Berry & Norman (No 2)
[2024] FedCFamC2F 1404
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Berry & Norman (No 2) [2024] FedCFamC2F 1404
File number: SYC 2972 of 2020 Judgment of: JUDGE LIOUMIS Date of judgment: 25 October 2024 Catchwords: FAMILY LAW – CHILDREN – Consideration of s 65DAAA of the Family Law Act 1975 (Cth) – Where final parenting orders were made in May and December 2022 – Where the Applicant father seeks to reopen the proceedings – Where the Respondent mother seeks to dismiss the father’s application – Where the parental conflict has impacted the children’s access to therapeutic and medical assistance – Where the parents have demonstrated no joint decision-making capacity in respect of the children as required by the final parenting orders – Where the Court is satisfied that there has been a significant change in circumstances since the final parenting orders were made – Where the Court is satisfied that it is in the best interests of the children to reconsider the final parenting orders Legislation: Family Law Act 1975 (Cth) s 65DAAA Cases cited: Albert & Plowman [2022] FedCFamC1F 243
Carlyon & Graham [2024] FedCFamC1F 443
Berry & Norman [2022] FedCFamC2F 1776
Whitehill & Talaska [2024] FedCFamC2F 768
Division: Division 2 Family Law Number of paragraphs: 114 Date of hearing: 8 July 2024 Place: Sydney Counsel for the Applicant: Mr Sansom SC Solicitor for the Applicant: ATW Family Law Counsel for the Respondent: Ms Lane of Counsel Solicitor for the Respondent: Sexton Family Law ORDERS
SYC 2972 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BERRY
Applicant
AND: MS NORMAN
Respondent
ORDER MADE BY:
JUDGE LIOUMIS
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.Pursuant to section 65DAAA of the Family Law Act 1975 (Cth), the Court is satisfied that, in all of the circumstances, there has been a significant change of circumstances since the final parenting Orders were made and that it is in the best interests of the children for the final parenting Orders to be reconsidered.
2.Order 1 of the Response to Initiating Application filed by the Mother on 23 October 2023 be dismissed.
3.The Mother file an amended Response within 21 days of the date of these Orders.
4.The matter be listed before Judicial Registrar Mooney for directions on 19 November 2024 at 11.30 am via Microsoft Teams.
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
INTRODUCTION
On 25 September 2023, the Applicant father (“the father”) filed an Initiating Application seeking to discharge certain final parenting Orders made on 18 May 2022 and 22 December 2022 in relation to the children X born in 2015 and Y born in 2017 (collectively “the children”).
The Initiating Application also seeks various interim and final parenting orders, including the following:
(a)That the father be granted sole parental responsibility for medical decisions in relation to the children;
(b)That the children live with the father; and
(c)That the children spend time with the mother five nights a fortnight during the school term, and half of school holiday periods.
The father’s application is opposed by the Respondent mother (“the mother”) who seeks its dismissal.
The orders the father seeks attract the application of the provisions of s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”). This judgment relates to this threshold issue, namely whether the Court should permit reconsideration of the final parenting orders pursuant to section 65DAAA of the Act.
EVIDENCE
The father relied on the following documents:
(a)Initiating Application filed 25 September 2023;
(b)Affidavit of Mr Berry filed 20 June 2024; and
(c)Written Submissions filed by the father on 1 July 2024.
The mother relied on the following documents:
(a)Response to Final Orders filed 23 October 2023;
(b)Affidavit of Ms Norman filed 17 June 2024; and
(c)Written Submissions filed by the mother on 1 July 2024.
In addition, the parties agreed that the Reasons for Judgment by Judge Boyle (as she was then known) dated 22 December 2022 be read: Berry & Norman [2022] FedCFamC2F 1776 (“Berry & Norman [2022]”).
I have read and considered all evidence tendered and marked as exhibits.
Whilst I have read all of the documents relied on by the parties, it is not necessary that I refer to every matter alluded to or referenced. The matter proceeded on the papers and with oral submissions. No application was made to cross-examine.
BACKGROUND
2022 Final Hearing and Judgment
On 22 December 2022 following a contested hearing, Her Honour Judge Boyle (as she was then known) delivered judgment: Berry & Norman [2022]. Orders were made as follows:
(a)That the parties hold equal shared parental responsibility for the children;
(b)That the children spend increasing time with the father during school terms such that from Term 4 2023, the children spend time with the father:
(i)In week one, from after school on Wednesday until the start of school on Friday; and
(ii)In week two, from after school on Friday to the start of school on Monday;
(c)That the children spend time with the father during school holidays; and
(d)That the parties do all acts and things and sign all documents necessary to obtain a referral for a counsellor / psychologist for the children to attend upon for the purpose of receiving psychological support.
On 18 May 2022, final Orders were also made by consent that unless otherwise agreed between the parents in writing:
(a)X continue with occupational therapy;
(b)Both children continue to attend upon a dietician; and
(c)Both children continue to attend upon paediatrician Dr B, with the parents to follow all recommendations and directions from Dr B. The parties were to seek an opinion from Dr B as to whether he recommended X be assessed for ADHD.
The Orders made by the trial judge arose in a context of allegations that the parties’ failure to communicate effectively impeded decision-making for the children, and that the father had perpetrated family violence. The trial judge was tasked with determining whether the parties’ ability to communicate and cooperate could sustain orders for equal time, and what arrangements for time and parental responsibility would be in the best interests of the children.
At the final hearing, the mother sought orders for sole parental responsibility while the father sought orders for equal shared parental responsibility. The mother sought orders for the father to spend time with the children on Wednesday afternoon and alternate weekends, and the father sought orders for equal time.
In Berry & Norman [2022] at [41] – [45], the trial judge recorded the following in relation to parental responsibility:
[41] The parents find it difficult to co-operatively make appointments for speech therapy, dieticians, and other health professionals involved. The needs of the child appear to get lost in communication between the parents.
[42] In my view their different views need to be considered by anyone treating the children. This is because a more detailed picture of the children’s functioning emerges when both perspectives are considered. I accept that from what I have seen in the evidence, particularly the parts of the ICL’s tender bundle most recently admitted, working with both parents is difficult for any health professional. I accept the parents are under additional stress as a consequence of litigation. I also accept that the mother has been bearing the costs for the children in terms of their day to day needs, as well as for therapeutic and other assistance. This places her under considerable stress.
[43] An order for sole parental responsibility to [Ms Norman] has the real risk of resulting in [Mr Berry] being excluded from medical and other appointments for the children. Despite their poor capacity to communicate, they both need to be involved in that process. I accept that the children will benefit from the input of both parents in long term decisions for them.
[44] I accept that [Ms Norman] is enormously frustrated by what she perceives as badgering emails sent by [Mr Berry] about the children. She works full time, has the financial responsibility for the children, and is their primary carer. [Mr Berry] is completing [further studies] as part of a graduate program, which shortens the usual time to complete [a] degree. I accept that [Mr Berry] will make financial contributions once he is in full time employment.
[45] The boys need both their parents to co-operate so that the best decisions for their health and education can be made for them. The use of a technology for communication may provide some assistance to the parents. The relief of pressure by the conclusion of litigation should also assist. I find that it is in the children’s best interests’ [sic] for there to be an order for equal shared parental responsibility.
In relation to the time the children spend with the father, Judge Boyle (as she was then known) said at [77]:
[77] Equal time arrangements require a high degree of co-operation. It provides more opportunity for things like uniforms, school work and equipment, favourite clothing and favourite toys to end up in a different house to the child. Children, particularly of the age of these children, need their parents to resolve these matters for them. To do so, effective communication is required, and a preparedness to make arrangements outside of orders. These parents have been unsuccessful at doing so to date. Although there has been some improvement this year as referred to, I do not regard it as sufficient to sustain an equal time arrangement.
The trial judge also found that the father had perpetrated family violence against the mother. The impact of that family violence, particularly in relation to the time the children should spend with the father, was found to be as follows:
[58] The court is required to consider whether it is reasonably practicable for the child to spend equal time, or substantial and significant time, with each of the parents. Part of that consideration is the parent’s current and future capacity to implement such an arrangement, and similarly their capacity to communicate to resolve difficulties that may arise. In this case past family violence has had an impact on the parents’ capacity to communicate, and resolve issues. There is little trust or co-operation between them.
(citations omitted)
Judge Boyle (as she was then known) found that the parental conflict included the way the parties approached working with professionals on behalf of the children and that:
[71] The parents have a significant problem with their communication. As is clear from the above examples they do not trust each other. I accept that [Mr Berry] has behaved very poorly towards the mother, both during the marriage and following separation. This has left [Ms Norman] distrustful and suspicious of [Mr Berry]’s motives. It is hoped that this will repair over time, particularly with the conclusion of litigation.
Since the December 2022 Judgment
In January 2023, the child Y experienced difficulties at school relating to toileting. The parties do not agree as to the cause of the issue and do not agree as to how the issue was resolved.
In January 2023, there was a disagreement between the parties as to which paediatrician Y would attend.
On 16 January 2023, the parents attended on dietician Ms C. The parties do not agree as to whether there is a current need for a dietician or as to the frequency, dates or who will attend these appointments on an ongoing basis.
On 19 January 2023, the mother advised the father that she had taken Y to a General Practitioner in relation to the toileting issue and that no further action was required. The father says the mother made this appointment without his knowledge or consent.
In January 2023, the school advised the parents of the continued problems in relation to Y’s toileting. The parties reached no agreement as to how to proceed.
In March 2023, the mother communicated with Y’s school that she did not accept that there was a need for Y to attend a reading program. The father disagreed.
In April 2023, the parties disagreed as to how appointments for X to attend a speech therapist would be managed.
In May 2023, the school advised the parents that Y was experiencing behavioural issues including swearing, abusing staff and students, refusing to follow instructions and refusing to participate in class. There was a significant incident in May 2023 where Y threw items, broke furniture and ripped up work while in the library.
In May 2023, the school wrote to the parties and recommended an assessment by a school counsellor. The father alleges that the mother delayed in completing the forms.
In June 2023, the parties disagreed as to the cause of the difficulties Y was experiencing. The father suggested an appointment with consultant paediatrician Dr L. The father says that the mother’s response was that “the school thinks it’s most likely trauma” and that she would not consent to any appointment without her being present.[1]
[1] Exhibit F8.
In mid-2023, Y was suspended from school for striking a teacher. The school met with both parents to determine a return to school program. The father says that the school provided the names of five psychologists to undertake the assessment and that the mother made an appointment a few weeks later but did not communicate any details of that appointment, including the name of the specialist or place, to the father.
The parties disagreed as to who would collect Y from his partial school days. The mother appears to have taken objection to the father’s partner collecting the child.
The parties continued to disagree as to the approach to be taken in relation to therapeutic intervention. It appears that Y commenced seeing a counsellor but that the details of those appointments were not communicated to the father.
In mid-2023, Y received a second suspension. The parties could not reach an agreed position as to an earlier date for Y to see a psychologist. The father complains that the mother did not advise him of appointments. The mother says she has not taken Y to any appointment with any psychologist, paediatrician or general practitioner without the father’s knowledge or consent.
On 21 September 2023, the parties received the test results from psychologist Ms E. There is no agreement between the parties as to whether these results are accurate. That report summarises the results for Y as:[2]
(a)“Low range cognitive skills,” noting this should be interpreted with some caution due to variability across scores.
(b)“ADHD […].”
(c)“Generalised Anxiety Disorder” and “Separation Anxiety Disorder.”
(d)“Major Depressive Episode.”
(e)“Autism Spectrum Disorder” noted by the father’s responses and reports from school, and observed during testing.
[2] Exhibit F11.
Ms E noted at several points, including responses to Autism Spectrum Rating Scales (“ASRS”) and Conners Comprehensive Behaviour Rating Scales (“CBRS”) results, that there was a significant difference in each parent’s reports and some variance between the parents’ and the teachers’ reports.
In late 2023, the parties were advised that the school was not prepared to continue to offer Y a position. There was no agreement between the parties as to how to proceed with his enrolment.
On 25 September 2023, the father filed an Initiating Application and an affidavit in support.
On 6 October 2023, Y attended an appointment with Ms F, a speech pathologist. The mother’s evidence is that she had asked the father to support the appointment and assessment. The father complains that he was not advised of the appointment. The mother says that she had provided him with the information.
In late 2023, Y commenced at G School.
On 23 October 2023, the mother filed a Response to Final Orders and an affidavit in support.
On 24 October 2023, Orders were made by a Judicial Registrar listing the matter for a Compliance & Readiness Hearing in January 2024.
On 25 October 2023, the mother received a report from Ms F and forwarded it to the father.
X continues to be enrolled at H School. The parties do not agree as to whether X requires additional support and do not agree as to whether NDIS should be accessed to provide that support.
In October 2023, the parties were notified that J Psychology could no longer provide services for Y. The parties did not agree on an alternate therapist until early 2024. Y commenced seeing Mr K and the parties do not agree as to whether this engagement needs to continue or whether it should be suspended for a time.
On 21 November 2023, X attended on Dr L. The father says that the parties were given a verbal diagnosis of ASD. The father says that there was a significant difference between the questionnaires submitted by each parent.
In February 2024, the mother says that Mr K said that he would be happy to keep Y on the books on an as needed basis and that this was confirmed by Mr K in an email on 1 March 2024.
In February 2024, Y received a Positive Behaviour for Learning Award.
On 1 March 2024, the matter was listed for a threshold hearing on 5 April 2024 at the Melbourne Registry.
In March 2024, the mother met with X’s Diverse Learning Teacher and discussed his progress and Individual Adjustment Plan. The mother was advised that X had had a positive start to the year.
In March 2024, X’s Diverse Learning Teacher sent an email to the mother indicating that some of the adjustments in X’s Individual Adjustment Plan were no longer being used.
X continues with occupational therapy at D Therapy each fortnight.
In March 2024, the mother says she spoke with the principal at Y’s school and received positive information about Y’s behaviour and resilience. The mother was told that Y is an enthusiastic learner and has been responding well to the Individual Education Plan.
In April 2024, Y received a Merit Award for contributing to discussions in the library.
On the same date, the threshold hearing was adjourned to 8 July 2024 for the purpose of extending paediatrician Dr L’s compliance with a subpoena issued by the father.
On 10 April 2024, Dr L provided a report which was within the documents produced under subpoena in relation to X. On page 4 of the report, Dr L wrote:[3]
I have significant concerns about the current wellbeing of Master [X], whatever his diagnoses may be. He clearly has a significant neurodevelopmental disorder, based on all investigations performed. He clearly is in need of significant intervention, which is not possible I believe financially for anyone, unless he is referred to the NDIS, which is my recommendation, on the basis of this current diagnoses. I believe he is eligible and will be accepted to NDIS provided the NDIS contact is able to describe concerns expressed by the school and family. To maximise his funding, I would suggest up to date functional assessment performed by school and both parents. Further medical interventions are required, firstly treatment and then if necessary, referral to [specialist] if there is evidence of [a medical condition]. Treatment of his […] asthma and dietary modifications are required and I would request for NDIS to consider an Exercise Physiologist.
In the current parenting orders situation, I believe [X] would require a support worker to assist [Ms Norman] in providing the appropriate interventions required, as currently [X] appears to be non compliant with any of her attempts at intervening such as dietary restriction, restriction of technology, exercise and administration of medications.
[3] Exhibit F4.
Dr L said that she was concerned about X’s emotional regulation at school and impaired engagement with his peers. It was Dr L’s opinion that the mother was having difficulty in accepting advice and implementing treatment when the basis for the treatment differed from her viewpoint.
X was diagnosed by Dr L as having:[4]
[4] Exhibit F4, page 4.
-Autism spectrum disorder […] associated with average cognitive ability level with low processing speed.
-Higher order language disorder and impairment of pragmatic language skills. Inability to sustain reciprocal conversations.
-ADHD […], severe.
-Oppositional defiant disorder.
-Specific learning disorder impacting on reading comprehension.
-Severe emotional dysregulation, associated with aggression, physical and verbal at school.
-Significant anxiety issues and
-Low self esteem.
-[Allergies].
-[…] asthma.
-Probable sleep [condition] or at least disturbed sleep.
-Medication non compliancet [sic].
-Increased higher than desired weight […].
The mother says that the father told Dr L that X had been diagnosed with ADHD and Dr L accepted that a diagnosis had been made. That is not apparent in the letter Dr L forwarded to the parties outlining her methodology in reaching her diagnosis.
It is the mother’s case that she cannot afford speech therapy for X at the present time and that she is meeting the costs of the children’s various therapies.
In mid-2024, Y received a Merit Award for good independent reading.
In May 2024, the mother says she had a meeting with Y’s teacher and was told that while he is working below grade average, he is enthusiastic and willing to learn.
On 13 June 2024, the mother organised for the children to see a dentist. The appointment for Y was made on the basis that he was experiencing pain. The father seems to have objected to the appointment being made without regard to his availability.
On 8 July 2024, the threshold hearing was listed before me at the Sydney Registry. Both parties were in attendance and were represented by counsel.
SUBMISSIONS OF THE FATHER
The father’s senior counsel submitted that pursuant to the current Orders, the parents have to work as a committee of two in implementing arrangements for two children with complex needs. It was submitted that despite the completion of the hearing and the Orders made, there has been no demonstrated capacity of the parents to work together. The father submitted that the trial judge’s decision contained expressions of hope that the parties will be able to better focus on the children and that the parental conflict and distrust will repair over time. The father submitted that there has been no change in the parties’ capacity to communicate and cooperate in meeting the children’s needs.
The father’s senior counsel stressed that Dr L’s report indicates that the children have significant needs and that those needs are not being met by the mother. The father says that in failing to apply for NDIS funding, the mother is preventing the children from receiving the assistance they require.
It is the father’s case that the children’s needs are not being met and as a result, the children’s educational, psychological and social development is being impeded. The father submits that Y’s conduct in 2023 was troubling and that the incident in the school library indicates that there is a significant behavioural issue.
The father submits that the mother has failed to engage with experts and has failed to acknowledge the difficulties that the children experience. The father submits that the mother’s affidavit material does not address the issues that have beset the children at school and that the mother dismisses opinions that do not align with hers.
The father submits that the mother excludes him from the children’s appointments, will not accept diagnoses of the children, and either minimises their behaviour or attributes the children’s behavioural, psychological and educational issues to difficulties within the school or a history of trauma. The father says that the mother’s unwillingness to accept any diagnoses made in relation to the children is to the children’s detriment while the mother holds joint decision-making responsibilities.
The father’s case is that the mother has, by virtue of not appropriately engaging with allied health professionals, delayed and obstructed the children receiving therapeutic and day-to-day assistance.
The father’s senior counsel submitted that the Court must take the father’s case at its highest and that a consideration of the material before the Court would support a re-opening of the matter.
The father’s case is that the existing regime of Orders has not best met the children’s interests, and that the mother’s non-acceptance of the children’s diagnoses or the presence of significant problems in relation to the children is something that must be, and can only be, dealt with by reopening the proceedings. The father submits that the Court would be satisfied in finding a change of circumstances has occurred pursuant to s 65DAAA of the Act.
SUBMISSIONS OF THE MOTHER
The mother’s counsel submitted that 2022 – 2023 was a period of significant stress and transition for the children as this period involved the final hearing, followed by the implementation of a progressive increase in the children’s time with the father. That progression in time completed in late 2023.
Up until late 2023, the mother’s counsel submits that it was reasonably anticipated that there would be some difficulties in implementing the Orders made in 2022. The mother says this was borne out in Y’s difficulties at school, including suspensions and his eventual change in school.
The mother’s counsel submitted that the father’s conduct and communication has continued to be high-handed and difficult for her to manage. An example of this is in relation to the father making an appointment for X to see Dr L. The mother says the date the father organised for the appointment was the same day of the parties’ attendance at mediation and on a day where the father left on a holiday. That resulted in the mother having to attend mediation and then drive for hours to take X to the appointment. In those circumstances, she says both the father and Dr L’s criticism of her for the father’s non-attendance is unjustified.
The mother’s counsel tendered the children’s school reports for 2024.[5] Both children appear to be participating in their learning at a much higher level than previously. Both boys continue to have difficulties with academic progress but the mother submitted that in terms of behaviour, compliance and attitude, both boys have demonstrated a significant improvement. It is a criticism raised by the mother that the father has failed to draw to the Court’s attention the children’s improvement in 2024.
[5] Exhibits M4 & M6.
The mother’s counsel submitted that X has made significant strides in his behaviour and compliance at school and that this is while being in the mother’s predominant care and at the same school as in 2023. The mother says Y has flourished in his change of school which has seen many positive changes for Y. The mother is critical that these issues have been given no prominence by the father in his submissions.
The mother’s evidence is that the parties’ communication is slowly improving and that they are working together well in implementing recommendations to improve Y’s literacy. The mother submits that Mr K has indicated that his assistance is only required on an as needed basis and that this is an indication of the improving situation for Y.
The mother’s counsel submitted that the father’s application brought nine months after final Orders were made has not resulted in any peace between the parties and that the father has continued to engage in a combative and undermining way with the mother.
The mother’s counsel submitted that there continues to be little trust between the parties but that re-opening the matter will erode any progress that has been made in this regard. The mother submitted that the current concerns are medical issues relating to the children’s ongoing management, not legal issues. The mother’s counsel submitted that rather than continuing with this hearing, the parties should return to Dr L with the new information from the children’s schools and consider a way forward.
The mother submitted that the father has not established that there has been a change of circumstances and that even if the Court were to find that there had been a change of circumstances, it is not in the best interests of the children for the Court to exercise its discretion to re-open parenting proceedings.
THE LAW
The mother says that s 65DAAA of the Act is operative and would preclude the father from recommencing proceedings. Section 65DAAA says:
(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.
These proceedings were heard by way of consideration of the parties’ written material, tenders and oral submissions. The Court is to consider the Applicant’s evidence of controversial events and accept it unless there is incontrovertible evidence, or the material is found to be implausible or internally inconsistent: Albert & Plowman [2022] FedCFamC1F 243; Whitehill & Talaska [2024] FedCFamC2F 768. The Court is able to assess the evidence and the significance of that evidence.
In Carlyon & Graham [2024] FedCFamC1F 443, the Honourable Justice Schonell considered the issue of a section 65DAAA application and said the following:
[40] Parenting proceedings are governed by Pt VII of the Act. In making a parenting order, s 60CA requires that I am to regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, s 60CC(2) sets out the matters that are required to be considered. No one matter takes priority over the other. The matters to be considered are:
60CC How a court determines what is in a child’s best interests
…
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
[41] In considering the matters in s 60CC(2)(a), I must, pursuant to s 60CC(2A), consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that applies in relation to the child or a member of the child’s family.
[42] Section 60CG of the Act requires me, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
[43] Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of a child and the person who has the care of the child. The word safety should, in my view, be given its ordinary meaning; that is, the orders should provide a degree of protection from the matters identified in the subsection to the extent necessary relative to the evidence and the risk of harm.
[44] In circumstances where there is in place a final parenting order the operative provisions of s 65DAAA must be considered.
[45] The operative section is conjunctive and mandates that the Court must not reconsider a final parenting order unless it has considered whether there has been a significant change of circumstances since the final parenting order was made and the Court is satisfied that in all of the circumstances taking into account whether there has been a significant change of circumstances that it is in the best interests of the child for the parenting order to be reconsidered. Section 65DAAA(2) provides a non-exhaustive list of matters that the Court may consider in determining whether or not it is in the best interests of the child for the final parenting orders to be reconsidered.
[46] There is nothing new in the provisions contained in s 65DAAA rather it is a codification of well-established jurisprudence.
[47] It has been clearly articulated in numerous authorities that the court should not “lightly entertain an application to reverse” an earlier order unless it is satisfied that there are changed circumstances[.] It was sometimes inelegantly described as the rule in Rice & Asplund.
[48] The rationale for the existence of the so-called rule is that the best interests of children are not promoted by endless litigation and that once the court has made a determination, unless there has been established a change of circumstances, then the court should not engage in further litigation in relation to the child. In that respect as long ago as in Freeman and Freeman (1987) FLC 91-857, Strauss J said at 76-470–76-471:
… Once the court … 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. …
[emphasis added]
DISCUSSION
The final hearing and decision in this matter has done little to abate the deep distrust that exists between the parents. The children continue to be central to the parental dispute and this has continued to mean that the pathway for both children’s treatment is marred by the parental dispute.
It is clear that both children have significant and pressing needs. The behavioural issues that beset Y in 2023 resulted in Y’s enrolment at a primary school being revoked.
The father’s case is built on an Application that would see him be awarded parental responsibility to the exclusion of the mother in relation to medical decisions for the children, which would result in him being solely responsible for medical decision-making about the children. The father’s case also calls for a reversal of the children’s care arrangements.
This Application is based on what the father says is the mother’s inability to work with professionals and accept diagnoses made in relation to the children.
Dr L has prepared reports which were tendered as evidence.[6] The reports were available following a subpoena being issued for Dr L’s records. Dr L is a treater who the parents have entrusted with the care of X. Dr L has worked with the family since September 2022. Dr L met with the parents in July 2023 and while the mother reported that X was doing well at school, Dr L’s assessment of the learning and social development aspect of X’s school report was that she had rarely seen such a poor report.
[6] Exhibits F4 & F5.
The above highlights the difficulty in this matter with the way the parents report to professionals any concerns relating to the children. Dr L noted that the mother refused to consider the possibility of ADHD being a diagnosis for X. Dr L noted that there is a significant difference between what the mother reports and the observations of teachers and the father. In particular, Dr L was concerned about X’s impaired emotional dysregulation and engagement with his peers.
Dr L reported that the mother said she would not provide a steroid treatment to X due to his opposition; a position that Dr L noted was incongruent to the mother’s reports of X having excellent behaviour.
Dr L’s assessment of the diagnoses for X is concerning. In particular, I am concerned with Dr L’s diagnoses of “severe emotional dysregulation, associated with aggression, physical and verbal at school,” “significant anxiety issues” and “low self-esteem”.[7]
[7] Exhibit F4, page 4.
It was Dr L’s assessment that an application for NDIS funding was necessary so that X could receive appropriate support and assistance.
The father’s case is that the mother has failed to follow up on this recommendation and that her opposition is significantly detrimental to X.
The mother says that she had not received the report prior to the subpoena documents being made available.
The report which was relied on at this hearing was written in April 2024 and there is some dispute as to how it came about and whether it was released to both parents. Irrespective of that, I note the parties were due to meet with Dr L on the day that this matter was listed before me for hearing. That would have provided both parents the opportunity to discuss Dr L’s opinion and the changes that they have observed in the children with Dr L. Unfortunately, that appointment did not go ahead as both parents were in Court, and that meant that the children’s needs were subjugated to the needs of litigation.
The mother’s case is that there was a period of adjustment for the children and parents and that since the commencement of this year, both children are improving in their conduct and participation at school.
The mother’s case is that she is overwhelmed by the father’s conduct and communication, and that the recommencement of proceedings has interrupted her parenting of the children.
Judge Boyle (as she was then known) held a hope that the conclusion of the proceedings would see a change in the parenting dispute. That has not occurred. Indeed, when I consider the correspondence and the lack of consensus between the parents of the pathway forward, it is difficult to consider that there has been any improvement.
I do not make any findings on the untested evidence before me. However, the following are plausible inferences taking into account both parties’ evidence:
(a)The parties have not been able to establish a working relationship when it comes to determining how to address issues that have arisen for the children;
(b)Y’s behaviour in 2023 was significantly dysregulated and there was no consensus between his parents as to how to manage it;
(c)The parties have failed on several occasions to reach consensus when working with allied health professionals as to how to implement strategies to manage the children;
(d)There has been dispute between the parties as to the most appropriate pathway forward in relation to the children’s educational and health needs;
(e)The parties have demonstrated no joint problem-solving capacity in respect of the children; and
(f)The children’s school reports and Individual Adjustment Plans in 2024 do not include all of the difficulties that existed in 2023.
The report of Dr L arose following appointments in 2023. That report was not available to the Court at the time the proceedings were previously heard. That report raises significant issues in respect of X’s diagnoses and ongoing needs. The report also concurs with the father’s evidence that the parents, and in particular the mother, have had difficulties in accepting professional views.
Despite Orders allocating equal shared parental responsibility to the parents, they have on the face of the evidence, failed to reach agreement on a series of factors that have impacted on the children. I do not in reaching this conclusion make any finding as to why that has come about or as to the appropriateness of either parent’s position in respect of the children.
Taking the above into account, I am satisfied that there has been a significant change in circumstances since the final Orders were made.
Is it in the children’s best interests to permit the father to continue with his Application?
I am obliged to consider whether it is in the children’s best interests for the parenting Orders to be reconsidered.
While I have no material before me as to the children’s views, given the issues raised in this matter, those views would not be determinative.
The mother raises the previous findings of family violence made by the trial judge. I accept the mother’s submission that the father’s previous behaviour has continued to have an impact on the mother. However, the history of the parental relationship has led to the current incapacity of the parents to work together.
The continuation of the parental conflict is evident in the material I have outlined in this judgment. For the children, this has continued to expose them to parental conflict if not directly then certainly indirectly.
Taking the father’s case at its highest, there have been a series of disputes in relation to the children. Those disputes have resulted in treatment and services relating to the children being delayed. It is argued by the father that that has impacted the children’s social, educational and emotional wellbeing.
I accept that the parties have been able to ensure that the children have a relationship with each of the parents and have ensured that the Orders about how the children will spend time with each parent have been followed.
I accept that to permit reconsideration of the Orders would result in such reconsideration occurring at a time when the children’s wellbeing, school performance and behaviour have at least on the school reports and the report of Mr K started to settle and improve.
As already discussed, the report by Dr L raises significant issues in respect of X’s diagnoses and ongoing needs. For X, the diagnosis of significant anxiety issues and low self-esteem are particularly troubling. It is troubling for a child at his young age to receive such diagnoses and it is troubling because the parties remain in significant dispute as to whether these are accurate diagnoses and importantly, as to the reason for the diagnoses. The parties’ oppositional approach to each other in regard to the children is impeding a uniform approach to the issues X faces.
Dr L’s assessment included each parent and X’s teacher providing feedback through questionnaires. Dr L said in her report:[8]
I have tabulated the partial results of the different questionnaires completed by [the] father, mother and school, as similarly were tabulated by the Clinical Psychologist. The discrepancies are extremely marked and leaves me concerned as to [Ms Norman]’s perception of [X]. Either she is highly in denial or her response are not accurate. She reported things going well at school.
[8] Exhibit F4, page 3.
Dr L’s assessment and discussion of the mother’s responses during the appointment, while I accept are untested, were as follows:[9]
I started to discuss my concerns about his academic under performance, with his inability to stay focused and on task. His very impaired emotional dysregulation and engagement with his peers and marked concerns by his school about his progress. She became quite distressed and refused to consider the possibility of ADHD as a diagnosis. I did not at this point at all suggest medical treatment.
[9] Exhibit F4, page 3.
It would appear on the evidence before me that at its highest, the father’s case is that the mother has had difficulty accepting Dr L’s diagnoses of X, and has had difficulty in engaging with a process which requires her to provide feedback that will be considered and compared to the feedback provided by the father. Whether that is the case will be determined after the hearing of this matter.
Given the ongoing conflict between the parents, it may be necessary that the decision-making responsibility rest with only one parent. That at the very least will remove an area of dispute for the children.
If the mother’s Application to strike out the father’s Application was to succeed, the children would be stuck in a cycle of dispute and conflict in relation to their educational, psychological and mental health needs. That is not in the best interests of the children.
I am therefore satisfied, in all the circumstances and taking into account the significant change of circumstances since the final parenting Orders were made, that it is in the best interests of the children for the final parenting Orders to be reconsidered.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lioumis. Associate:
Dated: 25 October 2024
0
3
1