorthand” statements of the rule in Rice & Asplund (supra), suggesting that it may contribute to the rule being applied inappropriately.  (See paragraph 84).

5. In paragraphs 56 to 59 of SPS & PLS (supra) Warnick J said:

   “56.  …in Rice and Asplund, Evatt CJ recognised that a purpose of the rule was to discourage “endless litigation”. I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.

   57. In the Marriage of McEnearney (1980) FLC 90-866, Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499):

   …the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.

   The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child. (emphasis added)

   58.    Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts.  This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.

   59.    If the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.”

6. The authorities clearly establish that a Judge at first instance has the discretion whether to proceed to a full hearing or to determine the threshold question as to a change in the circumstances that might warrant further litigation.  In recent cases emphasis has been placed upon avoiding applying “name-tags” or “shorthand” rules.

7. The more recent cases continue to emphasise that the paramount consideration is the best interests of the child concerned.

8. The remarks by His Honour Justice Warnick in paragraphs 81, 84 and 86 of his judgment in SPS & PLS (supra) are helpful:

   “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. (Emphasis added)

   …

   84.    Although I do not suggest that, when judgments of the court in which the rule is discussed are read in full, the rule is in any case inaccurately or even insufficiently expressed, sometimes “shorthand” descriptions of the rule are used and are then taken up by others in later cases.  Some phrases used seem to better direct attention to the essential question than others.  For example, the phrase used by Nygh J in McEnearney (supra), that a court should discourage a parent from coming back to court where there “is really no startling new circumstance” focuses attention on the character of the circumstance itself.  Similarly, terms such as “a substantial change in circumstance since the making of an existing order”, as used by the Full Court in D and Y (supra), may tend to focus attention on the character of a particular event or events.  The essential question however is as to the sufficiency of new events to provoke a new enquiry.  The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them. (Emphasis added)

   …

   86     This provision and the position that the rule in Rice and Asplund is merely a manifestation of the best interests principle, establish that the rule survives. However, its [the rule’s] application must recognise the new legislative content in which the question is now posited and answered.  This includes the objects (and underlying principles) of the Part, set out in s 60B and s 61DA which provides that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption may be rebutted, but if it is not, then under s 65DAA, the court must consider whether the child spending equal time with each parent would be in the bests interests of the child or, if such an order is not to be made, whether the child spending substantial and significant time with each parent would be in the best interests of the child.”

9. His Honour’s decision was commented on in the Full Court decision delivered in October 2008 Miller & Harrington (2008) FLC 93-383 (Warnick, Boland & Murphy JJ).

10. Paragraphs 79 to 83 of their judgment is as follows:

    “79.  Later, Warnick J says:

    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 the 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, about the interests of the child in not being subjected to further litigation, is more powerfully in the child’s welfare, than to allow the application to continue.

    80.In our view, that passage need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.

    81.Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.

    82.However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.

    83.This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.”

11. At the conclusion of the hearing before me I drew the parties attention to the recent decision of the Full Court in the matter of Marsden & Winch [2009] FamCAFC 152 being a decision the Full Court delivered on the 26 August 2009.

12. The Full Court referred to His Honour’s judgment in SPS & PLS (supra) and said at paragraphs 48 to 50 inclusive:

    “48.         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.

    49.    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.

    50.    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.”  (Emphasis added, Footnotes omitted)

13. The Full Court then went on to consider Miller & Harrington (supra) and Cortes & Cabrera [2007] FMCAfam 293.

14. In concluding the discussion of the law, the Full Court said at paragraph 56:

    “56.  In our view, depending upon the facts of each case, a broader range of processes should always be considered.  This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. …”

15. Paragraph 58 is also instructive:

    “58.  That question might be better formulated in another way in the following proposition, namely that there is a requirement:

    (1)for a prima facie case of changed circumstances to have been established;  and

    (2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.”

16. In King & Finneran (2001) FLC 93-079, Justice Collier considered whether a sufficient change in circumstances could be established on the cumulative basis of several factors. At paragraph 62 he said:

    “62.  What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.   ”  (Emphasis added)

17. The court is required to consider the objects and principles underlying the provisions of Part VII of the Family Law Act 1975 (Cth). Section 60CA provides:

    “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

18. Section 60CC then directs the Court to factors which it must consider when determining what is in the child’s best interest.

19. The most relevant subsection is that which sets out the primary considerations, section 60CC(2)(a) and (b):

    Primary considerations

    (2)          The primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

20. The additional considerations are set out in section 60CC(3):

    Additional considerations

    (3)          Additional considerations are:

    (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

    (b)the nature of the relationship of the child with:

    (i)each of the child's parents; and

    (ii)other persons (including any grandparent or other relative of the child);

    (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

    (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

    (f)the capacity of:

    (i)either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    to provide for the needs of the child, including emotional and intellectual needs;

    (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

    (h)if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and

    (ii)the likely impact any proposed parenting order under this Part will have on that right;

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

    (j)any family violence involving the child or a member of the child's family;

    (k)any family violence order that applies to the child or a member of the child's family; if:

    (i)the order is a final order; or

    (ii)the making of the order was contested by a person;

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

    (m)any other fact or circumstance that the court thinks is relevant.

1. Section 65DAA is headed “Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances” 

2. That section sets out matters to be considered.  Note 1 to subsection (1) reads:

   “The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.”

3. Note 1 to subsection (2) reads:

   “The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.”

Father’s submissions

1. The father submits in his affidavit material and his submissions before me that there are ‘numerous changes in the mother’s lifestyle and living arrangements that are ample to satisfy the ruling Rice and Asplund”.

2. In particular, the father asserts:

   (1)that the mother gave false evidence in the earlier proceedings about her employment and that the child is cared for by her grandmother;

   (2)that the mother has changed employment positions in November 2008 with her current employment involving evening and night-shifts;

   (3)that the mother had changed the child’s school;

   (4)that the mother has moved her residence;

   (5)that the mother changes relationships frequently;

   (6)that the mother fails to provide a stable environment for the child;

   (7)that the mother allowed the child to see pornography;

   (8)that the child has begun to display inappropriate sexual behaviour;

   (9)that the mother dresses the child in inappropriate and dirty clothing;

   (10)that the mother fails to provide the child with adequate nutritional food and fails to address his medical issues;

   (11)that the mother does not discuss issues concerning the child with the father;

   (12)that the mother is aggressive and abusive towards the father and his current wife in the presence of the child.

Mother’s submissions

1. In response to the father’s affidavit the mother admitted some facts, but denied that there were sufficient circumstances to justify further hearing.  The mother submitted that the disagreements between the mother and father were an ongoing part of the highly conflicted relationship between the mother and father which had existed prior to the consent orders being made in 2008.

2. The mother conceded that there may have been occasions when the child was collected by the father after school when his clothes may have been “sweaty or dirty”.

3. The mother concedes that the child may have worn an aged bandaid at one time, but says that this is an insignificant matter.

4. The mother concedes that the child had constipation issues at an early age but does not concede that any recent incident of soiling of his undergarments is sufficient to justify a resumption of litigation.

5. The father asserts that in August 2008 (before the final orders were made in relation to the Christmas school holidays, but after the July 2008 consent orders) the child wore pyjama pants to school and was eating a muffin from McDonalds Restaurant.  The mother denies that the child every wore pyjama pants to school.  This matter has not been the subject of final determination of the evidence, but the mother submits that it does not amount to a significant change of circumstances.

6. The father’s complaints about the child being in possession of a pocket-knife and some matches were incidents which took place before the consent order was made in July 2008.

7. The father referred to an incident which he says occurred in late October 2008 when the child said that he had been “playing with bullets”.  The mother denied that this assertion by the child was correct.  She says the incident needs to be put in the context that the father failed to take any action in relation to the alleged incident, including informing the mother as to the child’s statement.

8. The father complains about the child staying overnight at the mother’s boyfriend’s home without adequate bedding.  The mother concedes that the child slept on a futon and denied the child was not given a proper breakfast.

9. The father complains about the child not attending school one day and also complains about the child being deprived of lunch on three occasions.  The mother denies that there was any intentional failure to take the child to school or that the child was not provided with lunch. 

10. The father complains about the child engaging in sexualised behaviour in early December 2008.  The mother rejects any implication that this behaviour should be attributed to anything she has done.

11. The father alleges that the child told him in early December 2008 that he walked home from school on his own and let himself into the house to wait for the mother to either “wake-up” or “come home from work”.  The mother denies that the child has ever been unaccompanied on the way home from school or left unsupervised or unattended.  The evidence in relation to these matters was not tested, but appear to be based upon a conversation the father allegedly had with the child and no other information.

12. The father alleged that the mother speaks about the father and members of his family in a derogatory manner.  This is based upon the child’s reports which are denied by the mother.

13. The father asserts the child has been able to watch adult rated programmes with inappropriate content for a child of his age.  No particular date is specified.  The mother denies the allegation.  This again has not been tested but is based upon the father’s interpretation of events and arising out of conversations with the child.

14. The father complains that the mother interferes with his telephone communication with the child.  The mother denies this.  Again, this has not been tested.  Again, the difficulties appear to relate to the extremely poor relationship between the child’s parents which has existed for some time, including for a considerable time prior to the consent orders being made in July 2008.

15. The father complains that the mother attempts to negatively influence the child against him and his family.  The mother asserts that the father has not stated that his relationship with the child has been negatively affected in any way, save that the father refers to difficulty in disciplining the child at times.

16. The father complains about the number of male partners the mother has had in the last 12 months.  He asserts that this is detrimental to the child’s emotional stability.  He does not explain how any detriment has occurred.  The complaints relate to a period that commenced prior to the finalisation of the proceedings in July 2008.  The mother denies having more than two male partners in the last 12 months and denies leaving the child, other than as appropriately supervised by trusted and familiar adults.

17. The father alleges the mother has engaged in drug use.  The evidence is based upon hearsay.  The allegation is strongly denied by the mother.

18. The father complained that the mother was talking about taking a Japanese student as a boarder and at one stage discussed placing a lock on the child’s door.  The mother admitted that these proposals existed at one time, but did not move beyond being a proposal.

19. The father complains about an injury to the child’s forehead which occurred in January 2008.  The mother said that the child was accidentally injured when they were playing on a play-station.

20. The mother denies complaints about tee-shirt and shoes worn by the child in an undated incident in 2008.  She also denies making any comments to the child during an alleged telephone conversation between the mother and the child in January 2009. 

21. The mother asserts that any individual incidents complained of by the father do not individually or on a cumulative basis make it appropriate to reconsider the parenting orders made by way of final orders on the 10 July 2008 and the 26 August 2008 (as varied after the appeal).

Discussion

1. Changes such as change of residence, school, the mother’s employment, her shifts, her relationships with other men do not disclose factors which are more than could be expected in the ordinary course of general living arrangements.

2. The father’s complaints about the child engaging in sexualised behaviour are not directly attributed by any reliable evidence to actions of the mother or in the mother’s household.

3. The father’s complaints about the child wearing inappropriate or dirty clothing are either explained by the mother or do not form an appropriate basis for re-considering the parenting arrangements for the child.

4. The father’s complaints about adequate nutritional food and failure to address the child’s medical issues are not supported by any evidence which would make it necessary to re-consider the parenting arrangements.

5. The father also alleges the mother fails to discuss issues concerning the child with the father and that there is an aggressive and abusive relationship between them.  These matters are similar to features and allegations which have existed for a considerable period of time.

6. While considering whether to permit further litigation concerning the child, it is necessary not only to consider whether there has been a change or new factors have arisen, but also to consider whether a further hearing about the disputed facts would be in the best interests of the child.  The first proceedings concerning the child commenced in June 2003 and concluded in November 2003.  Proceedings started again in January 2007 and were finally concluded in February 2009.  Many of the issues raised by the father are similar to, or of the same type as, complaints he had previously made concerning the mother and which related to issues which were before the Court before the consent order of July 2008.

7. Some of the other issues are clearly of a nature which would not warrant further consideration of the parenting orders, but fall within the category of the usual type of changes which occur in families from time to time.

8. The considerations under section 60CC are applicable to this decision.

9. The most significant are the primary considerations.  The existing orders have taken into account the benefit to the child of having a meaningful relationship with both of the child’s parents.

10. The need to protect the child from harm is a matter which requires careful consideration.  The nature of the allegations raised by the father need to be considered in the context of the ongoing dispute between the parties and the basis of the allegations (many of which are allegedly statements made by the young child X).

11. Section 60CC(3)(b), (c), (d),(f), (i) and (k) are factors of importance but the new material relied upon by the father does not establish sufficient basis upon which to review the recent consent order.

12. Section 60CC(3)(a), (e), (g), (h) and (j) are not significant factors in this matter.

13. The additional considerations include section 60CC(3)(l) and (m)

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

    and

    (m)any other fact or circumstance the Court thinks is relevant

14. In this context the authorities previously cited include cases which emphasised the psychological harm caused by ongoing litigation, not only to the child but generally other members of the family.  It is significant in this matter that it is in the child’s best interest for “endless litigation” to be discouraged unless other factors relating to the child’s bests interests indicate that litigation should occur.

Conclusion

1. Carefully weighing all of the factors to be considered in the particular circumstances of this matter I am satisfied that it is not in the best interests of the child that the father’s application for a change in the final orders be continued.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date: 16 October 2009