Benjamin & Benjamin
[2025] FedCFamC2F 106
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Benjamin & Benjamin [2025] FedCFamC2F 106
File number(s): BRC 11032 of 2023 Judgment of: JUDGE BERTONE Date of judgment: 5 February 2025 Catchwords: FAMILY LAW – Parenting - Where final parenting orders were made on 7 April 2022 for children to live in equal time arrangement and for parents to have joint decision making – Where Mother filed an application to reconsider parenting orders 18 months later – Where Father opposes change to orders – Where family report does not recommend a change to care arrangements under current parenting orders – Where section 65DAAA applies – where there has been no significant change in circumstances Legislation: Family Law Act 1975 (Cth), Part VII, ss60CC, 65DAAA, 69ZN, 69ZQ, 69ZX
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Chapter 7
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
McEnearney & McEnearney (1980) FLC 90-866
Radecki & Radecki [2024] FedCFamC1A 246
Rice & Asplund [1979] FamCA 80
Searson & Searson [2017] FamCAFC 119
SPS & PLS [2008] FamCAFC 16
Whisprun Pty Ltd & Dixon [2003] HCA.
Division: Division 2 Family Law Number of paragraphs: 122 Date of last submission/s: 29 October 2024 Date of hearing: 18 October 2024 Place: Brisbane Counsel for the Applicant: Mr P Baston Solicitor for the Applicant: Keane Legal Solicitor for the Respondent: Mr Benjamin on his own behalf ORDERS
BRC 11032 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BENJAMIN
Applicant
AND: MR BENJAMIN
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Mother’s Amended Initiating Application filed on 25 July 2024 is dismissed.
2.With respect to any order for costs sought by the Father:
(a)Within 21 days, notice must first be given to the Mother as to the quantum of costs sought;
(b)If agreement cannot be reached within 14 days after notice is given, then the Father shall file and serve written submissions, not exceeding five pages, addressing the issue of costs within 28 days of giving notice; and
(c)The Mother shall file and serve written submissions in reply, not exceeding five pages, within 14 days after service of the Father’s submissions.
3.The question of costs shall then be determined in Chambers on the basis of the parties’ written submissions with Judgment being delivered as soon as practicable thereafter.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BERTONE
These are parenting proceedings in respect of X, born in 2012, and Y, born in 2015.
X is now aged 12 and Y is now aged 9.
The Mother and Father were married in 2011, and separated on 13 June 2019.
Final Consent Orders were made on 7 April 2022 (“Final Orders”), which provided for:
(1)The parents to equally share parental responsibility;
(2)The children to live in an equal time arrangement;
(3)Time on special occasions; and
(4)The usual suite of authorities.
On 21 August 2023, the Mother commenced the current proceedings. She seeks an order for the discharge of the earlier Final Orders and to replace those with the following:
(1)The Mother to have sole decision making; and
(2)The children to live with her; and
(3)The children to spend time with the Father each alternate weekend from after school, or 3:00pm, Thursday to before school or 9:00am Tuesday.
The Mother therefore seeks a change in the allocation of parental responsibility, together with a reduction in the amount of time the children live with their Father.
The Father, in his Response, filed on 26 September 2023, seeks as his primary position, the dismissal of the Mother’s application on the basis that he says that there has been no significant change in circumstances.
The matter then came before me for a discrete hearing on 18 October 2024 in respect of the threshold issue arising from section 65DAAA of the Family Law Act (Cth).
MANNER IN WHICH HEARING PROCEEDED
Mr Baston, of Counsel, represented the Applicant Mother. He appeared via video link, and his Instructing Solicitor and the Mother were present in Court.
The Father was self-represented.
In addition to the filed material of each party, I heard oral submissions by each party. There was no cross-examination of witnesses.
As my Orders dated 16 August 2024 made clear, this was a hearing of the separate question as to whether there is a significant or material change in circumstances to warrant a revisiting of the current parenting orders pursuant to section 65DAAA of the Act.
The Mother, as the parent seeking to vary or discharge the Final Orders, has the burden of satisfying the Court that since the Final Orders were made there has been a significant change in circumstances.
Mr Baston submitted that the hearing before me was an interim hearing.[1] I explained that it was a discrete hearing as set out in my Orders dated 16 August 2024.
[1] Transcript of proceedings page 7, lines 30 – 47 to page 8, lines 1 – 7.
At the hearing before me, Mr Baston submitted that:
(1)The Family report writer, Ms B, ought to be cross-examined; and
(2)The principles set out in the now Rice & Asplund statutory provision do no operate to preclude a cross-examination fully contested hearing occurring on the determination of that issue.[2]
[2] Ibid page 7, lines 7-13.
Pursuant to section 69ZN, I am required to actively direct, control and manage the conduct of the proceedings.
I am empowered by section 69ZQ to decide which of the issues in the proceeding require full investigation and hearing and which may be disposed of summarily.
I am entitled under section 69ZX to decide whether I will allow, or refuse, cross-examination of a particular witness.
I am satisfied that in this matter it is appropriate to conduct a discrete hearing, pursuant to section 65DAAA of the Act, as to whether or not there has been a significant change in circumstances.
I am satisfied that I am required to take the evidence at its highest.[3]
[3] Searson & Searson [2017] FamCAFC 119; SPS & PLS [2008] FamCAFC 16.
THE MATERIAL READ AND CONSIDERED:
I have read and considered the material relied upon by each party, and exhibits tendered at the hearing before me, which includes:
(1)Mother’s Amended Application for Final Orders filed on 25 July 2024;
(2)Mother's Affidavit filed 4 October 2024;
(3)Mother’s Affidavit filed 21 August 2023;
(4)Mother’s Case Outline filed 11 October 2024;
(5)Father’s Response to Application for Final Orders filed 26 September 2023;
(6)Father’s Affidavit filed 4 October 2024;
(7)Father’s Affidavit filed 26 September 2024;
(8)Father’s Case Outline filed 11 October 2024;
(9)Family Report of Ms B annexed to her Affidavit filed 4 October 2024;
(10)Mother’s tender bundle handed up 18 October 2024;
(11)Transcript of Proceedings on 15 January 2024 before his Honour Judge Middleton;
(12)Final Parenting Orders dated 7 April 2022 (Exhibit 1);
(13)Father’s written submissions filed 25 October 2024; and
(14)Mother’s written submissions filed 29 October 2024.
I have considered the evidence and submissions made on behalf of the parties. I am not required to mention every fact or argument put forward by a party, and I do not propose to address every submission made.[4]
[4] Whisprun Pty Ltd & Dixon [2003] HCA 45; Baghti & Baghti and Ors [2015] FamCAFC 71.
Where in the Reasons that follow I make statements of fact, these should be regarded as findings of fact.
The Mother seeks to discharge the Final Orders. To succeed, pursuant to section 65DAAA of the Act she must show there has been a significant change in circumstances.
The Father’s evidence is that the care arrangements are working well. He maintains there has been no significant change in circumstances since the Final Orders were made, and therefore asks me to dismiss the Mother’s Application.
ISSUES
Therefore, the issues for my determination are:
(1)Has there been a significant change in circumstances; and
(2)Taking into account whether there has been a significant change in circumstances since the final parenting orders were made, is it in the best interests of the children for the Final Orders to be reconsidered.
LEGISLATIVE PROVISIONS
Section 65DAAA came into effect on 6 May 2024 as the codification of the rule known as the rule in Rice and Asplund.[5]
[5] Rice & Asplund [1979] FamCA 80.
Section 65DAAA provides:
Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
In the matter of Radecki and Radecki,[6] the Full Court considered the recently enacted s65DAAA and the principles espoused in Rice and Asplund.
[6] Radecki & Radecki [2024] FedCFamC1A 246.
The Full Court concluded that s65DAAA was a codification of the well-known rule in Rice and Asplund, that there needs to be a significant change in circumstances before an existing parenting order is to be reconsidered.
The Full Court said this in Radecki:[7]
“The Second Reading Speech to the Amendment Bill on 13 June 2023 also referred to the purpose of the amendments to the Act as follows:
…codifies existing case law about reconsideration of parenting orders, making it clear that it must be in the best interests of a child, and a significant change in circumstances must have occurred, for an existing parenting order to be reconsidered.
“The wording of the Second Reading Speech, in particular “making it clear…a significant change in circumstances must have occurred”, is similarly at odds with a literal interpretation of s65DAAA adopted in Rasheem, Melounis and Whitehill & Talaska. The comments make it abundantly clear, a significant change in circumstances is a mandatory precursor for a parenting order to be reconsidered. Like the Explanatory Memorandum, the Second Reading Speech does not refer to diminution or displacement of the Court’s obligation to make a finding of a significant change in circumstances and replace it with a consideration of whether or not change has occurred.”
[7] Ibid at paragraphs 75 & 76.
The Full Court has made it clear that the application of section 65DAAA is such that if there is no finding of a significant change in circumstances, then that is the end of the matter.[8]
[8] Radecki & Radecki supra paragraph 79.
HAS THERE BEEN A SIGNIFICANT CHANGE IN CIRCUMSTANCES
It was common ground at the hearing before me that the parents agreed to the Final Orders after a mediation, and without any judicial determination.
At the hearing before me, Mr Baston submitted on behalf of the Mother what she considered to be a change in circumstances as follows:
(1)that at the time the Final Orders were made, the Father was living with a partner and living at a particular residence. Since the Final Orders was made, he has had new partners and has moved residence;
(2)the Father has to be away for work, and this means that he requires his extended family to help look after the children when they are scheduled to be in his care;
(3)there are issues relating to X’s mental health and his difficulties at school; and
(4)there are issues relating to Y’s mental health and his difficulties at school.[9]
[9] Transcript of proceedings, page 3, lines 16-43.
Father’s partner and living circumstances
In his submissions, Mr Benjamin confirmed that of the relationships about which Mr Baston made submissions, the children have only met two of those long-term partners.
In relation to his partners, there is no reference in Final Orders to a particular partner of the Father who was named either as a party to the proceedings, or named as the Father’s agent.
No doubt there is change for children whenever a parent enters into, or ends, a relationship.
But there is no cogent evidence before me that the children have been impacted in any particular way by their Father’s new (or past) relationships.
As to the Father’s change of residence, Mr Benjamin agreed that he sold his house at Suburb C and has moved to a rental property in Suburb D, where he has signed a 12 month lease.
The Mother does not point me to any evidence that requires the Father to remain living in Suburb C. The terms of the Final Orders do not impose any restriction on the Father being able to move to another suburb in the Brisbane area.
The Mother deposes to the children being upset in September 2024 that the Father had sold his home and they (the children) did not know where they would be living.[10]
[10] Mother’s Affidavit filed 4 October 2024 paragraph 34.
This conversation occurred in September 2024, which was more than one year after the Mother filed her recent application. This means that this conversation did not form part of the changed circumstances that prompted the Mother to file her application in August 2023.
The Mother asserts that Y made a comment to this teacher in May 2022, which the teacher then conveyed to the Mother about his living arrangements.
I am not satisfied that I have cogent evidence upon which I can place any weight as to the impact of the change of residence on the children.[11]
[11] The assertion made by Mother in her Affidavit filed 21 August 2023 at paragraph 47 is hearsay upon hearsay – Y told the teacher, the teacher told the Mother. There seems to be no reference to this in the tendered subpoena records.
Therefore, I am not satisfied that either the Father’s change of residence or embarking on a new romantic relationship, are significant changes in circumstances for the children.
Father’s work
The Mother asserts that the Father’s obligation to travel for work, requires the extended paternal family to care for the children when they are in their Father’s care.[12]
[12] Mother’s Affidavit filed 21 August 2023 paragraphs 46, 48 - 50 .
The Father submitted at the hearing before me that he does have to do some travel for work but since he has worked for the same company for 13 years [13] this is not new.
[13] Transcript of proceedings page 14 lines 25 – 34.
I am satisfied that the Father’s work commitments were well established, and well known to the Mother at the time the parents agreed to the Final Orders.
I am not satisfied that the Father’s work travel is a significant change in circumstances for the children.
Behaviour of the children
The Mother says she is concerned for the children’s mental health and for their behaviour.
In addition, she gives evidence of some reports by the children’s teachers about their dysregulated behaviour at school.
The Father acknowledges the communications from the school but he says that the Mother did not inform of him of the allegations she makes about X’s mental health. He only became aware of these after reading her Affidavit filed 21 August 2023.
The Mother says the children are afraid of the Father and that they tell her that they do not want to go to the Father’s household.
The Father says that he has not had the experience of the children telling him that they wish to spend less time in his care. He says that both children expressed to him that they love him and enjoy spending time together.
X
The Mother asserts that X made some concerning comments in late 2022. X’s teachers have reported to the parents some concerns they have about X’s behaviour at school.
The Mother took X to the general practitioner, and with the Father’s consent, X started seeing a psychologist, Ms E, at F Centre.
During one of the sessions with X, it seems that his psychologist formed the view that she should make a notification to the Department of Families, Seniors, Disability Services and Child Safety (“Department of Child Safety”), which she did do in July 2023.
The Department of Child Safety concluded that there was insufficient information to suggest that X had experienced significant harm and it was recorded as a Child Concern Report.
X was attending regularly for counselling at F Centre, until about February 2024.
In the hearing before me, the Father told me that X has not seen that psychologist since February 2024.
Mr Baston confirmed this, on instructions, but added that X’s non-attendance was due to the psychologist requiring the Father’s consent.[14] None of this was deposed to by the Mother.
[14] Transcript of proceedings, page 21, line 40.
X was already seeing his psychologist with the consent of his parents. Therefore, I do not accept that suddenly, in February 2024, the psychologist needed a form signed by the Father without which X could no longer attend his psychologist.
The Mother’s evidence[15] is that in February 2024, she was contacted by X’s school and informed that he was walking away from his teacher and gave him the middle finger which could have resulted in X being suspended from school.
[15] Mother’s Affidavit filed 4 October 2024, paragraph 6
The Mother also asserts that X has extreme reactions to minor issues and gave an example of such an occasion in October 2024.[16]
[16] Ibid, paragraph 9
Ms B recommended that X should continue to see his psychologist. I say more about the Family Report later in these Reasons.
Where the Mother deposes to her concerns about X’s mental health,
Given the Mother’s asserted concerns about X’s mental health, I would expect the Mother to prioritize X's attendance with this psychologist. Her failure to take him to his psychologist since February 2024 is inconsistent with those concerns.
Whilst it does seem that X is struggling with his behaviour, I am satisfied that both parents have agreed for X to accesses appropriate mental health support.
Y
The Mother asserts that Y is suffering from separation anxiety and issues with school.[17] There is no evidence of a diagnosis of separation anxiety.
[17] Mother’s Affidavit filed 21 August 2023 at paragraph 22.
The Mother told Ms B that Y is having tantrums and screaming and throwing things, she says, every Tuesday. [18]
[18] Family Report of Ms B dated 10 April 2024 at paragraph 38.
This is not deposed to in either of the Mother’s two Affidavits before me.
The Mother asserts that the Father delayed agreeing to Y seeing a psychologist. Whether there was delay, it seems that the parents have now agreed that Y should attend for counselling with Dr G at H Centre.
Y also attends occupational therapy and the Mother conveyed this to the school on 28 July 2023.
Y’s school records in May and July of 2023, which were tendered and were considered by Ms B, note that Y has some focus issues and difficulties with writing.
The school records tendered for Y for August 2024 were after the publication of the family report. These notes repeat the Mother’s assertions about Y’s emotional regulation.
The parents have agreed for Y to engage with Dr G and I am satisfied that is an appropriate course of action.
Family Report
The Mother sought the engagement of an expert to prepare a Family Report. The matter came before his Honour Judge Middleton on 15 January 2024.
At that hearing, Mr Baston represented the Mother. The Father was legally represented at that time and his Solicitor appeared for the Father.
At the hearing, after some submissions were made, the parents agreed to the engagement of an expert for the preparation of a Family Report.
The Father wanted the opportunity to put forward a panel of three experts[19], but ultimately Orders were made on 15 January 2024 that required the Applicant Mother to provide a panel of three Family Report Writers to the Father by 17 January 2024, from which panel the Father was to choose within seven days.
[19] Transcript of proceedings on 15 January 2024, page 8 lines 11 – 13.
It was common ground at the hearing before me that Ms B, who ultimately prepared the Family Report in this matter, was one of the three persons proffered by the Mother in that panel of three experts put to the Father.
On 25 January 2024, the parents, through their legal representatives (being Keane Legal for the Mother and J Lawyers for the Father), signed a joint letter of engagement to Ms B.
Ms B conducted interviews with the parents and children on 26 February 2024 and she had regard to the parents’ Court documents that had been filed at that time, in addition to subpoenaed records from Queensland Education, Child Safety Queensland and F Centre (X’s psychologist).
It is clear from the Family Report, that Ms B read the documents provided to her. In particular, she read the document from F Centre, not dated, provided to the Department of Child Safety in July 2023.[20]
[20] Family Report of Ms B dated 10 April 2024, page 10, paragraph 40.
In respect of X’s views, Ms B reports that X told her:
(1)that if he were worried or scared, he could equally speak to his parents about how he was feeling;
(2)he sees his counsellor, Ms E, once a month and that it is good to speak to her; and
(3)in terms of his living arrangements, he said that if it was his choice he would keep it as week about and changeover on a Monday because that seems normal to him.[21]
[21] Ibid, page 17, paragraph 69-70.
In respect of Y’s views and wishes, Ms B reports that:
(1)he said that changing household every week is kind of sad because he gets used to and likes where he is and then he needs to changeover;
(2)if it were Y’s choice where he lived, he would live with his parents for two weeks at a time because changing over each week is too much;
(3)However, Y said he wants to continue to spend equal time with both parents;
(4)Y said his parents used to barely speak to each other but they are getting better at talking to each other; and
(5)when he is feeling sad or scared, he will speak to whatever parent he is living with.[22]
[22] Ibid pages 19-20, paragraph 82-85.
In her evaluation, Ms B identified that for X’s emotional needs to be met he needs to continue to have support from his psychologist.[23]
[23] Family Report of Ms B dated 10 April 2024 page 24, paragraph 101.
Ms B also stated that the children are not at risk of emotional harm in the Father’s household and did not present as fearful of their Father.
The children spoke to Ms B about enjoying time with their Father.[24]
[24] Ibid page 25, paragraph 104.
Ms B observed that X saying that he wants to “run away from school” are not necessarily about his Father. I accept her observation.
Ms B’s recommendations were for the children to live with each parent on a shared care basis as week-about with changeover to occur on a Monday. She also included a recommendation that an effort should be made to ensure that both parents are informed about any concerns raised about the children’s wellbeing.
Ms B recommended that X continue to have appointments with F Centre and for the parents to engage with co-parenting counselling.
Ms B also recommended that the Father complete the parenting program that he was currently attending.
Mother’s challenge to the Family Report
In respect of Ms B’s recommendation not to alter the existing care arrangements, Mr Baston submitted that Ms B, being a social worker, “hasn’t addressed fully the issues that are at large in the psychologist’s engagement” with the children. Mr Baston submits that the Mother ought to be able to issue further subpoena, put that material to Ms B and then ask her specific questions. [25]
[25] Transcript of proceedings page 4 lines 35 – 47, page 5 lines 1 – 2.
Insofar as the submission criticises Ms B’s qualifications, I reject that submission. This was an expert put forward by the Mother in her panel of three experts, who were deemed to be sufficiently qualified to prepare a Family Report. This was conceded by Mr Baston during the hearing.
In respect of the Mother being able to issue further subpoena, I note that the Mother has already issued a subpoena to the Department of Education (twice), the Department of Child Safety and F Centre.
The Mother filed her application in August 2023, only 18 months after the Final Orders were made. She has had more than 12 months to prepare her case. I am satisfied the Mother has had ample opportunity to gather evidence and ensure that all relevant evidence has been provided to the Court.
As to the Mother being able to ask specific questions of Ms B, these could have been done by the Mother after the publication of the Family Report pursuant to Rule 7.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the “Rules”).
A party may ask questions of the single expert within 21 days of that party receiving that single expert’s report.
Mr Baston conceded that that process had not been undertaken by, or on behalf of, the Mother.
Given the Mother has been legally represented throughout these proceedings, I am not acceding to the Mother’s request for liberty to issue further subpoenas and to ask specific questions of the expert.
The Mother has had ample opportunity to ask those specific questions. She did not do so.
Mr Baston submitted that I ought not to accept Ms B’s findings, conclusions and recommendations “in simpliciter”, and that there ought to be further evidence adduced in cross-examination.[26]
[26] Transcript of proceedings page 26, lines 32-37.
I understand his submission to be that I ought not to dismiss the Mother’s case at this discrete hearing, but rather allow the Mother’s application to proceed in the usual way to a fully defended hearing.
In circumstances where it was the Mother herself who sought the engagement of Ms B to prepare a Family Report, this submission falls rather flat.
The Mother got the Family Report she asked for, prepared by one of her experts. Now having read the Family Report, it seems to me that the Mother seeks to challenge it because Ms B’s observations and recommendations do not support the Mother’s case.
It is true that the Family Report is but one piece of evidence. But at this discrete hearing I must take the evidence as it is at its highest.
Therefore, I am satisfied that:
(1)Ms B is an appropriately qualified expert, who was jointly engaged by the parents;
(2)The Mother took the opportunity to issue multiple subpoenas in these proceedings;
(3)The Mother had direct input, via her Solicitors, as to what documents and evidence would be provided to Ms B for her consideration;
(4)Ms B read and considered the documentation placed before her and met with both parents and children;
(5)Ms B made observations and recommendations based on her interviews with the parents and children and the documents she read;
(6)Ms B’s observations of the children, and the views expressed by them, do not accord with the Mother’s assertions that the children are fearful of their Father, and do not wish to see him; and
(7)The Mother had the opportunity provided under the Rules to ask Ms B specific questions after the production of the Family Report, which she failed to do.
CONCLUSION
Change is a part of life. The Court would soon be overwhelmed with many more applications to reconsider Final Orders if the only requirement was to show any change at all.
Not every change to a parent’s circumstances, which may then have an impact on the child’s circumstances, rises to the level of a significant change in circumstances.
As children grow and reach adolescence, issues may emerge that require particular attention either from their school or from mental health services, and most importantly, from their parents.
X has previously accessed psychological support, and the parents have enabled that to occur. The Final Orders do not stand in the way of his continuing to access psychological support.
Y is also accessing support from an Occupational Therapist and a psychologist, and the parents agree with him continuing to have that access. Again, the current Final Orders do not stand in the way to prevent his access.
Good parents, such as these, will take appropriate action to liaise with the children’s school and with medical experts to ensure the children have support.
I am satisfied that the children had the opportunity to express their views to an independent person, being Ms B, in the Family Report process.
X and Y do not express fear of their Father, nor do they wish to change the current care arrangements.
Not every issue raised by a parent rises to the level requiring the Court’s intervention.
It is anathema to the best interests of children for there to be a perennial football match between parents.[27]
[27] McEnearney & McEnearney (1980) FLC 90-866.
I am not satisfied that there has been a significant change in circumstances. I am not satisfied that it is in the children’s best interests for the Final Orders to be reconsidered.
Accordingly, I dismiss the Mother’s Application.
I will make an order that if the Father wishes to be heard in respect of a costs order, then he is to give notice to the Mother’s Solicitors first, and then if agreement cannot be reached, submissions can be filed.
I will then make a decision about the costs issue in chambers.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bertone. Associate:
Dated: 5 February 2025
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