Baxter & Baxter
[2022] FedCFamC2F 82
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baxter & Baxter [2022] FedCFamC2F 82
File number(s): PAC 3233 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 1 February 2022 Catchwords: FAMILY LAW – Rice & Asplund threshold hearing – Orders made. Cases cited: Rice & Asplund (1979) FLC 90-725
Grace & Grace [2020] FamCAFC 286
Langmeil & Grange [2013] FamCAFC 31Division: Division 2 Family Law Number of paragraphs: 65 Date of last submission/s: 1 December 2021 Date of hearing: 1 December 2021 Place: Parramatta Solicitor for the Applicant: Mr Gonzalez Solicitor for the Respondent: Mr Timmer ORDERS
PAC 3233 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BAXTER
Applicant
AND: MR BAXTER
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
1 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Mother’s Initiating Application filed 15 June 2021 is dismissed.
2.In relation to the Father’s Application for costs, direct the Mother to file and serve a brief written submission as to costs (no longer than two pages) within seven days.
Note: The form of the Order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the Order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Baxter & Baxter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This is the determination of the applicant Mother’s Application that she be permitted to relitigate final parenting Orders made by this Court on 14 May 2018 in respect to the child X born in 2010. An Interim Hearing was held on 1 December 2021 with the Mother and Father’s respective solicitors making oral submissions. The Father opposed, pursuant to the principles in the decision of Rice & Asplund (1979) FLC 90-725 (“Rice and Asplund”), the Mother being permitted to relitigate the above Orders.
The child, whilst in the Mother’s care on 14 June 2012 (when the child was almost aged 2 years), suffered a traumatic head injury arising from “an acute fronto parietal haemorrhage and bilateral subdural collections over the parietal regions of the brain. X also sustained fractures to both hands and suspected fractures of the medial metaphysis of the distal left tibia” (see paragraph 6 of the family report of Dr C dated 5 February 2018, being annexed to the Father’s Affidavit filed 1 October 2021).
Pursuant to final consent parenting Orders made on 14 May 2018, the child was to spend supervised time with the Mother at a contact Centre initially for 6 visits, and thereafter supervised time by various supervisors including members of the Mother’s extended family. The Mother, pursuant to her Initiating Application filed 15 June 2021, seeks to discharge those Orders and begin spending unsupervised time with the child, in particular for block periods during the child’s school holidays.
The Mother relied upon the documents set out in her Outline of Case Document filed 29 November 2021. Again, her solicitor made oral submissions in support of her Application at the Interim Hearing.
The Father relied upon the documents set out in his Case outline filed 26 November 2021, his Tender Bundle documents (4 pages), and his solicitor’s written supplementary submissions. Again, his solicitor made oral submissions at the Interim Hearing.
The Court has considered all the above written material and oral submissions of the parties.
LEGAL PRINCIPLES
In Langmeil & Grange [2013] FamCAFC 31, the Full Court of the Family Court of Australia, stated:
42. Ground 4 concerns the “rule” in Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725. According to the Mother, the trial Judge failed to appreciate that the current allegations constituted a sufficient change in circumstances to warrant another hearing in relation to the children’s living arrangements.
43. The rule in Rice & Asplund was recently considered in DL & W [2012] FamCAFC 5; (2012) FLC 93-496 per May, Thackray & Strickland JJ. DL & W concerned Part VII as enacted immediately prior to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. The amendments do not affect the manner in which the rule operates. It follows that their Honours remarks in DL & W also apply to proceedings to which the current Part VII applies. Their Honours in DL & W correctly recorded that the “rule” has its genesis in remarks by Evatt CJ in Rice & Asplund at [78,905-06]:
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier Order and to the reasons for and the material on which that Order was based. It 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. Therefore, the Court would need to be satisfied by the applicant 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
44. Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances 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.
45. In DL v W, their Honours pointed out that:
65. The debilitating effect of ongoing litigation on children and parents alike was emphasised by Strauss J in this passage in Freeman and Freeman [1986] FamCA 23; (1987) FLC 91-857 at 76,470–71:
“Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. ... The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the Court, either after a full hearing or by a consent Order, has settled the question of custody, it is usually in the interests of the children that the Order made by the Court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. ...”
46. In DL v W and Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1, per Bryant CJ, Finn and Cronin JJ, their Honours endorsed, as do we, Warnick J’s approach to Rice & Asplund referred to in SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363. In particular, that the rule is a manifestation of the best interests’ principle and founded on the notion that continuous litigation over a child or children is generally not in their interests. Also, that the Application of the rule is connected with the nature and degree of change sought to the earlier Order.
47. As to the Application of the rule, the Full Court in Marsden v Winch said:
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.
In Grace & Grace [2020] FamCAFC 286, Ainslie-Wallace J stated:
8. The “ Rice and Asplund issue” is, of course, a reference to the eponymous decision and the “issue” to which reference was made has its genesis in remarks made by Evatt CJ in the case Rice and Asplund (1979) FLC 90-725 (“ Rice and Asplund”) at 78,905:
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier Order and to the reasons for and the material on which that Order was based. It should not lightly entertain an Application to reverse an earlier custody Order.
9. The principle is a manifestation of the best interests principle and founded on the notion that “continuous litigation over a child or children is generally not in their interests”.[1] The Application of the rule is connected to “the nature and degree of change sought” to the earlier Order.[2]
10. In Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 (“Marsden v Winch”), the Full Court said:
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.
11.The determination of whether there has been sufficient change in circumstances to warrant a re-opening of parenting issues can be determined as a preliminary issue or be considered at the same time as the hearing into that re-opening.[3] The Full Court in Marsden v Winch continued and at [58] formulated the inquiry to first establish a prima facie case of changed circumstances to have been established; and secondly a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
BACKGROUND
The Mother is aged 34 years. The Father is aged 39 years. Again, the child is aged 11 years.
Consent final parenting Orders were made in this Court at Canberra on 28 August 2013. At that time the child was aged 3 years. Those Orders provided, inter alia, that the child live with the Father; that the child spend time with the Mother, until 4 years of age, supervised from 9AM until 5 PM each second Saturday, and from 4 years to 8 years of age, on a graduating basis, increasing unsupervised time.
On 14 May 2018, by consent, final parenting Orders were made in this Court providing, inter alia, that:
(a)the previous parenting Orders be discharged;
(b)that the Father have sole parental responsibility for the child;
(c)that the child was to live with the Father;
(d)that the Mother shall have supervised time with the child once a month at the Suburb D Contact Centre on the first Saturday of each month;
(e)after spending time with the child at the above contact Centre on 6 occasions, the Mother shall spend supervised time with the child for a period of 6 hours once a month and to facilitate such time the Mother supervisor will collect the child from the above contact Centre and deliver the child to the above contact Centre at the conclusion of the 6 hours;
(f)for the purpose of supervised contact external to the above contact Centre, the Mother will be supervised by the following people:
(i)Mr E (the maternal grandfather) and/or his partner Ms F
(ii)the maternal grandmother Ms G and paternal aunt Ms H
(g)the Mother shall be at liberty to telephone or by Skype as agreed the child once a week as agreed upon an electronic mail with the Father; in default of agreement Sunday 7PM.
(h)the Father shall be at liberty to cancel or suspend contact with the Mother engages in family violence, as reported by the supervisors
On 14 May 2018, the Father appeared in person, the Mother was represented by her solicitor, and a barrister appeared for the ICL.
In the Affidavit of the Mother filed 15 June 2021, she states, inter alia, that she lives in the Town J area. She states that the child now lives in City K having moved from Town L. She refers to activities that she has had with the child during her 6 hours supervised time over the past few years, and asserts that the child is happy throughout his time with the Mother and whoever is supervising their time. She asserts that as the child is growing, it is appropriate for the activities that the Mother does with the child during the time together to be age-appropriate; in this context, the Mother asserts that the cause of this it is difficult to engage in such activities around the Suburb D area in the short amount of time that the Mother has with the child.
The Mother asserts that if she was able to spend more time with the child, particularly during school holidays, the child and the Mother would be able to build their relationship and the Mother would be able to take the child to enjoy holidays around the Region M, where there are plenty of activities for them to enjoy. The Mother further asserts that she lives on a 5 acre property in Town J which the child would be able to explore if you came to stay with the Mother. She further asserts that she seeks for her time with the child to be unsupervised in blocks at a time so that the child can get to know the family in her home. The Mother asserts that the Orders she now seeks would allow for more flexibility for the child to get to know his maternal extended family who are excited to see him. She asserts that the Orders she is seeking will benefit the child as he will not need to travel several hours so frequently, rather he would make the long trip a few times a year and the time spent with the Mother would be more meaningful.
In the Affidavit of the Mother filed 1 October 2021, she, in alleges, inter alia, that the Father has failed to comply with certain communication related Orders from the Courts Orders of 14 May 2018. She alleges that the Father’s cancelled 6 visits from January 2018 to November 2019 without explanation.
In the above Affidavit the Mother alleges that she attended counselling at M Psychology from August 2019 until December 2019 and learnt, inter alia, how to focus on certain ways to think before speaking.
She alleges that she attended psychologist sessions with Dr N from February thousand and 20 until August 2020 and learnt different things, inter alia, including discussing about understanding how the child’s accident could have affected him, how the Mother could have avoided the accident occurring, and what the Mother could do now and in the future to avoid anything happening in the future. The Mother alleges accordingly that she now has a much better understanding of what the child’s needs are and how the Mother can be a better person for him. The Mother alleges that the sessions with Dr N have given the Mother many techniques that she has used not only in everyday life but also in her time with the child whether it be impersonal by telephone.
The Mother alleges that she had contact with the child 12 June 2021 but due to the current covert lockdowns and restrictions the contacts have been cancelled since then.
The Mother alleges that during the time that she has spent with the child in person the child has told her, inter alia, that he really enjoys their time together and asked whether he can stay with the Mother at her home.
The Mother alleges that she is in a relationship with her partner of over 5 ½ years, Mr O.
In the Father’s Affidavit filed 1 October 2021, he refers to the parties separating in April 2011. He refers to the second set of parenting proceedings between the parties in relation to the child which had been commenced by the Father on 10 August 2016. He refers to the family report of Dr C dated 5 February 2018 which had been prepared pursuant to an Order of Obradovic J on 6 February 2017. This family report is a next to this Affidavit of the Father.
In the Father’s Affidavit he refers to relocating from Town L with the child to the Region P of NSW in late January 2020. He alleges that the drive time from his new residence on the Region P to the changeover location at Suburb D once each month takes about one hour and 15 minutes. He alleges that he is ready willing and able to travel to Suburb D to facilitate the changeover and time between the child and the Mother pursuant to the final parenting Orders of 14 May 2018.
In the Father’s Affidavit he annexes a report dated 1 June 2021 from Dr Q, Senior staff Specialist and head of Rehab 2 Kids with the R Hospital being a brain injury rehabilitation review of the child. The doctor states that the child was reviewed in the Brain Injury Follow Up Clinic on 1 June 2021. Under the heading “Impression” the doctor states that the child continues to demonstrate difficulties in relation to his ADHD with impulsivity and difficulties with self-regulation. The doctor states that he also has concerns about the child self esteem. The doctor refers to an authority prescription for Vyvanse medication, the consideration of psychology support, and the need to see the child for review in six months’ time in the clinic. In the body of the report, the doctor refers to feedback from the child’s teacher at school regarding behaviour with reports that the child is impulsive and having been more oppositional in the last couple of weeks.
In the Father’s Affidavit and the annexes a copy medical report from the S Medical Clinic dated 3 March 2016, in relation to an examination of the child at about that time, and in which allegations are made that the Mother hit the child 3 times on the arm.
FAMILY REPORT DATED 5 FEBRUARY 2018
The family report writer initially referred to her various interviews with relevant persons including the parties (interviews on 22 September 2016), and documents read by her, including Affidavits, pleadings, and subpoenaed documents from the S Medical Clinic and R Hospital.
The ultimate recommendations made by the family report writer were, inter alia, as follows:
(a)the Father have sole parental responsibility for the child;
(b)that the child lives with the Father;
(c)that the child’s time with the Mother be reintroduced in the context of a contact Centre;
(d)contingent on progress of the contact Centre, it was recommended that the child spend time with the Mother during the day only in the presence of the person who is acceptable to both parties. Given the distance that separates the parties, the family report writer recommends that this might be more feasible to occur on a monthly rather than fortnightly basis;
(e)the child have weekly telephone calls at a nominated time with the Mother;
(f)that both parties attend an anger management course;
(g)that the Mother attend counselling with a therapist with whom she can explore her parenting skills and impact of her behaviour on the child.
The Court observes that the final consent parenting Orders of 14 May 2018 were significantly consistent with the above recommendations of the family report writer.
The Court will now refer to certain sections of the family report.
The family report writer stated that the watershed event for the family occurred on 14 June 2012 when the child was admitted to hospital with a traumatic head injury. The parties have provided different accounts of how the child sustained the injuries. The Mother had stated that she was not present at the time the incident occurred in the child is in the care of her then partner, Mr T. She stated that she suspected the child climbed out of bed onto the bed head and then fell on the floor.
The family report writer refers to the child being discharged from hospital on 27 June 2012. While investigations are being conducted, the maternal grandmother and then the maternal grandfather assume the care of the child. Any time the child spent with either parent during this time was supervised.
In paragraph 9 of the family report, it was noted that in the Care and Protection Services (CPS) documents the Mother was deemed to be unsuitable carer for the child, for a variety of reasons. These included her in capacity to self regulate and to notifications had been made to the Department about the Mother’s capacity to care for the child. In their interactions with professionals at the time of the child’s injury, the Mother and her then partner declined to participate in the interviews and therefore were unable to provide an explanation for the injuries or respond to enquiries about what had occurred. The child was, at the time, assessed by a paediatrician as being delayed in his milestones, namely gross and fine motor skills, receptive and expressive language and conceptualisation of number, dimension and time. He was also identified to have a disorganised attachment pattern which raised questions about the caregiving environment prior to the incident in June 2012. The family report writer referred to an addendum to the paediatrician’s report that the maternal grandfather disclosed concerns he felt about the Mother’s attunement and responsiveness to the child and her propensity for violence in relationships and this was later followed up in an interview with CPS. The child was recommended to attend physiotherapy and other therapy, including referral to a therapist to work with his carer to address attachment issues. The recommendations also included the need for the child to be placed in a safe and predictable environment which would attend to his intervention needs and with carers who would be sufficiently consistent to secure his primary attachments. The paediatrician highlighted that any arrangements for the child to spend time with the non-primary caregiver minimally disrupt his care arrangements and that overnight time be delayed until the child was at least 5 years of age.
In paragraph 10, of the family report, the family report writer refers to CPS assessing the Father with the assistance of his Mother as a suitable placement for the child. The child was placed in the care of the Father on 6 September 2012. The Mother was given supervised time with the child in the presence of her family members.
The family report writer referred to the final consent parenting Orders in this Court of August 2013.
The family report writer (paragraph 16) stated that the Mother claimed that she last spent time with the child in February 2016. He continued to have telephone contact with the Mother.
In paragraph 19, the family report writer refers to the Mother claiming that during the parties’ relationship the parties became “a bit physical with each other from time to time”, in that they shoved and pushed each other.
In paragraph 23, the family report writer refers to a report from a consultant paediatrician dated 9 July 2012 in which, inter alia, the doctor assess the child as being a child at high risk and that a risk assessment was warranted. Concerns were raised by the doctor that the Mother had changed her views on how the injuries to the child had occurred.
In paragraph 28, the family report writer refers to the Mother’s diagnosis of ADHD when she was a child and being prescribed medication. The Mother claimed she grew out of the condition. The family report writer refers to the subpoenaed documents meeting with CPS and police on 27 June 2012 in which reference is made to the Mother having been sexually assaulted as a teenager and that there was a history of mood disorder and attempted suicide when the Mother was a teenager.
The family report writer, paragraph 30, refers to the child having been living with the Father and his stepmother with whom the Father has been in a relationship for over three years.
In paragraph 37, the family report writer refers to certain issues in dispute and issues identified during assessment including an issue as to whether the Mother poses a risk to the child, and the level of supervision that is needed when the child is in the Mother’s care.
In paragraph 48, the family report writer referred to the Mother’s tendency to minimise the seriousness of the issues that brought the child into the care of the Father and distanced herself from any culpability.
In paragraph 62, the family report writer referred to the interview with the maternal grandmother who was highly protective of the Mother.
In paragraph 70, and following the child was interviewed by the family report writer. In the interview session with the Mother and maternal grandmother he seemed to interact spontaneously with the Mother.
In paragraph 81, the family report writer refers to the Father, out of necessity, seeming to step up to the mark and initially with the assistance of his Mother and now with his new partner has provided a safe and secure environment for the child. The family report writer stated that there seem to be no concerns about the child being at risk of abuse and neglect in the Father’s environment.
In paragraph 82, the family report writer stated that it was concerning that the Mother is still in a significant level of denial about the extent to which she was inept in meeting the child’s needs and feels some injustice in the way the child was taken from her. She stated that there were repeated examples of where the Mother demonstrated limited insight into her parenting capacities and was in denial about her capacity to protect the child.
In paragraph 83, of the family report, the family report writer stated that the Mother also minimised the extent of how her emotional dysregulation impacts on her parenting capacity. The family report writer stated that the Mother seems to have done little work therapeutically to explore alternative ways to deal with her emotions or to address her parenting skills. She stated that it was unfortunate that her key support persons, namely the maternal grandmother and her partner, collude with her perception that she poses no risk to the child and that her ability to emotionally regulate is not an issue. The family report writer stated that the Mother would be well advised to demonstrate to the Court her willingness to address this by engagement with a therapist to explore alternative strategies for emotional expression and protective parenting strategies.
In paragraph 87, the family report writer stated that the Father is now the child’s primary caregiver and he is performing that role to a satisfactory standard.
In paragraph 88, the family report writer states that the observations made of the child’s interaction with the Mother when they were alone suggest that there is a significant relationship between them that needs to be fostered, albeit within a safe context.
In paragraph 99, the family report writer refers to the Mother’s parenting fragility and that she seems to have limited insight into the child’s needs. She states that the reinforcement the Mother receives from her Mother and partner are not helpful.
In paragraph 100, the family report writer states that the reintroduction of supervised time would allow the child’s relationship with the Mother to resume in a context that provides safety for the child but also safeguards the Mother from further allegations. The family report writer stated that in the longer term, it would be suggested that some element of supervision continue possibly from a mutually acceptable person and at present the only such persons seem to be the Mother’s Father or his partner.
In paragraph 105, the family report writer refers to the child already having been identified as displaying some behavioural issues and exposure to conflict will certainly be contra indicative if it continues. She states that in addition, dysregulation behaviour on the part of parents provides a poor role model to children about how to manage conflict.
In paragraph 106, the family report writer states that neither party seems to have taken steps to address their propensity for violence through any anger management or family violence courses and one of the risks is that they will become involved in other intimate relationships where violence features.
In relation to “the psychological state of both parents in so far as it relates to parenting issues”, the family report writer stated, in paragraph 108, that in relation to the Mother there is an ambiguous history, including possibly a mood condition, suicide attempts, drug use and ADHD. The family report writer stated that certainly for both parties there were some personality and temperament qualities which predispose them to poor emotional control.
In paragraph 111, the family report writer stated that the child has been assessed as having some difficulties with regulating his emotion.
In paragraph 112, the family report writer states that the child is a highly vulnerable child and his biological predisposition for any mental health concerns are likely to be triggered by environmental stressors.
DISCUSSION
Again, it is apparent that the final consent parenting Orders made on 14 May 2018 were significantly consistent with the recommendations of the family report writer, including the recommendation for the child’s time with the Mother to be supervised and that feasibly, by reason of the distance separating the parties, that it occur on a monthly basis. And further, and again, the family report writer initially referred to her various interviews with relevant persons including the parties (interviews on 22 September 2016), and documents read by her, including Affidavits, pleadings, and subpoenaed documents from the S Medical Clinic and R Hospital.
The Father has annexed the family report to his Affidavit. The Mother, in her material, makes no express criticism of the contents of the family report including the family report writer’s recommendations. Indeed, the Mother in her Affidavit filed 1 October 2021, in paragraphs 13, 14 and 15, refers to alleged counselling from August 2019 until December 2019, and psychologist sessions from February 2020 until August 2020, which would appear to seek to address certain commentary by the family report writer in her family report.
The family report writer had raised numerous issues in the family report in relation to the Mother including:
(a)The impact of the Mother’s emotional dysregulation on her parenting capacity for the child, and the Mother’s lack of insight in this regard;
(b)The Mother’s parenting fragility and her limited insight into the child’s needs;
(c)The Mother’s need to engage with a therapist to explore alternative strategies for emotional expression and protective parenting strategies;
(d)The Mother’s need to address her propensity for violence through anger management or family violence courses;
(e)The Mother’s psychological state in so far as it related to parenting issues; the family report writer had referred to the Mother’s ambiguous history, including possibly a mood condition, suicide attempts, drug use and ADHD. Further in this context, the family report writer had referred to the existence of some personality and temperament qualities which predisposed the Mother (and the Father) to poor emotional control.
The Court would regard the above issues raised by the family report writer, as important for the Mother to address in her evidence in support of her Application seeking permission to re-litigate parenting Orders. The Affidavit and another material of the Mother does not adequately address the above issues raised by the family report writer in relation to the Mother. Again, in paragraphs 13, 14 and 15 of the Mother’s Affidavit filed 1 October 2021, the Mother merely provides a self-serving and brief personal account of the contents of alleged counselling and psychology sessions that she has had in 2019 and 2020 without adducing any objective material from the health treatment providers as to, inter alia, the content and results of the Mother’s treatment. In any event, it is not apparent from the Mother’s own account of her alleged treatment that the above issues raised by the family report writer in relation to the Mother have been adequately addressed or at all in her alleged treatment, and again, the Mother has failed to adduce objective health professional evidence in these respects.
In this context, the contents of the one-page letter from Company U dated 5 October 2021 relating to the Mothers apparent work does not take the matter any further for the Mother, in the view of the Court.
It is important to emphasise, in relation to the absence of sufficient and appropriate evidence adduced by the Mother, as discussed above, that the child had suffered a very traumatic head injury whilst in the care of the Mother in 2012, and the family report writer described the child as a highly vulnerable child who had already displayed some behavioural issues.
The Court observes that there has already been 2 sets of parenting proceedings in this Court in relation to the child.
The Mother’s contended change in circumstances as referred to in her Affidavit filed 15 June 2021, including her contention that there would be benefits to the child in being able to spend block unsupervised time with the Mother during school holidays at her residence in Town J is, in the view of the Court, not a sufficiently significant change in circumstances that would justify the Mother being permitted to relitigate parenting Orders. Nor do her allegations of alleged non-compliance by the Father with previous Court Orders amount to a significantly sufficient change in circumstances, whilst noting in this regard that no contravention Application has been filed by the Mother seeking to address these alleged non-compliances. Other contended changes in circumstances by the Mother, including the extent of the return drive time between Town J and Suburb D once a month, and the child’s journey from the Region P to Suburb D once a month, are not considered sufficiently significant by the Court to justify the Mother being permitted to relitigate parenting Orders. In relation to the Mother’s contentions relating to travel difficulties in relation to the supervised visits, the Court also refers to the Father’s CCCS Session record recording certain visits between November 2017 and June 2021. In any event, these contended changes in circumstances do not sufficiently address the important issues raised in respect to the Mother by the family report writer, referred to above.
The Mother had contended that her evidence relating to the child’s alleged requests to spend increased time with the Mother and her parents represented a significant change in circumstances, and it was relevant that the child was now older than what he was back in May 2018. However, in the view of the Court, these alleged views of the child do not represent a sufficiently significant change in circumstances such as to justify the Mother being permitted to relitigate parenting Orders. The Mother’s own evidence, in her Affidavit filed 15 June 2021, indicates that the child enjoys spending the supervised time with the Mother, albeit apparently enjoyed around the Suburb D area. In any event, and again, this contended change in circumstances does not sufficiently address the important issues raised in respect to the Mother by the family report writer, referred to above.
The Court is not satisfied that the Mother has established a prima facie case of changed circumstances in accordance with the established legal authorities relating to the so-called rule in Rice and Asplund. On the material before the Court, there is not a likelihood of the consent final parenting Orders of 14 May 2018 being varied in a significant way as a result of a new hearing. It will not be in the best interests of the child for the Mother to be permitted to re-litigate parenting Orders, and she should not be so permitted, again, having regard to the material before the Court.
Accordingly, the Mother’s Initiating Application filed 15 June 2021 should be dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Dated: 1 February 2022
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