Bloxham and Bloxham (No 2)
[2020] FamCA 1040
•8 December 2020
FAMILY COURT OF AUSTRALIA
| BLOXHAM & BLOXHAM (NO. 2) | [2020] FamCA 1040 |
| FAMILY LAW – CHILDREN – Where further Initiating Application by father for parenting orders only months after final orders by consent – Where mother seeks to have application dismissed – Where consideration of Rice and Asplund threshold issue – Where consideration of applicable principles – Where no significant or relevant change in the children’s circumstances – Where Initiating Application dismissed – Where directions made for submissions as to costs appropriate. |
| Family Law Act 1975 (Cth) |
| Elmi & Munro (2019) FLC 93-912 Gaspaldi & Gaspaldi [2008] FamCAFC 134 Gelly and Gelly (No 1) (1992) FLC ¶92-290 Judd & Pryor(No.2) [2020] FamCA 934 Prewett & Mann [2013] FamCAFC 130 Rice & Asplund (1979) FLC 90-725 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 SPS & PLS (2008) FLC 93-363 Stephens & Stephens & Anor (Enforcement) (2009) FLC 93-425 Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 |
| APPLICANT: | Mr Bloxham |
| RESPONDENT: | Ms Bloxham |
| FILE NUMBER: | PAC | 2582 | of | 2017 |
| DATE DELIVERED: | 8 December 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 2 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton SC |
| SOLICITOR FOR THE APPLICANT: | Watts McCray |
| COUNSEL FOR THE RESPONDENT: | Mr Williams SC |
| SOLICITOR FOR THE RESPONDENT: | Dorter Family Lawyers And Mediators |
Orders
That the fathers Initiating Application filed 6 July 2020 as amended be dismissed.
That any application for costs be by way of written submission filed and served within 14 days with any submissions in response thereto be filed and served within a further 14 days and that upon completion of submissions judgment as to costs be reserved to chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bloxham & Bloxham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2582 of 2017
| Mr Bloxham |
Applicant
And
| Ms Bloxham |
Respondent
REASONS FOR JUDGMENT
On 5 March 2020 final parenting orders were made by consent in proceedings that had commenced in 2017.
On 5 March 2020 both parties were represented by senior counsel, who it is to be inferred represented to the Court on that day that the orders made were in the best interests of the children.
The final parenting orders were in the following terms:
(1)That within 24 hours of the date of these Orders the Mother and Father undertake chain of custody urine analysis in respect of the detection of alcohol and all drugs including but not limited to cocaine, opiates, amphetamines and cannabis, benzodiazepines, osazapam, disulfiram and oxycodone and the following consequential provisions apply:
a)The each party will be responsible for the costs of their own testing;
b)That forthwith upon receipt of the results each party will cause to be provided to the other party's solicitor a copy of their results.
(2)That within 3 days of these Orders and therefore by no later than 9 March 2020, the Mother and Father are to undertake chain of custody carbohydrate deficient transferrin testing (‘CDT testing’) to detect excessive alcohol use, such testing to be undertaken by ZZ Pathology.
(3)That the Mother and Father submit to a regime of hair drug and alcohol testing pending further Order of this Court and such testing shall take place as follows, subject to Order 4:
a)Within 3 days of these Orders and therefore by no later than 9 March 2020;
b)On 9 June 2020;
c)On 9 September 2020;
d)On 9 December 2020;
e)On 9 March 2021;
f)On 9 June 2021;
g)On 9 September 2021; and
h)On 9 December 2021.
(4)In the event that either party is required to travel overseas urgently during the dates specified in Order 3 above and is not as a result able to provide a sample on the 9th of the month, then that party will attend for hair strand drug and alcohol testing within 3 days of return from overseas or in advance departure.
(5)In order to give effect to Order 3, the Mother and Father shall:
a)appoint, AQ Services to nominate the Clinic to collect the hair sample from the parties on the basis that:
(i)the collection will be conducted by a qualified and certified collector;
(ii)a Chain-of-Custody procedure will be applied to the hair sample;
(iii)the testing is to be conducted at an approved laboratory, accredited to conduct hair drug and alcohol testing to the recognised international standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory and in compliance with the International Society of Hair Testing (SoHT) guidelines.
b)From the date of these Orders and pending further order maintain their head hair at a length of not less than 3 centimetres;
c)Not bleach or dye the underside of their hair and the sample to be taken from this area;
d)Within 3 days from the date of these orders do all acts and sign all necessary documents to make and attend an appointment with AWTDS by telephoning that organisation on ... and thereafter providing a hair sample for drug and alcohol testing purposes on the date of that appointment, which shall be in the first instance no later than 9 March 2020;
e)When providing the collector with the hair sample provide to the collector photographic identification of themselves showing their appearance on the day of collection with authority to AQ Services or its nominee to provide a copy of that photographic identification with the test results to the parties and their respective lawyers;
f)Authorise and direct AQ Services to screen the hair sample provided by them for alcohol EtG and drugs of abuse including amphetamine type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites, disulfiram and metabolites.
g)Authorise and direct AQ Services to provide the results of the hair, drug and alcohol screen for each party to each of the parties and to their legal representatives.
h)Each party is responsible for the costs of their own testing.
(6)That the Mother and Father be restrained from consuming alcohol so that they would have a blood alcohol reading of not greater than 0.05 per cent in the presence of the children, and for at least 12 hours before spending time with the children.
(7)That the Mother and Father be restrained from consuming illicit substances.
Living Arrangements
(8)That the children SS, born … 2011, VV, born … 2012 and YY born … 2014 ("the children") live with the Father and Mother during school term time as agreed or in default as follows:
a)with the father seven (7) nights per fortnight, being from the conclusion of school on Friday (or 3.00 pm if a non-school day) until the commencement of school on the following Friday (or 3.00 pm if a non- school day) each alternate week; and
b)with the mother seven (7) nights per fortnight, being from the conclusion of school on Friday (or 3.00 pm if a non-school day) until the commencement of school on the following Friday (or 3.00 pm if a non-school day) each alternate week.
(9)That the children spend time with the Father and Mother during school holidays as agreed or in default as follows:
9.1During the short school holidays at the end of Term 1, Term 2 and Term 3 in accordance with Order 8; and
9.2During the long school holidays at the end of Term 4:
9.2.1For the first half of the school holiday period in even numbered years with the Father;
9.2.2For the second half of the school holiday period in odd numbered years with the Father;
9.2.3For the first half of the school holiday period in odd numbered years with the Mother;
9.2.4For the second half of the school holiday period in even numbered years with the Mother
(10)In the event that any of the tests contemplated by Orders 1 to 3 are outside the accepted guidelines according to the laboratory or subject to Order 4 either party fails to submit to testing, either party is at liberty to file such urgent application as they may be advised.
Special Occasions
(11)The children spend time with the mother on special occasions as may be agreed, but failing agreement, as follows:
11.1From the conclusion of school on the Friday prior to Mother’s Day until the commencement of school on the Monday following Mother’s Day each year;
11.2From the conclusion of school on the mother’s birthday (or 10.00 am if a non-school day) until the commencement of school on the following day (or 10.00 am if a non-school day) each year;
11.3From 10.00 am on Good Friday until 10.00 am on Easter Sunday in all odd numbered years;
11.4From 10.00 am on Easter Sunday until the commencement of school on the day following Easter Monday (or 10.00 am if a non-school day) in all even numbered years;
11.5If a child’s birthday does not fall on a school day, then:
11.5.1From 10.00 am until 2.00 pm on that day in all odd numbered years; and
11.5.2From 2.00 pm on that day until the commencement of school on the following day (or 10.00 am if a non-school day) in all even numbered years;
11.6From 10.00 am on Christmas Eve until 2.00 pm on Christmas Day in all odd numbered years; and
11.7From 2.00 pm on Christmas Day until 5.00 pm on Boxing Day in all even numbered years.
(12)The children spend time with the father on special occasions at all times as may be agreed, but failing agreement, as follows:
12.1From the conclusion of school on the Friday prior to Father’s Day until the commencement of school on the Monday following Father’s Day each year;
12.2From the conclusion of school on the father’s birthday (or 10.00 am if a non-school day) until the commencement of school on the following day (or 10.00 am if a non-school day) each year;
12.3From 10.00 am on Good Friday until 10.00 am on Easter Sunday in all even numbered years;
12.4From 10.00 am on Easter Sunday until the commencement of school on the day following Easter Monday (or 10.00 am if a non-school day) in all odd numbered years;
12.5If a child’s birthday does not fall on a school day, then:
12.5.1From 10.00 am until 2.00 pm on that day in all even numbered years; and
12.5.2From 2.00 pm on that day until the commencement of school on the following day (or 10.00 am if a non-school day) in all odd numbered years;
12.6From 10.00 am on Christmas Eve until 2.00 pm on Christmas Day in all even numbered years; and
12.7From 2.00 pm on Christmas Day until 5.00 pm on Boxing Day in all odd numbered years.
Changeover
(13)Unless the parents agree otherwise in writing, the parent who is due to be spending time with the children:
13.1is to collect each child at the commencement of the children’s time with them, either from school if the child attends school that day or from the other parent's residence if the child does not attend school that day; and
13.2Deliver each child at conclusion of the children’s time with them to school if the child is to attend school that day.
Travel
(14)That the Father be permitted to remove the children from Australia for a family holiday in Europe, from 25 June 2020 to 18 July 2020.
(15)That for the purpose of the above travel the Mother is to provide the children's passports to the Father 14 days prior to the travel.
(16)That the Father be permitted to take the child/ren out of Australia on holidays provided that:
16.1Subject to Order 14, the travel take place during the time that he ordinarily spend with the children in accordance with these Orders or otherwise as agreed between the parties in writing.
16.2He gives to the Mother written notice of the intended travel (including destinations) at least 7 days prior to departure
16.3He gives to the Mother a copy of the travel itinerary for the child/ren;
16.4He gives to the Mother a telephone number on which the child/ren can be contacted whilst away from Australia; and
16.516.5 For the purpose of such travel, the parent holding the child/rens passports is to provide the same to the other party at least 3 days prior to departure.
(17)That the Mother be permitted to take the child/ren out of Australia on holidays provided that:
17.1the travel take place during the time that she ordinarily spend with the children in accordance with these Orders or otherwise as agreed between the parties in writing.
17.2She gives to the Father written notice of the intended travel (including destinations) at least 7 days prior to departure
17.3She gives to the Father a copy of the travel itinerary for the child/ren;
17.4She gives to the Father a telephone number on which the child/ren can be contacted whilst away from Australia; and
17.5For the purpose of such travel, the parent holding the child/rens passports is to provide the same to the other party at least 3 days prior to departure.
Subsequent to final parenting being resolved in March 2020, the parties have continued to litigate on the question of financial adjustment to their property interests. Those proceedings remain to be resolved.
Notwithstanding final parenting orders being made on 5 March 2020, the father filed a fresh Initiating Application on 6 July 2020 seeking final parenting orders, in summary, as follows:
a)that the children live with him;
b)that the mother spend time with the children as agreed between the parties or by order of the court as it sees fit; and
c)that the father have liberty to amend final orders sought following the mother attending a drug/alcohol rehabilitation program.
In his fresh Initiating Application the father sought interim orders that, in summary, provided:
a)that orders of 5 March 2020 be suspended;
b)that the children live with him;
c)that the children spend limited day time periods with the mother with such time to be supervised by an appropriate adult as agreed between the parties or failing agreement supervised by a private supervisor selected by the father with the costs of such supervision to be met by the mother;
d)that the children spend school holiday time with the mother as agreed between the parties in writing with such time to be supervised as set out above;
e)the father otherwise sought a raft of orders requiring the mother to engage in a drug/alcohol rehabilitation program, provide a report from that course, undertake chain of custody urine analysis within 24 hours of orders and thereafter within 24 hours of any requested by the father to do so, engage in a regime of hair drug and alcohol testing at her expense;
f)that for the purposes of changeovers for the children’s time with the mother changeovers unless agreed otherwise take place at the children’s school or otherwise at the father’s property;
g)that the mother be restrained from consuming alcohol in the presence of the children or for at least 12 hours before or during any period the children spend supervised time with her; and
h)that the mother be restrained from consuming illicit substances.
The father’s Initiating Application and the interim orders sought therein were supported by his affidavit sworn 1 July 2020 and an affidavit upon which he sought leave to rely by a Dr WW, Pharmacologist and Forensic Toxicologist. The father also relied on his later affidavit sworn 29 July 2020 and an affidavit of Mr XX.
The mother on 21 July 2020 filed a Response to the father’s Initiating Application. In short she sought an order that the father’s Initiating Application be dismissed.
Her Response was supported by her affidavit filed 21 July 2020.
On 17 August 2020 the father filed an Amended Initiating Application seeking final orders as follows:
(1)That within 48 hours from the date of these Orders, the Mother shall do all acts and things to register for one of the following drug and alcohol rehabilitation programmes ("Rehabilitation Course"):
1.1AL Centre (Outpatient treatment program of at least 10 sessions)
1.2AM Medical Centre (12 week outpatient program for Drug and Alcohol Addiction);
1.3AN Services (Stage 1 – Recovery Group and Stage 2 – Recovery Group)
And thereafter attend and engage in the selected Rehabilitation Course.
(2)The Father is to meet the costs of the Rehabilitation Course as invoiced, if applicable.
(3)Upon the Mothers completion of the Rehabilitation Course, the Mother is to file with the Court and serve on the Father a report as to her attendance and engagement on the course and recommendation for further intervention as appropriate.
(4)That within 24 hours of the Mother's Solicitor receiving a request in writing from the Father's Solicitor (and not more than once per month), the Wife is to undertake chain of custody urine analysis in respect of the detection of alcohol and all drugs including but not limited to cocaine, opiates, amphetamines and cannabis, benzodiazepines, osazapam, oxycodone and forthwith provide the results to the Husband's Lawyers.
(5)For the purpose of the above Order, the costs are to be shared by the parties.
(6)That Order 6 of the Orders made on 5 March 2020 be suspended.
(7)That the Mother be restrained from consuming alcohol in the presence of the children and at least 24 hours prior to spending time with the children.
(8)That Order 5 (b) of the Orders made on 5 March 2020 be suspended.
(9)That the Mother and Father be restrained from bleaching or dyeing their head of hair or having any hair treatment whether undertaken professionally, by themselves or by a third party until the conclusion of the testing regime required by Order 3 of the Orders dated 5 March 2020.
(10)That the parties are to authorise and direct AQ Services and/or their agent collecting the sample for hair follicle testing as required by Order 3, 4 and 5 of the Orders made on 5 March 2020 to take a photograph of the Mother and Father's hair from the sample area prior to the sample being collected and provide a copy of the photograph to each party
(11)That Order 10 of the Orders made on 5 March 2020 be suspended
(12)In the event that the Mother's test results contemplated by the above Orders and Orders made on 5 March 2020 are outside the accepted guidelines according to the laboratory or subject to Order 4 of the Orders made on 5 March 2020 the Mother fails to submit to testing or is in contravention of Order 1, 7 or 9 above, the Mother's time with the children be suspended such that time take place between the children and the Mother as follows:
12.1Each Tuesday from after school (or 12 noon if not a school day) to 7.30 pm;
12.2Each Thursday from after school (or 12 noon if not a school day) to 7.30 pm;
12.3Each Sunday between 12 noon and 6.00 pm;
Such time to be supervised by an appropriate adult as agreed between the parties or if not agreed then to be supervised by a private supervisor selected by the Father, with the costs met by the Mother.
(13)That either party be at liberty to seek that the matter be re-listed in the event that Order 12 above is applicable.
(14)That leave be granted to the Father to rely upon the Affidavit of Dr WW.
(15)That the father have liberty to amend the Final Orders sought following the Mother attending a drug/alcohol rehabilitation programme.
Otherwise, the father sought interim orders in substantially the same terms.
The fresh parenting proceedings were listed for judicial case management on 17 August 2020 and on that date orders and directions were made as follows:
UPON NOTING THAT THE RESPONDENT MOTHER RAISES THE THRESHOLD QUESTION OF RICE AND ASPLUND AS A CONSEQUENCE OF FINAL ORDERS BEING MADE BY CONSENT ON 5 MARCH 2020, IT IS ORDERED THAT
(1)The Respondent mother file and serve written submissions as to the Rice and Asplund threshold issue by no later than Monday, 31 August 2020.
(2)The Applicant husband file and serve any submissions in response by no later than Monday, 14 September 2020.
(3)The Respondent mother file and serve any short submissions in reply by no later than Monday, 21 September 2020.
(4)Submissions by the parties proceed by way of reference to material filed by the parties as a consequence of the father’s Initiating Application filed on 6 July 2020 and, otherwise, affidavits filed in support of the present interim application before the Court.
(5)Upon completion of written submissions, judgment be reserved to chambers.
The father’s further application
Prior to delivery of judgment on the threshold issue the father filed on 10 September 2020 an Application in a Case seeking the following orders:
(1)That this Application be relisted urgently before Justice Foster.
(2)That short notice be granted.
(3)That the determination of the Wife's contention that the relief sought by the Father in his Amended Initiating Application filed 17 August 2020 as to a variation of the parenting orders made 5 March 2020 by way of the principles identified by the Full Court in Rice v Asplund [1979] FLC 90-725 not be determined until the reports sought from Dr AP and Professor AH pursuant to these Orders are prepared and released.
Expert Appointment
Dr AP
(4)That Dr AP be appointed as the Court Expert in these proceedings pursuant to Part 15.5 of the Family Law Rules to provide a family report.
(5)That in order to facilitate preparation of the report referred to in the above order:
5.1The parties each provide the Court Expert with copies of documents filed on their behalf in parenting proceedings within seven (7) days;
5.2That Father is to provide the Court Expert with the following documents produced on Subpoena within seven (7) days and for the purpose of this Order the Mother and Father have leave to copy the following Subpoena records:
a)NSW Police;
b)AB Company;
c)BC Company;
d)AD Practice;
e)BD Psychology;
f)AC Hospital;
g)Dr AF;
h)AG Medical Centre;
i)Mr XX;
5.3That the Mother is to provide to the Court Expert and the Father her complete medical records (including records of any psychiatrists/psychologists and counsellors she has attended) within 7 days of the date of this Order.
5.4That the Mother and Father are to provide to the Court Expert copies of all test results for all tests they have undertaken in relation to drugs and alcohol within 7 days.
5.5That the parties are to attend upon the Court Expert for such interviews and observation sessions as the expert requires at any reasonable time nominated by the Court Expert and ensure that the children are available for such interviews and observations as the expert requires.
5.6That the parties are to provide to the Court Expert the Report of Professor AH, the Court Expert in Addiction Medicine forthwith upon the same being released to the parties.
(6)The Mother be responsible for the costs of the Court Expert in first instance with the Wife having liberty to seek contribution by the Husband.
Professor AH
(7)That Professor AH be appointed as the Court Expert in Addiction Medicine in these proceedings pursuant to Part 15.5 of the Family Law Rules to provide a report in respect of the Mother, Ms Bloxham.
(8)That in order to facilitate preparation of the report referred to in the above order:
8.1The parties each provide the Court Expert in Addiction Medicine with copies of documents filed on their behalf in parenting proceedings within seven (7) days;
8.2That Father is to provide the Court Expert in Addiction Medicine with the following documents produced on Subpoena within seven (7) days and for the purpose of this Order, the Mother and Father have leave to copy the following Subpoena records:
a)NSW Police;
b)AB Company;
c)BC Company;
d)AD Practice;
e)BD Psychology;
f)AC Hospital;
g)Dr AF;
h)AG Medical Centre;
i)Mr XX;
8.3That the Mother is to provide to the Court Expert in Addiction Medicine and the Father her complete medical records (including records of any psychiatrists/psychologists and counsellors she has attended) within 7 days of the date of this Order.
8.4That the Mother and Father are to provide to the Court Expert in Addiction Medicine copies of all test results for all tests they have undertaken in relation to drugs and alcohol within 7 days.
8.5The Mother is to attend upon the Court Expert in Addiction Medicine for such interviews and observation sessions as the expert requires at any reasonable time nominated by the Court Expert in Addiction Medicine.
(9)The Mother be responsible for the costs of the Court Expert in Addiction Medicine in first instance with the Wife having liberty to seek contribution by the Husband.
Interim Orders
(10)That pending further Order, Order 6 made on 5 March 2020 be varied so that the Mother be restrained from consuming alcohol in the presence of the children and for at least 24 hours before or during any period the children spend time with her.
(11)That the Court notes Order 7 made on 5 March 2020 that the Mother (and the Father) be restrained from consuming illicit substances.
(12)That pending further Order, that Order 5(b) be varied so that the Mother be restrained from bleaching or dyeing her head of hair or having any hair treatment whether undertaken professionally, by herself or by a third party until the conclusion of the testing regime required by Order 3 of the Orders dated 5 March 2020.
(13)That the Court notes Order 3 made on 5 March 2020 that the Mother (and the Father) submit to a regime of hair drug and alcohol testing until 9 December 2021.
(14)That pending further Order, and in addition to the Orders of 5 March 2020:
14.1That within 24 hours of the Mother's Solicitor receiving a request in writing from the Father's Solicitor (and not more than once per month), the Wife is to undertake chain of custody urine analysis in respect of the detection of alcohol and all drugs including but not limited to cocaine, opiates, amphetamines and cannabis, benzodiazepines, osazapam, oxycodone and forthwith provide the results to the Husband's Lawyers.
14.2That within 24 hours of the date of these Orders and within 24 hours of the Mother's Solicitor receiving a request in writing from the Father's Solicitor (and not more than once per month), the Wife is to undertake chain of custody carbohydrate deficient transferrin testing ("CDT Testing") to detect excessive alcohol use, such testing to be undertaken by ZZ Pathology.
14.3For the purpose of the above Orders, that the mother be responsible for the costs of the testing in first instance with the Wife having liberty to seek contribution by the Husband.
(15)That in the event:
15.1The Mother consumes alcohol contrary to Order 10 above; or
15.2The Mother takes illicit substances contrary to Order 7 of the Orders made on 5 March 2020; or
15.3The Mother bleaches, dyes, or undertakes treatment to her hair (whether professionally, by herself or by a third party) contrary to order 12 above; or
15.4The Mother does not attend for testing as required by Order 14 above or Order 3 of the Orders made on 5 March 2020; or
15.5The Mothers returns a positive test results for drugs or alcohol;
Then forthwith upon such failure or neglect, Orders 8, 9, 11, 13 and 17 of the Orders made 5 March 2020 be suspended pending further order of the Court and the time the parents spend with the children is to take place as follows:
a)With the mother:
(a)Each Tuesday from after school (or 12 noon if not a school day) to 7.30 pm;
(b)Each Thursday from after school (or 12 noon if not a school day) to 7.30 pm;
(c)Each Sunday between 12 noon and 6.00 pm;
Such time to be supervised by an appropriate adult as agreed between the parties or if not agreed then to be supervised by a private supervisor selected by the Father, with the costs met by the Mother.
b)With the father at all other times.
(16)In the event that Order 15 applies the matter is to be relisted before Justice Foster at short notice.
(17)That leave be granted adduce and rely upon Affidavit of Dr WW.
(18)Liberty to apply on short notice to Justice Foster's chambers.
(19)That the Mother pay the costs of and incidental to this Application.
In support of this Application in a Case the father relied upon his affidavit sworn 9 September 2020 and the affidavit of a Mr XX sworn 10 September 2020.
The mother filed a Response to the father’s Application in a Case on 1 October 2020. In that Response she sought an order that the Application in a Case be dismissed and that judgment as to the determination of the Rice v Asplund issue be reserved.
In support of her Response the mother relied upon her affidavit sworn 1 October 2020.
The father’s Application in a Case was listed for judicial case management on 2 October 2020 and orders and directions were made as follows:
a)the applicant husband file and serve short submissions in support of his application to adduce further evidence by no later than Friday, 9 October 2020;
b)the respondent wife file and serve any short submissions in response by no later than Friday, 16 October 2020; and
c)upon completion of written submissions judgment will be reserved to chambers.
The reopening of a case prior to the delivery of judgment is an exceptional circumstance.
The fundamental principle to be applied in determining whether to grant an application to reopen a hearing after judgment has been reserved is whether the interests of justice are better served by allowing the application or rejecting it: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 per Clarke JA at 476 with whom Mahoney JA and Meagher JA agreed; Gelly and Gelly (No 1) (1992) FLC ¶92-290 per Treyvaud J at 79, 146-148; Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 per Brennan, Dawson, Toohey and Gaudron JJ at 266-7 and Gaspaldi & Gaspaldi [2008] FamCAFC 134 (unreported, Family Court of Australia, Bryant CJ, Thackray and Le Poer Trench JJ, 2 October 2007); Stephens & Stephens & Anor (Enforcement) (2009) FLC 93-425.
General principles are that the Court has discretion to reopen a hearing and allow fresh evidence where:
a)the fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence;
b)the fresh evidence is so material that the interests of justice require it;
c)if believed, the fresh evidence would most probably affect the result of the trial; and
d)there would be no prejudice to the other party by reason of its introduction at a late point in time.
Yet a closer examination of the father’s Application in a Case reveals that he, in reality, seeks orders that are in pursuance of his fresh parenting application. He seeks to delay the determination of the threshold question until such time as there has been a Chapter 15 Expert Report that would again involve the children in the parties’ litigation and see the mother constrained by orders such as were put in place by consent in March 2020 and which have as yet not been fully implemented in their time frame as provided in the orders as to both parties and that does not conclude until December 2021. In default, the circumstances of the children would be substantially altered such as to limited supervised time with the mother to day time only for a few hours at a time.
In the event that his Initiating Application is dismissed, then his Further Application in a Case will also fall away.
What change: Rice and Asplund?
In Prewett & Mann [2013] FamCAFC 130 the Full Court succinctly considered the “rule” as follows:
THE RULE IN RICE & ASPLUND
7.The “rule” in Rice & Asplund refers to remarks made by Evatt CJ in that case 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 …
8.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.
9.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 (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).
10.As to the application of the rule, the Full Court in Marsden v Winch (2009) 42 Fam LR 1 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.
11.Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which governs determination of the applications before his Honour, have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.
The law as cited above was confirmed recently by the Full Court in Elmi & Munro (2019) FLC 93-912:
24.There is no scope for doubting the correctness of Rice and Asplund in any event. It has been explained and applied in many Full Court decisions, including Langham & Langham (1981) FLC 91-014; Newling and Newling (1987) FLC 91-856 (“Newling”); Bennett and Bennett (1991) FLC 92-191; Miller & Harrington (2008) FLC 93-383 (“Miller & Harrington”); SPS and PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Langmeil & Grange [2013] FamCAFC 31; Poisat & Poisat (2014) FLC 93-597 (“Poisat”); Carriel & Lendrum (2015) FLC 93-640; Tindall & Saldo (2016) FLC 93-727.
25.In Poisat, the Full Court (Strickland, Murphy & Austin JJ) said at [13] that the principle “is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently”.
Austin J in Judd & Pryor (No 2) [2020] FamCA 934 (26 October 2020) succinctly set out the relevant and well settled principles thus:
a)The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund; SPS & PLS (2008) FLC 93-363 at [1]; Marsden v Winch (2009) 42 Fam LR 1 (“Marsden v Winch”) at [48]; Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
b)The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 (“Miller & Harrington”) at [80]-[83]) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
c)In order to determine the existence and materiality of the asserted change in circumstances, consideration should be given to (Marsden v Winch at [50]):
(i)the past circumstances, including the reasons for the original decision and the evidence upon which it was based;
(ii)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; and
(iii)if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause.
It is appropriate to consider the parties’ contentions as to circumstances that would warrant relitigation of the children’s best interests.
Context
Proceedings were commenced by the mother who filed an Initiating Application on 25 May 2017. In that application she sought orders only as to property.
On 7 June 2017 the father filed a Response to the mother’s Initiating Application. In that Response he sought parenting orders that, in summary, provided that the parties have equal shared parental responsibility for the children, that the children live with him and spend time with the mother as agreed between the parties or by order of the Court.
On 26 October 2018 the mother filed an Amended Initiating Application so as to include orders sought by her as to parenting. The mother, in summary, sought orders that the parties have equal shared parental responsibility for the children, that the children live with the mother and spend time with the father as agreed between the parties and in default of agreement five nights per fortnight during school term from after school Friday to before school Wednesday and for half of the children’s school holiday periods.
The proceedings were listed before a registrar on a number of occasions and then on 6 September 2018 the proceedings were listed for judicial case management. On that day the parties were ordered to attend Child and Parents Intake Assessment (“CAPIA”) interviews on 29 October 2018 in order that a report might be available to the Court as to parenting issues between the parties.
The CAPIA Report and thereafter
The CAPIA report was dated 14 November 2018 following interviews with the parties and the children on 29 October 2018.
In “Background” the family consultant noted that the parties commenced cohabitation in 2000, married in 2007 and separated on a final basis in June 2016.
It was not disputed that until separation the mother had always been the children’s primary carer while the father owned and operated a business that required him to work very long hours and travel overseas frequently.
The parties had separated on occasions and they had been assisted in the care of the children by a nanny.
Following separation the children initially continued to live with the mother and spend time with the father by agreement until the father took the children into his care on several occasions including for a period of several months due to what he claimed had been the mother’s abuse of substances.
As to the children’s living circumstances at the time of interviews, the family consultant noted that the parties gave differing accounts. The father claimed that the children had been living in an equal shared arrangement week about for the eight months prior to interviews with changeovers on Fridays. The father said that he was assisted in the care of the children by a nanny. The mother asserted that the children have lived primarily with her but had spent increasing amounts of time with the father. She acknowledged that at the time of interviews the children were living in an equal time arrangement and asserted that it was the nanny who provided primary care for the children when they were with the father.
The family consultant noted that the primary issues were:
a)the most appropriate arrangements for the children to live with and spend time with each parent;
b)that the parents had given different accounts regarding the history of care including the current arrangements;
c)the impact on the children from parental substance abuse; and
d)the potentially negative impact on the children’s well-being and mental health from the parental conflict.
As to the child VV, the parties provided the family consultant with his medical history including that he continues to be monitored for the development of cancer and suffers from coeliac’s disease. The parties reported that the child SS can be somewhat anxious, the father noting that he “panics if he can’t see a parent”. The parties reported no significant issues in relation to the child YY.
On interview with the family consultant, the child SS then aged seven, reported that he was in year one at his local public school. He informed the family consultant that he had never seen his parents argue and appeared to the family consultant to be surprised when asked about parental conflict. The child reported that the mother was a “kind” mother, regularly gives him cuddles and he is not fearful of her in any way. He described his father as “a kind dad” who gives him lots of affection and he is not fearful of his father in any way. He reported to the family consultant that his preferred arrangement was to sleep two weeks at dad’s and two weeks at mum’s but that the then current arrangement felt good. Later in the interview the child reported that he wanted “a few more nights with mum”.
The child VV then aged six reported that he was in kindergarten at his local public school. VV informed the consultant that he was aware that his parents did not always agree but he did not report regularly witnessing conflict. He said that he was living seven days at dad’s and seven days at mum’s and when he is with one parent he misses the other. He reported that both parents were good at looking after children. He was not fearful of either parent, both of whom get grumpy when he misbehaves.
The child YY then aged four was not interviewed by reason of her age and developmental level.
In observing the children with the mother, the family consultant reported that the mother used a cheerful, enthusiastic tone when addressing the children and interacted with them in a developmentally appropriate manner. The children appeared comfortable with the mother and seemed to enjoy their time in the playroom with her.
In observation of the children with the father the family consultant observed that the children appeared excited to play with him and seemed comfortable with him.
It was noted by the family consultant that upon completion of observation the mother and father stood chatting about arrangements for the children for the remainder of the day in a civil manner with the children milling around them.
As to family violence, the father denied that there had been any. The mother reported that whilst the father was not generally violent or verbally abusive he had got into a rage on a couple of occasions whilst intoxicated when he had been distressed and overly anxious about the children. The mother reported there was one occasion when he had smashed a piece of artwork in anger and that subsequent to separation had changed the locks on her premises. She reported that she was at the time of interview not currently fearful of the father.
Importantly, in relation to substance abuse, the father reported to the family consultant that both parents had experimented with cannabis and cocaine during their relationship. He asserted that the mother had also used MDMA. He further reported that he and the mother had consumed two or three glasses of wine most days during the week. The father reported cocaine use in 2018 but never when the children were in his care. The father asserted that post separation there had been a period when the mother increased her use of cocaine and alcohol. He asserted that this put the children at risk due to poor supervision. He further asserted that the mother’s alcohol abuse had been reported to him by two of the children’s nannies. At the time of interview he did not believe that the mother was misusing substances but that her views were easily influenced and that an equal time arrangement would allow him to monitor the children’s well-being.
The mother reported to the family consultant that it was the father who had introduced her to regular recreational use of cocaine that they used together about twice a week. She reported that after separation she had used the drug “a little” because she had been experiencing anxiety. The mother denied any dependency on the drug. She also reported that she and the father had consumed wine most days during the week. The mother denied that her alcohol use had increased since separation and denied that neither her nor the father’s alcohol consumption negatively impacted on their parenting capacity.
As to conflict both parents reported periods of difficult communication but overall they were able to communicate and cooperate regarding the children and their needs. Indeed, the family consultant observed some degree of affection between them.
The father maintained his proposal for equal time because, although he had no concerns about the mother’s current parenting capacity, he believed the children would benefit from him taking an active and monitoring role in their care. He reported that the current dispute between he and the mother was primarily focused on their property settlement. He described the mother as “a good mother” and stated that she was caring towards the children.
The mother reported to the family consultant that one positive about the separation was that the father had developed a relationship with the children, asserting that he had not spent much time with the children prior to separation. She described the father as a loving father who cares for the children but asserted that he continued to work long hours, necessitating the children being left in the care of another while she was available at all times to care for the children.
In evaluation the family consultant opined that it was positive that the mother and father were able to communicate in a friendly and cooperative manner and that this would be of particular assistance as the children transition between the two homes. The family consultant reported that the children appear to have a very good relationship with both parents and it appears they would benefit from spending substantial time with each parent.
Both parents, she reported, admitted the use of illicit substances and the use of alcohol. Neither parent at the time of interview expressed any current concerns in this regard.
The final orders
Subsequent to the CAPIA report the father filed an Application in a Case seeking interim orders as to parenting. In that interim application, subsequently amended on 3 March 2020, the father relevantly sought interim parenting orders that, in summary, provided:
a)that the children live with the father;
b)that the mother undertake a regime of chain of custody urine analysis testing for the detection of drugs and alcohol over an extended period;
c)that the mother be restrained from consuming alcohol in the presence of the children or for at least 12 hours before the children are with her;
d)that the mother be restrained from consuming illicit substances;
e)that subject to the satisfactory outcome of the regime of testing that the children reside effectively in a week about arrangement with each parent and that in the event that there were unsatisfactory testing outcomes for the mother that she spend unsupervised time with the children on a day only basis on three days per week; and
f)that subject to satisfactory outcome of the regime of testing the children spend time with the mother and father for specific periods on Mother’s Day, Father’s Day, birthdays, at Easter and at Christmas.
The mother filed a Response on 28 February 2020 to the father’s Application in a Case seeking interim parenting orders that, in summary, relevantly provided:
a)that the parties have equal shared parental responsibility for the children;
b)that the children live with the mother;
c)that the children spend time with the father as agreed between the parties and in default five nights per fortnight from Friday after school until Wednesday before school in each alternate week and that otherwise the school holidays be shared equally and there be specific orders for time on specific special periods much as sought by the father;
d)that the father submit to a regime of urinalysis drug and alcohol testing on a three monthly basis; and
e)that the father submit to a regime of hair follicle testing for alcohol and drugs.
The interim parenting proceedings were listed before a Senior Registrar for hearing on 5 March 2020. At hearing both the mother and father were represented by senior counsel. During the course of that day the parties resolved parenting proceedings relating to the children on a final basis. Detailed and extensive final parenting orders were made by consent as set out above.
It is of note that the final orders provided for both the mother and father to undertake urinalysis testing, CDT testing and hair follicle drug and alcohol testing. As to the hair follicle testing, a regime of testing over a period of time until December 2021 was agreed upon. Otherwise, both parties were restrained from having a blood alcohol reading of more than 0.05 per cent in the presence of the children or for at least 12 hours before spending time with the children and they were, otherwise, restrained from consuming illicit substances.
The final orders provided for a shared care arrangement during school term and school holidays with specific orders made in relation to special occasions relating to Mother’s Day, Father’s Day, birthdays, Easter and Christmas. Otherwise, there were particular orders as to changeovers and overseas travel.
Nevertheless whilst the parties resolved on a final basis parenting issues relating to the young children, their property issues continue to rage unabated with various interlocutory applications being made from the very commencement of the proceedings and, indeed, continuing to date.
The father’s evidence
In the present application the father relied upon:
a)his affidavit sworn 1 July 2020;
b)his affidavit sworn 29 July 2020;
c)the affidavit of Dr WW affirmed 1 July 2020; and
d)the affidavit of Mr XX sworn 10 September 2020.
The father provides a copy of the mother’s hair follicle test results for her test collected 4 June 2020. The mother tested negative for a range of drugs and positive in relation to alcohol with the result indicating “low to moderate consumption”. It is noted in the report that low to moderate consumption is in the range of 2 – 29.9pg/mg. The mother’s test revealed a result of 8.7pg/mg being in the lower 30 per cent of that range. Doing the best that can be done, it would seem to indicate a low consumption of alcohol with the report revealing that no further testing was necessary.
The father refers to an incident on 27 June 2020 when on the occasion of the child SS’s birthday there was to be a party for the child and his friends at the mother’s home. The mother, he says, had prepared the property for the party at which she was also hosting various parents of the child’s friends.
The father made arrangements for the child VV to remain with him with the children SS and YY remaining with the mother.
The father telephoned the mother’s home at 8.40 pm to see whether the child YY wanted to be picked up. There was no answer so the father sent a text message to a Mr XX who had been residing in the mother’s home as a guest due to his difficult financial circumstances. Mr XX made a comment about the mother being “off her cake”, later explained by him being his observations of the mother being glassy eyed, talking loudly, giggling and swaying. He reported that the kids “are all good, don’t worry the kids are okay”.
The following morning the father again messaged Mr XX who suggested to the father that it might be a good idea to pick up the children and that the place was in a mess. The father asserts that he arrived at the mother’s home that afternoon finding the property unclean and he exhibits a number of photographs to his affidavit. The mother, he says, was not to be found until he went to her bedroom and found her asleep on the bed. He was unable to rouse her. He left the home with the children.
The father asserts that the child SS said that “mum has been drinking a lot”. The child YY reported that “I slept in mummy’s bed with the boys without any adults”.
Mr XX informed the father that the mother had been drinking during the night and he had observed the children sleeping in the mother’s bed. He observed the mother late in the evening on the lounge and she could not be woken. Mr XX further reported that the mother had recommenced drinking the next afternoon at 5.00 pm and was stopped from doing so by his partner Alisha.
The father asserts that he had long been concerned about the mother’s party lifestyle and had tried to work with the mother over a number of years for the benefit of children. Notwithstanding these long-held concerns he facilitated a resolution of parenting proceedings on a final basis as referred to above.
Subsequent to the events referred to above, the father communicated with the mother who in her responses said “I’ve been so proud of myself up until this point”, “I’m now taking measures to heal myself”, “I have sought help”.
The father expresses in his affidavit his pleasure that the mother is taking steps to obtain help and acknowledges her conduct. He expresses reservation that the children will be safe in the mother’s care in accordance with the time provided for in final orders.
The father further complains that the mother has taken steps to avoid detection of drugs and/or alcohol. The final orders of 5 March 2020 provided for both parties to undertake urinalysis testing within 24 hours. The mother he asserts undertook the urinalysis test on 9 March 2020. The test results are not provided by him but he asserts that the testing was not by way of chain of custody. He makes no reference to him having complied with his obligations to undertake testing within 24 hours of the final orders.
Otherwise, the father expresses concern that the mother had dyed and/or bleached her hair on occasions asserting that the mother may have bleached or dyed her hair in contravention of the final orders of 5 March 2020.
The father relies upon the opinion of Dr WW, forensic toxicologist, who expresses an opinion that dying/bleaching/lightning of the hair will result in the degradation of the amount of drug within the hair follicle. Such degradation he opines is generally proportional to the number of occasions that he has been subject to such treatment but it is not possible to quantify or predict the magnitude of degradation but that it can be concluded that it is more likely than not that the concentration or amounts of drugs including alcohol in the hair follicle would be reduced by any of the said treatments. Otherwise, he opines that hair that would have been positive in the absence of treatment may have become negative as a result of the treatment thus resulting in the risk of a false negative.
The father, otherwise, has sought assurances from the mother and through her solicitors that the mother would not drink alcohol whilst the children are in her care and that she would take steps to seek support in not relapsing in the future. The father expresses concern that he is not receiving those assurances and has been informed that the mother does not accept his version of events or that the event alleged permits a suspension of the orders.
The parties had reached agreement to share the children during the July school holidays, with the children to be with the father in AK Town, New South Wales from Monday 6 July until Sunday 12 July 2020. The father on 2 July 2020 proposed that he collect the children on Friday, 3 July 2020 and that the mother have the children for her holiday in the AR Region from 12 July 2020 with the children to be returned to the father Friday, 17 July 2020.
The mother opposed the father’s change of plans as she had arranged for VV to have an end of term class party with all of his classmates and parents at her residence on 3 July 2020. Notwithstanding the father who that week had the care of the children did not send them to school on 3 July 2020 taking them with him to AK Town.
The mother later holidayed with the children and others in the AR Region. The children returned to school on 21 July 2020 and then in accordance with the shared care arrangement remained in the mother’s care until Friday 24 July 2020 when they moved to the father’s care.
On 10 September 2020 the father filed a short affidavit seeking further orders as referred to above. He again expresses concern about the mother’s lifestyle. He refers to the mother’s positive hair follicle test result of 4 June 2020 that has been referred to above. He expresses continuing concern as to the mother bleaching or lightning her hair. He expresses concerns that notwithstanding the mother has provided clear urinalysis tests that they have been undertaken by her at selective times so as to manipulate testing when she is not drinking.
However, he has observed the mother’s attitude and care towards the children “improve in circumstances where there is a spotlight on her lifestyle”. He says that she regularly FaceTime’s the children when they are in his care and will reach out to him in relation to the care and arrangements for the children.
The father further deposes to receiving a phone call from Mr XX on Saturday 22 August 2020 when the children were with the father. Mr XX asserts that the mother was drinking wine that evening and an incident occurred as a consequence of which Mr XX was arrested and was required with his partner to move out of the mother’s home. Mr XX in his short affidavit explained that he observed the mother drink at least four to five glasses of wine during a period of approximately two hours.
The father further asserts that on 3 September 2020 he observed the mother to be lethargic, her stance was hunched over with a red blotchy face, she was speaking quietly and her eyes were bloodshot. He asserts that he had seen the mother in a similar state previously when she had admitted to being hung over and that the children at that time were in her care. Regrettably, he does not say when that previous occasion was. He further asserts that on 6 September 2020 at 2.12 pm, when the children were in his care, he spoke to the mother by phone and he asserts that “she appeared to be under the influence of either drugs or alcohol as she was slurring her words when speaking to me”.
He expresses continuing concern especially when the mother was to receive significant capital payments that she would revert to her “party lifestyle and spend money on drugs and alcohol”.
Yet the children as at mid-September 2020 continued to be in a shared care arrangement with both parents. The father does not assert that the children have expressed any concerns as to circumstances within the mother’s home nor does he himself assert any direct observations of the mother with the children or the mother’s household over the period of months since the incident in late June that give rise to any concern save for the matters referred to above.
The mother’s evidence
The mother relied upon her affidavit sworn 21 July 2020.
The mother asserts that there has been no change in circumstances sufficient to warrant a revisiting of the final parenting orders as referred to above.
The mother asserts that she has been colouring her hair since 1995 going between blonde and brunette. She has maintained her blonde colour from 2015 to date and has attended regular hairdressing appointments to address regrowth, a circumstance known to the father. The mother asserts that her hair regime is much as it was prior to the final orders being made and that the final orders were drafted to accommodate her need for regular hair treatment whilst leaving a section of hair untouched for hair follicle testing regime which continues until December 2021.
As to hair follicle testing the mother asserts that on 26 May 2020 she met the father and showed him her hair evidencing that she had not died the bottom half of her hair since the date of the final orders. She exhibits a photograph of her head taken that day as confirmation. The mother made arrangements for hair follicle testing on 4 June 2020 and suggested that the father accompany her. He declined. The mother did not agree to the testing practitioner taking a photo of her hair as had been requested directly by the father’s solicitors as she did not wish to comply with the father’s “bullying tactics”.
On 11 July 2020 the mother, with the agreement of the father (evidenced by text messages between them), attended a hair appointment to have her hair returned to its natural colour so that it could grow out without unsightly regrowth.
The mother denies that she takes recreational drugs and further denies that she drinks to excess. She asserts that as a consequence of concerns relating to the father’s binge drinking she and the father agreed to mutual CDT testing in the context of final orders. She acknowledges that she and the father continue to drink alcohol but subject to the restrictions provided for in the final orders.
On 5 March 2020 the mother attended upon her general practitioner in accordance with the final orders and obtained a pathology referral for urinalysis testing. The mother attended at the pathology clinic later that afternoon to undertake both urinalysis and CDT testing. She was informed by the clinic that they did not have facilities for chain of custody urinalysis testing. The mother’s CDT test results were unremarkable.
Subsequently, the mother undertook various tests and they were provided to the father’s solicitors by email 10 March 2020. The results were unremarkable. That correspondence dated 10 March 2020 enquired as to the absence of the provision of any tests undertaken by the father in accordance with his obligations under the final parenting orders.
As to the birthday party for the child SS at her home, the mother provides a detailed history of what transpired on that day. None of it gives rise to any concerns as to risk or the safety of the children. Indeed, she asserts that the boxes depicted in photographs taken by the father without the mother’s consent were boxes of unopened alcohol. As to her own consumption she sets out the details of the consumption of alcohol and asserts that she would not have exceeded the alcohol limit proscribed in the final orders. She acknowledges that she fell asleep in front of the fireplace and felt Mr XX put his hand on her saying “you should go to bed mate”. The mother says she did not respond but later went upstairs to sleep, finding the children in her bed sound asleep. She did not wake the children but went to the next bedroom to sleep in the child VV’s bed.
The mother says that she was exhausted by the events of the day and the evening, but that she had arisen at 8.00 am the next morning as had the children. She says that at 10.30 am the father arrived at her home to collect the children YY and SS who both said they wished to stay with her for the day. The father agreed and the children stayed with her for the remainder of the day. Peculiarly, the father does not refer to this attendance at the mother’s home.
The mother says that other children that had stayed overnight were collected during the course of the morning and that after lunch she asked a friend to watch over the children so she can have a nap before the father collected the children that afternoon. She says that she did not hear any knock on her bedroom door or feel anyone try to wake her up while she was asleep.
Subsequently the next day Monday 29 June 2020 there were text messages exchanged between the father and the mother about schooling, school uniforms and the children’s mufti day on the Wednesday. There was no mention by the father as to any concern arising from the weekend. The mother asserts that later that afternoon she spoke to the father by phone about proposals for the children to attend private school and again there was no mention of any concerns arising from the weekend. It was not until about 2.00 pm on Tuesday, 30 June 2020 that the father expressed his disappointment and concern about the weekend seeking the mother’s assurances as to the future.
Subsequently, of her own volition, the mother attended for further urinalysis testing for drugs and alcohol on 2 July 2020. The results were unremarkable. The mother again attended upon her general practitioner for the purpose of a further urinalysis test on 10 July 2020. Again the results were unremarkable.
The mother describes the father’s interim application as “typical of Mr Bloxham as he has controlled and belittled me during our relationship, what I now know is called ‘gaslighting’ to undermine me and make me feel useless”. The mother says that she has sought assistance from a psychologist to deal with the father’s controlling, intimidating behaviour that caused her high stress and anxiety throughout the relationship. She complains that the father has continued to try and control her and her lifestyle.
The mother makes complaint as to the father’s unilateral actions during the July school holidays in not complying with the parties’ agreement as to school holiday time for the children between them, especially in circumstances where the child VV missed his end of term party with his classmates by reason of the father’s unilateral conduct in causing all of the children to miss school that day and taking them to AK Town.
Discussion
The subject children have fortunately, it appears, not been exposed to direct conflict between their parents. The CAPIA report reads positively in terms of the parents’ “shielding” the children from any such conflict.
The children have been engaged in the CAPIA process and at that time the report speaks relatively highly of the parents’ relationship with the children and their own inter-personal relationship.
The basis of the father’s application for re-opening the proceedings relate to issues that have been contemplated by the provisions of the final orders that, it appears, were carefully framed to address the concerns of both parents at that time.
On balance the father’s evidence is selective and seeks to misrepresent circumstances to his advantage. The mother’s evidence in contrast is measured and seeks to properly explain the matters asserted by the father. In some respects the father’s evidence does not tell the whole story that is supported by the objective material relied on by the mother.
There is relevantly a no substantial or significant change in the children’s circumstances. They continue to reside in a shared care arrangement as provided for by the parties in the final parenting orders.
The father appears to assert that the children are at such risk in the care of the mother that they should be removed from their historical primary caregiver and present shared caregiver to a circumstance of supervised minimal periodic time.
He proposes a regime of further testing and a Chapter 15 Expert Family Report writer with parenting proceedings to recommence and on present indications as to listing such proceedings would continue for another 18 months or so to final determination.
These children are, it appears, settled and, it seems, happy with the current parenting regime.
As Evatt CJ said in Rice & Asplund “[the court] …should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. 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 ”.
As Warnick J said in SPS & PLS (2008) FLC 93-363:
84...The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.
As Austin J observed in Judd & Pryor (No 2) “The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D (2))”.
The parties’ asserted difficulties with drugs and/or alcohol are intrinsically recognised in the final parenting orders made. The real issue is whether the circumstances as presently put forward by the parties represents a significant change in the circumstances of the children by reason of the issue of risk to the children such as to warrant a significant disruption to the settled living circumstances and the exposure of the children to further protracted litigation.
The children’s present circumstances including any assertions or suggested inferences as to risk are not indicative of any change to the present orders and there is little prospect of the present orders being varied in any significant way as a result of a new hearing.
Indeed, the final orders appears to contemplate that the issue of parental capacity and risk are intrinsic to the orders as made. Issues of risk in the present matter when looked at as a whole and on balance are not such that would warrant fresh parenting proceedings. That is not to say the issues of risk to the children in the future may not warrant an application by either parent in appropriate circumstances.
The present proceeding should be a timely reminder to the parties of their obligations under the final orders and what is expected of them when the children are in their respective care.
In the circumstances discussed above, there is no circumstance that would justify the re-litigation of parenting issues as sought by the father. Such would not be in the best interests of the children.
The father’s Initiating Application will be dismissed. Directions will be made as to any costs submissions.
Orders will be made accordingly.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 8 December 2020.
Associate:
Date: 8 December 2020
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