BONNER & LANCASTER

[2020] FCCA 2956

FEDERAL CIRCUIT COURT OF AUSTRALIA

BONNER & LANCASTER [2020] FCCA 2956

Catchwords:
FAMILY LAW – Application for parenting arrangements for child aged 10 – whether the rule of Rice & Asplund should be applied in circumstances where the parties consented to final orders in September 2017 – whether there has been a significant change in circumstances – whether the need to determine what is in the best interests of the child outweighs the need to avoid subjecting children to further litigation – matters to be considered – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss. 69ZN, 69ZQ

Cases cited:

Bennett & Bennett (1991) FLC 92-191

CDJ v VAJ (1998) FLC 92-828

In the Marriage of McEnearney (1980) FLC 90-866

King & Finneran (2001) FLC 93-079

Marsden v Winch (2009) 42 Fam LR 1

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16

Walter & Walter [2016] FamCAFC 56

Applicant: MR BONNER

Respondent: MS LANCASTER

File Number: ADC 1478 of 2020

Judgment of: Judge Brown

Hearing date: 9 October 2020

Date of Last Submission: 9 October 2020

Delivered at: Adelaide

Delivered on: 30 October 2020

REPRESENTATION

Counsel for the Applicant: Mr Wabnitz

Solicitors for the Applicant: Daniel John Lawyers

Counsel for the Respondent: Mr Childs

Solicitors for the Respondent: Nicholas Eid Lawyer

ORDERS

1. The application filed on 16 April 2020 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1478 of 2020

MR BONNER

Applicant

And

MS LANCASTER

Respondent

REASONS FOR JUDGMENT

Introduction

1. It is axiomatically the case that it is in the best interests of the children that arrangements for their care should be predictable and stable.  In basic terms, children benefit if they know where they are to live and when they are to spend time with loved ones and these arrangements are fixed and certain.

2. As a consequence of this principle, a rule of practice has been developed in the Family Law Courts to the effect that, resolved proceedings in respect of the care of children, should not be reopened unless there has been a significant change of circumstances relating to the child concerned.  Lawyers refer to this principle as the rule in Rice & Asplund.[1]

   [1]  Rice & Asplund (1979) FLC 90-725

3. Mr Bonner “the father” and Ms Lancaster “the mother” are the parents of X born 2010.  The father seeks to pursue further proceedings in respect of X’s care notwithstanding that there has previously been a lengthy and thorough investigation into what are the appropriate arrangements for her care.

4. On 29 September 2017 Judge Mead (formerly of this court) made final orders in respect of parenting arrangements for X.  At the time, Judge Mead had the benefit of a family report prepared by Ms A and X herself was represented by an independent children’s lawyer. 

5. The salient orders of 27 September 2017, which were made with the consent of the father and the mother and the approval of the independent children’s lawyer, can be summarised as follows:

   ·The parties be conferred with equal shared parental responsibility for X;

   ·X live with her mother;

   ·X spend time with her father throughout the year in alternate weeks from Thursday afternoon until the following Wednesday afternoon;

   ·X spend time with her father on special occasions such as Father’s Day and Christmas;

   ·The alternate weekly periods be extended, during school holidays, for periods of up to two days, on the father giving notice;

   ·Each party be restrained from consuming illicit substances or drinking alcohol to excess any time X is in their respective care;

   ·X was not to be left alone with a person known as Mr B, who is the father’s half-brother, without either the mother, the paternal grandmother or step-grandfather being present.

6. Accordingly, his application and the mother’s subsequent response were before the court for a period of just over six months. During this period, the Department of Child Protection, the state authority charged with the protection of children in South Australia, provided to the court a number of documents, relating to investigations concerning allegations of abuse of X. These documents were provided pursuant to the provisions of section 69ZW of the Family Law Act 1975.

The evidence provided during the 2017 proceedings

1. In his initiating application, filed on 7 March 2017, on both a final and interim basis, the father sought orders that X live with each of her parents on a week about basis.  At the time, he deposed that the relationship between the parties had begun in 2005 and ended in May of 2015. 

2. He conceded that the incident which had precipitated the parties’ separation involved him being violent towards the mother, in the context of him being severely intoxicated by a combination of ice and prescription medication. 

3. In the period following separation, notwithstanding this incident, the parties had shared the care of X on an 8/6 nights per fortnight basis, with X spending slightly more time with her mother. 

4. At this stage, the father conceded a significant history of drug and alcohol abuse but asserted that he had been clean since April 2016.  The basis of his criticisms of the mother can be summarised as follows:

   ·The mother was involved in illicit drug use and was good friends with the father’s old ice dealer;

   ·The father’s half-sibling, Mr B was living with the mother and in July of 2016, the father had become aware of Mr B posting images of himself cross-dressing, in a sexually explicit way, on Facebook, to which were attached lude and suggestive comments;

   ·In July/August of 2016, when X was around six years of age, he had noticed she was displaying sexualised behaviour.  As a consequence, he had referred X to Dr C, a counsellor;

   ·In late December of 2016, a friend of the father, identified only as Mr D, informed him that:

   o    The mother was using drugs;

   o    The mother was neglecting X;

   o    The mother was in a sexual relationship with Mr B.

5. The mother responded to this application in early April of 2017.  On both an interim and final basis, she sought orders that X live primarily with her and spend time with her father, on alternate weekends.  She conceded that, during the parties’ relationship, each of them had used illicit substances including heroine, hashish and prescription drugs.

6. In addition, the mother characterised the relationship between the parties as one characterised by coercive and controlling family violence emanating from Mr Bonner to her, whom she characterised as being mentally unstable.  She deposed that the father had attempted suicide and was the subject of a family violence order in her favour. 

7. Ms Lancaster denied being in a sexual relationship with Mr B but confirmed she regarded Mr Bonner’s mother, Ms E, as being an emotional support for her in the period since separation and Mr B himself as discharging an avuncular role for X. 

8. In addition, the mother provided a letter from the Department for Child Protection, the South Australia Government instrumentality responsible for the protection of children in South Australia, which indicated that the Department had investigated a notification that X had been subject to possible sexual exploitation, but had found the allegation to be unsubstantiated. 

9. The mother also provided a psychological report, prepared by Mr F, whom she had been consulting, with X, since July of 2015, particularly in the context of the parties’ difficult separation and how X was coping emotionally. 

10. Mr F reported that he had consulted not only the mother and X, but also Mr B and the paternal grandmother.  This included an examination of the Facebook postings made by Mr B, which Mr F described as crazy irrelevant antics. 

11. In this context, Mr F was concerned that Mr Bonner was attempting to exploit the material in the context of acrimonious proceedings between him and the mother, which in turn had the potential to be abusive of X, given the appropriate emotional importance of her relationship with her uncle.

12. In particular, Mr F reported as follows:

    “An issue here is that any crazy irrelevant antics on Face-book remain carefully disassociated from Mr B’s very important role with X and I am satisfied with his absolute commitment to this need from this point.  Distorted exploitation of unfortunate tangential humour remains a potential problem for X, yet I am satisfied with Mr B’s commitment, now it is realized, to absolutely minimize the potential for people to damage X by exploiting his Facebook antics into the future.

    I have given specific attention to the issue of whether there is sexually exploitive functions of damage to X from within the extended family around X and her mother.  I do this from 44 years of experience within this field of Child Development and Abuse.  There are no indicators that this is the direction from which problems arise.”[2]

    [2]  See the report of Mr F annexed to the mother’s affidavit (at annexure E) filed 7 April 2017 at paragraphs 16(e) – (f)

13. It was Mr F’s opinion that the mother was appropriately parenting X and was cognisant of the need for her to maintain a proper level of relationship with her father.  In addition, he considered that Ms Lancaster had put in place appropriate measures to ensure X’s ongoing emotional health. 

14. Ms Lancaster was also subject to a random supervised drug screen test, which took place in mid-April of 2017.  This was negative for all illicit substances.  It was in the context of these bitterly contested and multi-faceted proceedings that the court appointed an independent children’s lawyer for X; ordered the preparation of a family report; and directed that all relevant documents regarding the notification of child support, in respect of X, be provided to the court. 

15. The family report was prepared by Ms A, in August of 2017.  Ms A interviewed each of the parties, Mr B, Mr F and Dr C, whom, as previously indicated, the father had engaged in controversial circumstances. 

16. To Ms A, X described her family as consisting of her dad, mum, grandmother and uncle.  She further described enjoying the time she spent with Mr B and was observed to interact with him in a happy fashion. 

17. In her evaluation of the family, Ms A noted that although the case was replete with issues to do with illicit substance abuse, poor mental health and violence, neither party expressed overt concern regarding these matters, as the main issue in dispute between them was the involvement of Mr B in X’s life.

18. In this context, the father was reported as remaining firm in his view that Mr B constituted a risk to X; whilst Ms Lancaster denied this, whilst maintaining that he (Mr B) was the source of considerable support for both herself and X.

19. Ms A also noted that Mr Bonner had a history of compromised mental health, although the evidence then available indicated his psychological status was stable, but he remained estranged from his mother and half-sibling.

20. As previously indicated, from the mother’s perspective, supported by the opinion of Mr F, X had a close and appropriate relationship, with both her uncle and paternal grandmother, who were also sources of considerable support for Ms Lancaster herself.

21. In this context, Ms A reported as follows:

    “As noted, information provided by X during the assessment did not identify any issues of concern in relation to her interactions with Mr B.  Her interactions with Mr B, as well as both parties, were considered appropriate, relaxed and genuine in nature.  Mr B denied having abused X but did acknowledge the Facebook pictures of concern.  While these pictures were considered obscene and inappropriate, it did not appear X had been exposed to them or involved in any way.”[3]

    [3]  See Family Report annexed to mother’s affidavit filed 10 August 2017 at paragraph 88

22. As a consequence, Ms A recommended that the parties should share parental responsibility for X, and the current arrangement whereby she spends six nights per fortnight, with her father, should continue. 

23. Ms A also recommended that X not be left in the unsupervised care of Mr B and each party be restrained from using illicit substances.  Finally, Ms A did not consider that X herself would benefit from any further therapy from either Dr C or Mr F.

24. This was the background to the parties agreeing to the matter being finalised, essentially along the lines recommended by Ms A, on 27 September 2017.  Judge Mead (as Her Honour then was) made the relevant orders on 27 September 2017.

The current application

1. The father commenced these proceedings on 16 April 2020.  As previously indicated, he seeks orders that he be conferred with sole parental responsibility, for X, and she live with him.  He also seeks an order that he be authorised to obtain counselling for X and that she be restrained from coming into any form of contact whatsoever with Mr B.

2. In support of this application, he prepared an affidavit of just over 50 short paragraphs.  Approximately half of the affidavit deals with the parties’ relationship up to separation and reprises the Facebook postings of Mr B; the allegations of sexual behaviour attributed to X in mid-2016; and the involvement of Dr C.  It is implicit in the father’s evidence that he remains estranged from his mother and half-sibling.

3. In addition to these historical complaints, the father deposed that, whilst he had conquered his past drug abuse issues, the mother continued to regularly consume methamphetamines and cannabis.

4. In this context, Mr Bonner deposed that, on 8 November 2019, whilst attending a Narcotics Anonymous meeting, he had had a conversation with an unnamed person, who had told him that he (the unnamed person) had personally observed the mother to use illicit drugs and he further believed that she was part of a social coterie, who sold and abused drugs.  This hearsay information was the catalyst to the father applying for legal aid to re-institute proceedings. 

5. In addition, the father deposed that X had been restless and needy, whilst in his care in October of 2019.  He also alleged that the child had been incontinent, which he attributed to emotional stress presumably stemming in some way from the mother or her conduct.

6. Counsel for the father, Mr Wabnitz, submits that his client has established four inter-related matters, which justify the court revisiting the orders of Judge Mead made in September 2017.  These issues are as follows:

   ·The mother continues to abuse illicit drugs, as evidenced by the statements of the unidentified attendee at narcotics anonymous;

   ·The child’s bedwetting;

   ·The mother’s continued involvement with Mr B and suspicion that the mother has formed some intimate relationship with him;

   ·The fact that the current orders do not enable him easily to spend extended holiday time, with X, and this leads to conflict between him and Ms Lancaster and this is not helpful to X.

7. The mother responded to the father’s application on 5 August 2020.  She opposes the father being granted leave to pursue his application and is open to the current regime continuing.  She is supported in this application by the paternal grandmother. 

8. The mother denied being in a romantic or sexual relationship with anyone, particularly with Mr B, whom she described as her friend and brother-in-law.  She further denied that she had ever seen Mr B cross-dress or act or behave inappropriately towards X.  She denied any current drug use. 

9. In respect of X’s alleged incontinence, she deposed that the child had never wet herself at school or in public, whilst in her mother’s care and Mr Bonner had not ever discussed these issues with her directly. 

10. The paternal grandmother has also filed an affidavit in support of the mother in which she described X in the following terms:

    “She is a normal well-adjusted child with a great sense of fun and loves to dance and create things and be involved in social events.”[4]

    [4]  See affidavit of Ms E filed 6 August 2020 at paragraph 23

11. The mother did not deny that she was currently living with Ms E at Ms E’s home located at Town H.  She deposed that she had lived there since 18 June 2020 and shared the accommodation with Ms E, her partner, Mr G and Mr B.  She was occupying these premises until she could find her own accommodation for herself and X.

12. Mr Bonner has not been able to muster any concrete evidence that establishes Ms Lancaster is currently utilising drugs.  In addition, he is unable to establish that Mr B has behaved in an inappropriate manner towards X.  In my view, his case is based entirely on supposition and innuendo. 

13. In this context, Ms E has deposed as to the poor relationship between Ms Lancaster and the father and has indicated that the mother herself continues to be fearful of Mr Bonner.  It is the paternal grandmother’s view that Mr Bonner has underplayed the significance of his violent behaviour, which lead to the end of the parties’ relationship with one another. 

Legal principles to be applied

1. In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration.  As the circumstances of the parties change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances. 

2. However, some degree of change is a necessary corollary of life and should not of itself allow final parenting orders to be easily revisited.  Otherwise, to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation. 

3. For that reason, a court will not readily re-open a case concerning parenting orders recently made.  There needs to have been a substantial change in circumstances before a court will do so.  This is the basis of the rule in Rice & Asplund.[5]

   [5]  See Rice & Asplund (1979) FLC 90-725

4. The primary purpose of the rule in Rice & Asplund is to prevent “endless litigation”[6] and is based on three main pillars.  Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”[7].

   [6]  See Rice & Asplund (supra) per Evatt CJ at 78,905

   [7]  See SPS & PLS [2008] FamCAFC 16 at paragraph 56

5. Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer, on the basis of the same factual circumstances.[8]

   [8] Ibid at paragraph 58

6. Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led.  The rule negates this potential outcome.

7. Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements.  Litigation is not helpful to children.

8. It is desirable that arrangements for their care be stable and so final.  For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[9]

   [9]  See CDJ v VAJ (1998) FLC 92-828 at 85,449

9. In this context, it has been said that the court should not condone a “perennial football match between parents, who … seek to canvass again and again the question of custody of a child …”[10]  The litigation, in this case, has been protracted, expensive and time consuming.

   [10]  See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS (supra) per Warnick J at paragraph 57

1. It is clear from authority that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances, to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[11]

   [11]  See Bennett & Bennett (1991) FLC 92-191 at 78,262

2. However, as Warnick J pointed out in SPS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage.  If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.[12]

   [12]  See SPS & PLS (supra) at paragraphs 59-60

3. Given that the court will often be called upon to apply the principle expressed in Rice & Asplund at a preliminary stage, without any full exploration of the parties’ concerned evidence, care must be taken with its application at such a stage.  It is not a rule which is to be applied formulaically.

4. Rather, the court must examine the evidence available and determine whether, at its highest and without determining its veracity, such evidence demonstrates a sufficient change of circumstance to justify the court embarking upon a full and exhaustive hearing.

5. Warnick J put it as follows:

   “…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination ‘on the merits’. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing.  Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”[13]

   [13] Ibid at paragraph 81

6. It will frequently be the case that there is much controversy between the parties concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings.  This issue must be determined within the matrix of Part VII of the Family Law Act 1975.

7. The question essentially being whether it is likely to be in the children’s best interests to allow further litigation.  In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation.

8. In arriving at its decision, the court must look to the following matters:

   ·the importance or seriousness of the issues raised, both individually and where necessary collectively;

   ·the impact that the issues are likely to have on the best interests of the children concerned;

   ·whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.[14]

   [14]  See Marsden v Winch (2009) 42 Fam LR 1

9. The test is a strong one.  The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties.

10. That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made.  That would be putting the test too strongly.  Rather, the change of circumstances must be such that there is a “real likelihood” of a change.[15]

    [15]  See King & Finneran (2001) FLC 93-079 at 88,367

11. In SPS it was said that the “essential question” for the court to pose itself concerned the “sufficiency” of the new events, which were said to precipitate the need for a new inquiry.  In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps, which might follow from them.[16]

    [16] Ibid at paragraph 84

12. In Walter & Walter[17] the court in its discussion of this issue noted with approval the reasons of the Full Court in Marsden & Winch:[18]

    “Nevertheless, there are significant changes that occur 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.”

    [17]  See Walter & Walter [2016] FamCAFC 56

    [18]  See Marsden & Winch (supra) at 51

13. Further, May, Ainslie-Wallace & Murphy JJ went on to say:

    “Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.”

Discussion

1. I am satisfied that there was a thorough investigation of the various issues, raised by the father, in respect of the allegations of anti-social and predatory behaviour centring on the conduct of Mr B, in the proceedings concluded in September of 2017.

2. These issues were investigated in a family report and were the subject of inquiries by two different psychologists.  More importantly, the father was willing to compromise the proceedings on the basis of the injunctions offered by the mother, at the time.

3. It is not my function to comment on Mr B’s behaviour or pass judgment on it, other than in respect of its potential to cause harm for X.  In this context, it is noteworthy that Mr Bonner has annexed the same Facebook material that was before the court in 2017. 

4. In these circumstances, it is difficult not to conclude that the material has been recapitulated by him, in a fresh round of proceedings, in the hope that, given its potentially confronting nature, it may influence a different judicial officer to reach a different conclusion about Mr B and so change the 2017 orders.  As such, it is not a new issue.

5. In my view, Mr Bonner has not been able to point to any new or compelling evidence relating to Mr B’s conduct or behaviour, which justify the re-opening of the settled arrangements for X’s care.  The issue was thoroughly canvassed in the earlier proceedings and Mr Bonner himself, in the light of that consideration, consented to orders which authorised X to come into contact with her uncle provided certain stipulations were met. 

6. Mr Bonner has not provided any concrete evidence that the conditions relating to X’s interactions with her uncle have been breached in the period since, other than that Mr Bonner asserts that X has been beset with behavioural issues recently.

7. The parties have diametrically opposing views regarding the seriousness of X’s bedwetting.  By necessary implication, the father asserts that it is indicative of some significant level of psychological insult being suffered by X, which he believes arises because of some form of misconduct related either to the mother or to Mr B.  However, at this juncture, he is not able to provide any definitive expert evidence to support his supposition.

8. In this sense, I am concerned that his application represents something of a fishing exercise.  Essentially, Mr Bonner hopes, with the commencement of court proceedings, something adverse may be revealed about Ms Lancaster to support his suspicions and this, in turn, will lead to the cessation of the current regime. 

9. I concede that it is impossible for the court to rule out definitively the possibility that X is currently suffering some level of emotional distress.  In general terms, her distress, if indeed she is suffering any such condition, may be the consequence of many factors.

10. However, it is not necessarily the role of the court to conduct an inquiry into inchoate concerns or ones based wholly on conjecture, particularly if that conjecture arises following an earlier inquiry and the parties concerned have the sort of parenting relationship which supports suspicion and hostility to be generated between them.

11. It is in this sort of context that the court must endeavour to balance the potential seriousness of the issue raised with any possible detrimental impact on the child concerned.  The evidence available to me indicates that, in the past, Ms Lancaster has responded appropriately to any signs of emotional distress exhibited by X through engaging appropriate counselling for her, as is evident from Mr F’s earlier report.

12. It is generally recognised that litigation, regarding arrangements for their care, is not helpful for children. This concept is endorsed by the various principles contained in Division 12A of Part VII of the Family Law Act 1975, which provides guidance for the court as to how it is to conduct child related proceedings.

13. Pursuant to section 69ZQ the court is authorised to determine which issues in proceedings require full investigation.  Also germane to this consideration is the potential cost of taking any particular step in a proceeding.

14. In section 69ZN, the legislature has specifically enumerated five principles, to which the court must give effect in conducting proceedings relating to the care of a child. In my view, of specific relevance to a case of the current kind are Principles One and Four.

15. The former directs the court to consider the potential impact on a child of proceedings; the latter directs the court to consider conducting the case in a way which will promote child-focussed and cooperative parenting between the parties concerned.

16. Considerations of this kind neatly segue into the common law principles arising from the rule in Rice & Asplund.  I do not consider that issues relating to the possible causes of X’s incontinence, the existence of which is disputed, warrant the kind of investigation envisaged in highly adversarial proceedings.

17. This is particularly so given such proceedings have the potential to pit parents against one another, at great expense, either to the parties personally or the public purse, through the provision of legal aid.  It is my view that such proceedings are not likely to be helpful for X, given that she is currently parented in a shared care regime.

18. The same can be said of the allegations concerning Ms Lancaster’s drug use.  This again was an issue canvassed in the earlier proceedings, in which the drug abuse of both parties was in issue, although the parties themselves indicated to Ms A that neither thought it was a matter of the upmost primacy.

19. Again, the issue is raised by Mr Bonner, on the basis of second hand or indirect evidence, and is not supported by any direct concern which can be sheeted home to the mother through some explicit example of mal-parenting.  In my view, it is based on innuendo.  It is noteworthy that the confidant concerned is not identified and has not provided an affidavit.

20. The hearsay allegations of drug use, by an unidentified informant, are not of sufficient moment to justify a wholesale re-examination of the comparatively long standing arrangements for X’s care.  This is particularly so when the potential cost of such proceedings is considered alongside the possible emotional consequences for X.

21. Finally, Mr Bonner complains that the current regime is unclear about how school holidays are to be allocated and this, in turn, stokes the rancour between the parties.  I agree that anything that adds to the potential for disputes to arise between the parties is not likely to be helpful to X.

22. However, in my view, dysfunctional parenting, in itself, cannot be a ground for re-opening previously concluded child-related proceedings.  It is clear that the parties have had a difficult relationship since at least the time of their separation.  This state of affairs continued throughout the 2017 case and no doubt extends to the present time.  Further proceedings are unlikely to ameliorate this state of affairs.  Rather, any prospect for improvement lies in the hands of the parties themselves.

23. In any event, the orders of 2017 do provide a mechanism for extending time during school holidays and envisage interstate travel.  The orders may not be perfect but this imperfection, in my view, does not justify the expense and the risks implicit in X being the subject of more acerbic litigation.

24. I accept that the various issues raised by Mr Bonner are to be regarded as subjectively important to him.  However, I must make the necessary assessment of these matters in an objective fashion, considering them both individually and collectively against all the evidence available, whilst weighing them in the balance against the potential prejudice to X.

25. Having considered all these matters, I do not consider that it would be in X’s best interests for the court to sanction a further tranche of proceedings in respect of her care, given the substance of the issues raised by Mr Bonner formed the subject matter of his earlier application.  Accordingly, his application filed on 16 April 2020 is dismissed.

26. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment

I certify that the preceding ninety one (91) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate:

Date: 30 October 2020