Astin & Harlow

[2007] FamCA 1544

FAMILY COURT OF AUSTRALIA

ASTIN & HARLOW [2007] FamCA 1544

FAMILY LAW – CHILDREN —With whom a child spends time — Orders —Contravention—where mother alleges countless and repetitive contraventions—where parties only witnesses to incidents in question—whether father has reasonable excuse for contravention—where father relied upon advice and information from solicitors—where confusion as to effect of concurrently operating orders—where mother sought to re-litigate children's issues—where mother failed to adduce Rice v Asplund grounds—contraventions dismissed—leave to re-litigate children's issues denied.

APPLICANT: Ms Astin

RESPONDENT: Mr Harlow

FILE NUMBER: BRF 9414 of 2000

DATE DELIVERED: 24 October 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 24 October 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The applicant appeared on her own behalf

COUNSEL FOR THE RESPONDENT: Ms Carmody of Counsel appeared for the Respondent

SOLICITORS FOR THE RESPONDENT: Carne Reidy Herd, Solicitors

Orders

IT IS ORDERED THAT:

1. Nine (9) contraventions contained in the Mother’s Contravention Applications dated 22 June 2007 and 1 July 2007 are dismissed.

1. The Mother’s Application in Form 2 dated 25 July 2007 is dismissed.

1. The Mother is to pay 50% of the Father’s taxed costs of and incidental to today’s proceedings and the proceedings before Judicial Registrar Smith on 9 July 2007.

1. Liberty to apply.

IT IS ORDERED BY CONSENT THAT:

1. All other outstanding contraventions contained in the Mother’s Contravention Applications dated 22 June 2007 and 1 July 2007 are dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 9414 of 2000

MS ASTIN

Applicant

And

MR HARLOW

Respondent

REASONS FOR JUDGMENT

1. I propose to give a brief overview of the history of this litigation so that the current proceedings can be seen in context and seen in perspective of the events that have transpired over the last seven years. 

2. The proceedings commenced, I believe by application by the father, in November 2000.  In early 2001 a report from Mr N was made available and subsequently a family report from Ms E was also available by April 2002.

3. The matter proceeded to an eight day trial in June, September and December 2002.  His Honour Monteith J handed down a decision in February 2003.  The effect of that order was the child was to live with the father.  That decision having been given on 10 February 2003 the mother filed proceedings on 5 March, less than a month later, seeking to amend the orders in significant ways.  I take into account that by the end of that month orders were made, I think largely by consent, but if not, the orders were certainly made amending the orders in accordance with the mother's application.

4. In May 2004 Mr M provided a report.  Suffice it to say that Mr M is an extremely experienced social worker who regularly provides reports and gives evidence in this jurisdiction.  He was satisfied at that point in time the mother was fabricating allegations against the father.  I am more than satisfied from my knowledge of such matters that Mr M would be slow to make such an assertion unless there was an abundance of evidence to support that view.

5. At paragraph 40 of his report he observed that:

   "[The mother] has suffered an extreme emotional reaction to the loss of residence of her daughter and that she has held onto the hope of retrieving this loss.  I have not had the opportunity to view her at previous times to make any conclusive comparisons, but it is my general view that her reasoning has been compromised by the severity of her reactions.  It is also true that she has acted consciously to subvert the relationship between [the child] and her father and has exposed her daughter to a severe form of emotional abuse.”

6. The mother, as a result of orders made by the Court, proceeded to seek psychiatric intervention. She consulted a psychiatrist, Mr L, practising on the Gold Coast.  He provided a letter of 10 April 2005 together with various other letters. More significantly Dr V who, again, is a very experienced psychiatrist, regularly giving evidence in this Court, provided a report of 27 September 2005.  I do not need to go into the contents of Dr V’s report.  Suffice it to say he was satisfied that the mother suffered a form of personality disorder.  It was not a provisional diagnosis as the mother would assert today in this courtroom.  Dr V’s report was before me for the purposes of the trial last year, as was all of this material.

7. Mr M provided a further report in October 2005.  The matter proceeded again to trial.  I think it was set down for some four or five days before me in June last year.  On the second day of that hearing the matter was settled.  There was an independent children's lawyer and the parties were each legally represented.  I can remember the case very clearly and when the settlement arrived I went through the usual procedures that I adopt of speaking to the parties directly and individually to satisfy myself that the orders were entered into without pressure, with a full understanding of the consequences of the orders. 

8. Those orders were made by consent on 27 June last year.  They are very detailed orders.  The mother has filed contravention applications in April this year, June this year and October.  The April contraventions were withdrawn, I understand, on an appearance in July before the Judicial Registrar.  The contraventions alleged in the contravention applications of 22 June and 1 October 2007 total 33; 30 in the June application, three in the October application. 

9. The nature of the contraventions range from failing to provide a phone number as required by the orders, not providing the child for contact at the appointed time, engaging in denigration of the mother to the child and a range of other allegations.  Having regard to the considerable number and the repetitive nature of a number of the allegations, this morning I indicated I would only allow the applicant to proceed on 10 contraventions and invited her to nominate which 10 she wished to proceed with.  I invited her to select what she considered to be the ones which, in her view, had the greatest prospect of success.  As she went through the list it passed that she nominated nine contraventions.  I proceeded to hear the nine applications.  I am satisfied the nine selected represent a reasonable cross section of the types of contraventions alleged by the applicant.

10. The only witnesses in the contraventions were the applicant mother and the respondent father. Additionally, with the orders of 26 June, O.9 was in terms that neither party was to file any further application in relation to parenting orders or arrangements in any Court having jurisdiction under the Family LawAct (1975) as amended without first obtaining the leave of the Family Court of Australia to do so. 

11. On 25 July the applicant filed a form 2 application seeking orders permitting her to re-litigate child related issues. I have deferred the hearing of this application until after the selected contravention applications have been dealt with.

12. I now turn to consider the nine contravention allegations.  At the outset I have to record that I was far from impressed with the evidence of the applicant.  I found she lacked insight into her behaviour.  I found that she lacked credibility generally.  The orders, as I have stressed, of 27 June were consent orders.  I am more than satisfied from my direct questioning of the parties at that time that they entered those orders of their own free will.  The applicant now says that the order granting the father sole responsibility for the long term issues concerning the child was agreed to under duress, presumably duress from the lawyers.  I reject such a suggestion from the mother.

13. She says in her material, which is before the Court for the purposes of today's hearing, that the hearing in June last year, her evidence was bypassed.  I suppose that is one way of putting it.  The reality is, she entered into consent orders and the matter did not have to proceed into any further evidence.  Consent orders were entered into after the father had been subjected to a full day of cross-examination in the proceedings.  By contrast, I found the father to be an impressive, precise and reliable witness.

14. I turn to consider the nine contraventions which have been summarised in exhibit 1, a handwritten document prepared by the father's legal representative.  The first contravention relates to 15 June 2007.  The mother's complaint is that the time spent with the child did not commence until the Saturday morning, it should have commenced on the Friday afternoon.  The father admits that there was non compliance with the strict terms of the orders but says he had a reasonable excuse. 

15. The orders of 27 June were graduated to provide for the mother spending increased time with the child over a period of time.  By 15 June 2007 the mother's contact was to commence after school on a Friday.  However, by this stage the father was having the child home schooled.  Under the consent orders the father had sole responsibility for the child's long term care and also sole control of educational issues.  The father says the child has a hearing deficit in the high octave range and he wished to have the child attend elocution and drama lessons which the child was very keen to attend.  The only time available for the person he had selected was on a Saturday morning.  At the hearing in June last year the mother had agreed that she would take the child to any extra curricular activities for which she was enrolled.

16. The father wrote to the mother personally on 10 August 2006.  In that letter he said:

    "[The child] is commencing private speech, elocution and theatre performance lessons as part of her personal development.  This is in addition to her current drama group classes each Tuesday.  The private speech elocution and theatre performance lessons with [Ms S] will occur on Saturday mornings, fortnightly initially, at either 11.00 am or 11.30 am.  The tuition, one on one, will go for 30 minutes and I'll handle payment for these lessons.”

    He then gave the option of two addresses where it could occur, specifying the different times for each address:

    "Please advise today which is most suitable for you to take [the child] as to when your contact falls on the Saturdays where she will have classes so I can advise [Ms S].  Note:  [the child’s] first lesson to attend is next Saturday, 19 August.”

    There was no reply.  Notwithstanding this, the father delivered the child to the mother via the contact centre, which was the arrangement in accordance with the orders at that point in time.  It was a Saturday morning.  The mother, notwithstanding the assurances she had given to the Court some two months earlier, did not take the child to the elocution lessons as requested.  Thereafter when the father heard of this he had his solicitors write and that is annexure 3 to his affidavit filed by leave on today's date.  That letter says:

    "Our client, and more particularly, [the child], was most disappointed that you did not take [the child] to her speech elocution theatre lesson with Ms [S] on Saturday, 19 August at either 11.00 or 11.30.  Our client considers that as the mother of [the child], you would've put [the child’s] interests before your own.  We recall at trial you telling Barry J that you were prepared to take [the child] to activities like her horse riding activities if such activities fell when you were spending time with [the child].  It's disappointing that you've now resiled from that position and are clearly putting your interests before that of [the child].”

17. The letter then went on to say:

    "Accordingly on Saturday, 26 August 2006 and for each Saturday thereafter while the lessons are held, our client will take [the child] to the 11.00 am class and then deliver [the child] to the contact centre after class.  Our client will deliver [the child] to the contact centre at approximately 12.00 pm.  If you wish to reconsider your position and involve yourself in taking [the child] to this lesson then please let us know.”

    The mother's reply was by email of 9 October.  At the second paragraph of that letter she says:

    "Your client is currently breaching the orders and may I add, the orders were made by consent as Barry J did not see the trial through and all my evidence was bypassed."

    Claiming her evidence was “bypassed” is one way of looking at it but it is a fairly perverted way of looking at it.  The fact is she consented.  There was no need to have any further submissions or any further evidence in the matter.  The letter says:

    "I now wish to pick up [the child] at 9 o'clock on Saturday mornings and I'll take her to [Ms S’s] classes.  I've made contact with this woman and to date she has failed to provide me with details but I can discuss this with her.”

    She goes on to say:

    "I now ask you to provide me details of who recommended these classes, how long they're to go for and her business name, her ABN number and her professional background, her postal address, her business landline and fax numbers and her reasons for only wanting these classes on my contact weekend.  Your client will need to address these matters or a contravention application will need to be filed.”

    The reality is the mother was under a misapprehension.  The classes, as I understand the evidence, were every Saturday. 

18. The father delivered the child in accordance with the mother's request.  Annexure 7 to the father's affidavit is a letter or a report from Ms S setting out her dealings with the child and the behaviour of the mother on that occasion.  I do not intend to go into the report in detail, suffice it to say it speaks for itself.  I intend to place weight on this report.  It is annexed to the father's document.  The rules of admissibility of evidence in children's matters have been broadened considerably.  I accept the report of Ms S is most likely an accurate description of what occurred.  If that be the case the mother's conduct was bullying, rude, aggressive, controlling and totally unacceptable and inappropriate.  Ms S made it clear she would have no further dealings with the mother.

19. The situation was that the father continued to take her and the mother has selected 15 June 2007 as the date when she should have had contact on the Friday afternoon.  I make a finding that the attendance at the classes on Saturday morning was part of the child's education for which the father has sole control.  I bear in mind the mother's assurances to the Court that she would take the child to any extra curricular activities that were organised.  I bear in mind that her behaviour was such that Ms S reasonably formed the view she would not have any further dealings with the mother.  I find in the circumstances the father had a lawful excuse in acting as he did.

20. I note, by way of further exculpation for the father, to his great credit, he had offered the mother make up time.  He offered her four additional days at one time and the mother, for reasons that she has given, elected only to accept one further day of make-up contact.  I note that at the present time the child is not attending these lessons and the contact has reverted to Friday afternoon.  I note that the child received a high distinction for her exams.

21. The proceedings such as this are brought under what is known as Division 13A .  It is a section which came into effect on 1 July last year.  Division 13A is headed "Consequences of Failure to Comply with Orders and Other Obligations that Affect Children."  Under the heading in s.70NAD,  “Requirements taken to be Included in Certain Orders.”  The s.70NAE deals with meaning of reasonable excuse of contravention of an order.  It is in the following terms:

    “The circumstances in which a person may be taken to have had, for the purposes of this division, a reasonable excuse for contravening an order under this Act affecting children include but are not limited to circumstances set out in subsections (2), (4), (5), (6) and (7).”

    Subsection (2) says:

    “A person, the respondent, is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

    (a) the respondent contravened the order because or substantially because he or she did not at the time of the contravention understand the obligations imposed by the order on the person who was bound by it and;

    (b) the Court is satisfied the respondent ought to be excused in respect of the contravention.  If a Court decides a person had a reasonable excuse for contravening an order under this Act for the reasons referred to in para.2A it is a duty of the Court to explain to the person in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.”

22. I do not intend to take the matter any further than simply to observe if the situation arose again I think the father would be perfectly entitled to act as he did in furtherance of the child’s interests, having regard to the assurances given by the mother at the relevant time that she would be taking the child to any such extra curricular activities.  She either failed to do it or she failed to do it properly, that was why the father acted as he did.  The situation is now no longer relevant.

23. I then turn to the second contravention which was a contravention in Easter this year.  Under the terms of the order the mother was to have the first half of school holidays this year.  However, paragraph 15 of the orders was in the following terms, that is:

    "In the event the father wishes to holiday with the child overseas the father will provide one month's written notice to the mother of a date of departure and return and that the child's passport, currently held by the Court, be released to the father and the mother to receive a make-up weekend if necessary.”

24. The father wrote on 19 February indicating he wished to take the child overseas.  It was his parent's 50^th wedding anniversary.  He wished to spend time with the child and his parents on this significant family occasion.  There is no evidence of any complaint by the mother saying that she had made special arrangements for Easter, that she objected strenuously or she would be put to loss, financial loss or inconvenience.  Seemingly the mother acquiesced in this.  The father proposed that the mother have the second week of the Easter holidays.  The mother now complains that the contact did not start on the correct day which was the Thursday.  For the first half of the school holidays from Saturday 9.00 am the child wasn’t delivered until Wednesday, 11 April at 12.00 noon after landing from the United Kingdom.

25. It is not disputed that the father had given the written notice required, that he had gone overseas with the child.  I find that it was in conformity with the exception to the orders provided in paragraph15.  The mother does not suffer any prejudice in that she had one week of the school holidays, it was the second week.  She says that there were relatives coming up to see the child but, again, I am somewhat sceptical of the mother's claims in this regard.  There is no evidence corroborating that.  For the reasons given, I will dismiss the contravention alleged against the father on the basis that there is no breach whatsoever.

26. The third breach relates to 28 September 2006 and is similar to the first contravention alleged, namely 15 June 2007.  For reasons that I have previously given I find that the father's conduct at that point in time was reasonable, amounting to a lawful excuse.  The mother had the option of taking the child at that point in time.  She was not due to get the child until 9 o'clock on Saturday.  She had the option of collecting the child at 9 o'clock.  All she had to do at that point in time was to agree to the father's proposals made in writing in August.  It was not until October that she took the action that she did, so that as of 28 September I find the father is perfectly entitled to taking the child to ensure her attendance at the extra curricular activities. 

1. The fourth complaint by the mother relates to a failure to provide contact appropriately on 6 June 2007.  She says as to the statement of the alleged contravention:

   "I am supposed to pick up the child at 9.00 am at the […] Contact Centre for the start of school holidays but have been given the second half without my agreement.”

   The mother has just got the date wrong, the 6 June 2007 is a Wednesday.  The school holidays did not start until 24 June and ended on 9 July.  Perhaps she is out by a fortnight.  I am not sure.  She did not seek to amend her application when this was pointed out to her.  It is a serious matter to contravene an order.  It is fundamental is she is going to make such allegations that they be in the correct terms.  I will dismiss that allegation because there was no requirement for contact on 6 June.

2. The next complaint is on 24 March 2007 and that relates to a breach of O.8 which was in terms that there be, in effect, a non-denigration clause that provided neither party denigrate the other or the other's partner or any member of their family or household to or in the presence or within the hearing of the child and to use their best endeavours to ensure that no other person speaks that way in the presence or in the hearing of the child.  The mother's complaint is that presumably on that day she collected the child and the child said to her:

   "There is something wrong with your mother's head.”

   She seems to be reporting something that, according to the mother, the father had said to the child.  The father denies making any such statement to the child.  The child could have heard it from the grandparents.  The child could have heard it from somebody else.  The child may have made it up.  The mother may have made it up.  I do not know where the truth lies.  I am certainly not going to accept such evidence when it is one person saying "yea" and another person saying "nay". The mother bears the onus of proving that the statement emanated from the father in the form of denigration to the child.  Having regard to my stated reservations about the mother’s credibility (paragraph 12 hereof), I am far from satisfied her evidence is reliable.

3. There is an old adage in law, but a very correct one, he or she who asserts must prove.  The mother asserts that the father denigrated her to the child contrary to the terms of paragraph 8.  There is no evidence in light of the father's denial to that effect.  There is no corroborative material.  I propose to dismiss the contravention relating to that date.

4. Could I just make an observation that the second statement said to have been made claimed the father said to the child he would have her checked and she went to the doctor but - the Court made orders to "have her checked" and she went to the doctor but then she came back and she said there was nothing wrong with her.  Even if it was conceded by the father that he had made such a statement to his daughter, I fail to see how that would amount to denigration.  In any event, as was pointed out during the course of cross-examination, the statement, if made by the father and reported by the child, is factually incorrect.  The mother did go to the doctor and the doctor made a very serious diagnosis.

5. In relation to the sixth breach, it relates to a date in September this year where the mother says that the father failed to provide a new telephone number.  The father says that he sent a letter and he annexes a copy of that letter to his affidavit.  The mother says it was not received.  The ruling I make is that once the father has posted the letter, if it is the fault of Australia Post or someone else's fault, it cannot be sheeted home to the father that he is breaching Court orders when he has done all in his power to notify the mother.  There is no evidence that she has subsequently written to him and said, "Could I have a copy of your phone number?" 

6. The mother went on about the communication book but that is not available.  She could easily have written letters to the solicitor or direct to the father.  What places this alleged contravention in the absurd category, in a truly pedantic category, the pathetic category, is that if the mother simply rang Directory Assistance and got the father's phone number from that source, what is her problem?  If she could get the information from public records, why does she assert that there was a contravention and the father, technically, according to her did not comply with a requirement to provide her with his phone number? 

7. The next contravention is the contravention detailed in the 1 October application.  It is said on 13 July and 14 July she was supposed to have time with the child on that weekend.  The contravention relates to O.3 of the orders of 27 June.  I refer to them as 27 June because that is the day they were made.  I note the orders are dated as 26 June, which is the way they would have been handed up at the time.  I assumed that they were operating off draft orders.  It is neither here nor there.  Paragraph 3 says:

   "All weekend periods of contact will cease during school holiday periods from December 2006 with weekend contact to resume on the first whole weekend after school resumes in the new term after the school holiday ends.”

8. Now, the father says that the arrangement pursuant to the terms of orders that Monteith J had put in place for some period of time were always interpreted, that if the mother had had the time with the child on the weekend immediately preceding the commencement of the school holidays, then her time did not commence until a fortnight, a second weekend after the resumption of the school term.  He says, and it is not challenged, that he received confirmation of that arrangement from his solicitor.

9. There is a recent decision, a matter of Tilly & Ansell [2007] FamCA 1042, it is a decision of Kay J handed down on 3 September this year, the father conceded in that matter there may have been genuine confusion as to the changeover arrangements. In relation to the second contravention the father conceded the mother withheld the children based upon the suggestion and information from a family relationship centre, and she believes she was acting on reasonable grounds and his Honour found that that represents a reasonable excuse for contravention pursuant to s.70NAE (4). I am inclined to the same view. I do not think there was any malice associated with it. There was no deliberate breach of the orders. The father had not read the orders with sufficient clarity nor, indeed, it would seem, had his solicitor.

10. Again, it is a matter where one expects that whether it starts a week after the holidays or a fortnight, depending on whether it is an odd number of weekends or an even number, it would balance out over a period of time, however, I do not need to traverse that aspect.  I simply say I am satisfied on the material before me the father had a reasonable excuse in that he had an honest and reasonable but mistaken view as to the interpretation of paragraph 3 of the orders of June 2006.  Accordingly, for the reasons given, I will dismiss all nine contraventions.  That leaves, on my calculations, some 24 contraventions still to be dealt with.

    RECORDED  :  NOT TRANSCRIBED

11. By consent I will dismiss all outstanding contraventions as contained in the contravention applications of 22 June 2007 and 1 October 2007 are dismissed. 

    RECORDED  :  NOT TRANSCRIBED

12. On 22 June this year, which is just short of 12 months from the time of making the consent orders in this Court, the mother filed an application in a case, together with two supporting affidavits.  The application in a case is in the following terms:

    "The orders you are seeking; (1) see attached form 1 application and affidavit.  That form 1 application be processed as soon as possible; that mediation process effective from 1 July 2007 be ordered for Court orders; that shared parenting be implemented as soon as possible; that the child attend school nominated by the mother in her locality; that orders be redrawn and varied and reworded and made specific as per orders submitted by the mother; that leave be granted for final orders.”

13. The consent orders that have been entered into in June 2006 in effect prohibited the parties from litigating on child related issues without first seeking permission of the Court.  The form 1, which has not been processed by the Registry, is contained on the file.  In that the mother seeks 37 separate orders.  I do not need to canvass all those orders.  Suffice it to say the mother wants a 50/50 shared care basis from Monday after school to Monday before school with each parent on a two weekly cycle.  The child would have the fortnight with one parent and a fortnight with the other parent. 

14. She also seeks shared joint long term responsibility in relation to her education, long term care, welfare and development.  They would be the two major items.  The mother filed two affidavits in support of her application.  Her theory behind all this appears, from the mother's point of view, to be why file one affidavit when you can file two.  The affidavits are to a considerable extent repetitive.  Again, each affidavit was sworn to on 22 June. 

15. Paragraph 12 of the shorter of the affidavits the mother says:

    "The orders of 26 June 2007 – ”

    I assume she means the orders of 26 June 2006 -

    "- haven't been working and what was agreed to haven't been complied with resulting in frustrating and interfering with contact between myself and our daughter.  This appears to serve no purpose and is unreasonable as I cannot properly plan the child's care or enjoy time with her in a meaningful way.”

    Paragraph 13:

    "I feel that removing the child out of school and isolating at home to be home schooled is an extreme and warrants a form 1 application and hereby seek an urgent application so the child can return to school.  I strongly oppose home schooling and express this as a mother.”

    She goes on in paragraph 14 to say that she believes that's the child wish to - and it's for her benefit because of her hearing impairment.

16. She then says in paragraph 15:

    "Additionally the following contraventions highlight the frustrations and the interference and the child's care at contact.”

    By that stage the mother had already filed on 22 June a contravention application consisting of 30 contraventions, notwithstanding that, on 1 October she filed a further document alleging a further three contraventions.  I have dealt with those contraventions on today's date and have dismissed all of them.

17. The major point for any changed circumstances would seem to me to be the change of schooling at the start of this year.  The father, who has got sole responsibility for educational issues - as a result of the consent orders elected to have the child home schooled at considerable expense, I might add.  The child has a hearing deficit.  The child, it is said, had difficulties at school because of background noises.  There were concerns that have been referred to by counsel for the father that because of her hearing impairment the child may be victimised or bullied in the school environment.  The father says the child is being home schooled and is being home schooled successfully.

18. The mother is adamant the child should be subjected to mainstream schooling.  This, to my mind, is something that falls fairly and squarely within the power delegated to the father by the orders of June last year, namely that he was to have sole responsibility for educational issues.  No doubt he has got the best interests of his daughter in mind in having her home schooled.  He is not doing it to aggravate the mother or to, in some way, provoke her.  I can only proceed on the basis that he is doing it out of the child's best interests.

19. The difficulty with the mother's position is she wants to re-litigate all issues.  She seeks in her form 1 application shared care and joint long term responsibility.  During the course of today's hearings she suggested some minor changes to the existing orders such that she could have the child on Mother's Day or some time on the child's birthday.  I would have thought that with an exchange of letters between the parties, a bit of good will on either side, the orders could be amended by consent on those issues.  I certainly would not allow re-litigation on such relatively minor pointes.

20. At the commencement of today's hearing I provided to the mother a copy of the well known decision in Rice v Asplund, a 1978 decision of the Full Court.  The Could held at that time:

    "The Court should not lightly entertain an application to reverse an earlier custody order.  It would need to be satisfied by the applicant that there was some changed circumstance which would 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.  These are not necessarily matters for preliminary submission but they are matters which the Judge should consider in his reasons for decision.

    (2)  These principles apply whether the original order was made by consent or after a contested hearing;

    (3)  Once the Court is satisfied that there is a new factor or change in circumstance then the focus of custody should be determined in the ordinary way.  While the Court should give weight to any earlier decision and in particular to any findings of fact, the Judge is not bound by the earlier Court's assessment of the parties or views as to the best interest of the child.”

21. It is a decision which reflects commonsense.  It reflects the practicalities of the situation.  The parties cannot be allowed to litigate endlessly.  The parties in this matter have been litigating each year since the year 2000.  There was an eight day trial before Monteith J, and his Honour gave his reasons and he ordered care of the child to the father.  Notwithstanding that, some time afterwards the mother made allegations the father had sexually abused the child.  They were investigated at considerable depth, considerable expense and I am satisfied they were totally unsubstantiated.  There is a strong suggestion in the material that they were malicious.  I recall that on 27 June last year the mother, at my behest, publicly apologised to the father for the first time and categorically withdrew the allegations.

22. So the matter has not just had a long history of litigation, it has had a lengthy, traumatic history of litigation.  It is a situation where there is an abundance of evidence before the Court the child has been subjected to ongoing interviews over the last seven years from a variety of practitioners, police officers, medical practitioners, et cetera, all of which I am sure has had a cumulative detrimental effect on any child.

23. The mother says essentially there is two changed circumstances for the purposes of a Rice v Asplund argument.  One is the father's election to have home schooling, the second is continuous contraventions by him.  I have dismissed the allegations of continuous contraventions. 

24. I have regard to the concept of system abuse.  It is well known.  To allow the parties to litigate and re-litigate causes, of itself, the very system that is designed to protect the child, in effect, leads to abuse of the child.  There is the cost to the parties, there is the stress to the parties and the child.

25. I have had regard to the mother's assertion as to changed circumstances.  As I say, there would be arguments for and against home schooling.  There are justifications for it.  I would be more than satisfied the father is not spending $28,000 a year simply so that he can antagonise the applicant mother.  The view that I take is that the mother has not demonstrated sufficient change or any change since the situation that prevailed 12 months ago when the orders were made.  I, for that reason, will not grant the application in form 2 to allow the mother re-litigate child related issues.

    RECORDED  :  NOT TRANSCRIBED

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED  

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  24 October 2007