Bronson and May (No.2)
[2017] FCCA 2317
•25 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRONSON & MAY (No.2) | [2017] FCCA 2317 |
| Catchwords: FAMILY LAW – Final parenting orders made in 2015 providing for the father’s time with the children to be supervised or with a person in substantial attendance subject to agreement by the mother – final orders do not provide for a review mechanism of supervision arrangements – the father filed Initiating Application for new parenting orders – the mother seeks that the Initiating Application be dismissed on basis of Rice and Asplund principle – held that it is in the best interests of the children to allow litigation to re-commence. |
| Legislation: Family Law Act 1975, s.60CC |
| Cases cited: Bronson & May [2015] FCCA 82 Carriel & Lendrum [2015] FamCAFC 43 Marsden & Winch [2009] FamCAFC 152 Miller v Harrington [2008] FamCAFC 150 Moose v Moose [2008] FLC 93-375 Poisat & Poisat [2014] FamCAFC 128 Rice and Asplund (1978) 6 Fam LR 570 Searson & Searson [2017] FamCAFC 119 |
| Applicant: | MR BRONSON |
| Respondent: | MS MAY |
| File Number: | DGC 2781 of 2011 |
| Judgment of: | Judge Jones |
| Hearing date: | 21 July 2017 |
| Date of Last Submission: | 21 July 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 25 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stanley |
| Solicitors for the Applicant: | Kenna Law Barristers & Solicitors |
| Counsel for the Respondent: | Ms LaGreca of Pentana Stanton Lawyers |
| Solicitors for the Respondent: | Pentana Stanton Lawyers |
ORDERS
The Mother’s application contained in her Response filed on 3 February 2017 to dismiss the Father’s Amended Initiating Application filed on 20 February 2017 be dismissed.
The proceedings are adjourned for mention on 7 December 2017 at 9.30am.
IT IS NOTED that publication of this judgment under the pseudonym Bronson & May (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2781 of 2011
| MR BRONSON |
Applicant
And
| MS MAY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 16 January 2015, Judge Phipps made final orders (“the 2015 Final Orders”) in relation to the future parenting arrangements for the children X born (omitted) 2008 (“X”) and Y born (omitted) 2009 (“Y”) (collectively “the Children”). Their parents are Mr Bronson born (omitted) 1979 (“the Father”) and Ms May born (omitted) 1982 (“the Mother”).
The 2015 Final Orders provided relevantly for the purpose of this decision, that the Mother have sole parental responsibility for the Children, that the Children live with the Mother, and that the Father spend supervised time with the Children at a children’s contact centre nominated by the Mother, or the time be supervised by a person approved in writing by the Mother or by a person approved in writing by the Mother being in substantial attendance (“the Supervision Orders”).
The Supervision Orders provide as follows (Bronson & May [2015] FCCA 82) (“Bronson & May”):
4. That the children spend time with the [Father] as follows;
(a) if one is available, at a supervised contact centre nominated by the [Mother] at such times as the Centre can provide; and
(b) subject to paragraph 5, for four hours at a time by agreement in writing between the [Father] and the [Mother].
5. Any time spent by the children with the [Father] must be supervised by a person approved in writing by the [Mother] or by a person approved by the [Mother] being in substantial attendance. The written agreement and approval, in addition to being in writing, may consist of a text message or email, and must specify whether the person approved is to supervise or be in substantial attendance.
6. For the purpose of any time the children spend with the [Father] changeover shall take place at a supervised contact centre nominated by the [Mother] or otherwise at a place and in a manner nominated by the [Mother] in writing including by text message or email.
It is to be noted that there was no provision in the 2015 Final Orders for a review mechanism of the supervised time. At the time that the 2015 Final Orders were made, X was aged six and a half years and Y was aged five and a half years.
The 2015 Final Orders reflected the decision of his Honour, delivered on the same day (Bronson & May). The 2015 Final Orders were not the subject of appeal by the Father. Both parties were legally represented.
Judge Phipps described the parents’ back ground as follows (Bronson & May at [2]):
2. The [Mother] has a child by a previous relationship, A born (omitted) 2002 who lived with the parties during their relationship. The parties commenced cohabitation in (omitted) 2006. They married on (omitted) 2007 and separated on 16 January 2011. Since then all three children have lived with the [Mother].
On 22 July 2016, the Father filed an Initiating Application that in essence sought unsupervised time with the Children. On 20 February 2017, the Father filed an Amended Initiating Application which sought orders that progressively increased the Father’s time with the Children as follows:
(a)until 30 November 2017, the Father’s time with the Children be supervised at the Father’s home for four hours each fortnight on a weekend day;
(b)from 1 December 2017 until 28 February 2018, the Father spend time with the Children for four hours each fortnight on a weekend day with a supervisor to be in substantial attendance; and
(c)from 1 March 2018, the Father spend unsupervised time with the Children for at least eight hours per fortnight, with such time progressively increasing to alternate weekend time and half school holidays from 1 July 2018 onwards.
The Mother seeks orders dismissing the Father’s Amended Initiating Application filed on 20 February 2017 at the preliminary stage, based on the decision in Rice and Asplund (1978) 6 Fam LR 570 (“Rice and Asplund”).
Rice and Asplund principle
In Rice and Asplund, which gave rise to the so-called “rule” or “principle” about re-visiting parenting orders, Evatt CJ said of the position of a Court confronted with an application to change an earlier order (Rice and Asplund at 572):
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, to quote Barber J., 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…These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.
(Citations omitted)
Her Honour Evatt CJ continued and said that (Rice and Asplund at 572) “[o]nce the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way”.
It is clear from a review of the authorities that the consideration of the Rice and Asplund principle may occur at any stage of proceedings.
In relation to those principles, in Marsden & Winch [2009] FamCAFC 152 (“Marsden & Winch”) the Full Court of the Family Court of Australia said (Marsden & Winch at [41]-[50]):
41. Warnick J in SPS & PLS (2008) FLC 93-363 said at [1]:
The “rule” in In the Marriage of Rice and Asplund…that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
42. The application of the rule was again described by Warnick J in [45] – [49] inclusive. Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment (at 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
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, to quote Barber J., 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
43. Evatt CJ went on to say that the threshold question was not necessarily one for preliminary determination.
44. As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
45. Warnick J opined in SPS & PLS (supra) that:
58. Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
46. Warnick J had earlier said at [48]:
In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle.”
(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits.”
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) “Shorthand” statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
47. We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
…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.
48. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49. However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
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.
(Citations omitted from [49])
(Emphasis in original)
The Full Court of the Family Court of Australia has considered the principle in Rice and Asplund in Poisat & Poisat [2014] FamCAFC 128 (“Poisat & Poisat”), and relevantly stated (Poisat & Poisat at [39]):
39. As to the submission that her Honour adopted a “two options approach” and that such an approach, if adopted, was “erroneous”, this Court made clear in Miller & Harrington, that the “rule in Rice and Asplund” might be applied either “at a preliminary stage” or at another stage of parenting proceedings (see, for example, [72]). That conceptualisation of the “rule” is entirely consistent with what the High Court said in the unreported decision in Lowe, referred to earlier in these reasons. Mason CJ said (at p 11):
…It may be that in some cases the judge, in order to evaluate how strong the case is in relation to change of circumstances, needs to do little more than read the affidavits. He may need to have the benefit of cross-examination of some of the witnesses in order to evaluate how strong the case for change of circumstances appears to be. It seems to me that each case must be tailored to its own circumstances and an approach worked out which in the mind of the primary judge is best for that particular case.
(Emphasis in original)
Finally, the principle in Rice and Asplund was considered by the Full Court of the Family Court of Australia in Carriel & Lendrum [2015] FamCAFC 43 (“Carriel & Lendrum”). In that case, the issue was whether, when in applying the rule in Rice and Asplund, it is necessary to address in detail, or even at all, the factors in s.60CC of the Family Law Act 1975 (Cth) (“the Act”) arose. The Full Court addressed that issue as follows (Carriel & Lendrum at [49]-[61]):
49. Ground 2 raises an interesting question, and one that we feel has not been directly answered by a court to date. That question is whether when applying the principle in Rice & Asplund, it is necessary to address in any detail, or even at all, the factors for determining what is in a child's best interests contained in s 60CC of the Act?
50. A prime example of what has been said to date in relation to this question is what Warnick J said in SPS & PLS (at [48(iii)]), namely:
At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’.
51. This was echoed by the Full Court in Miller & Harrington where their Honours said this (at [72]):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
52. As can be seen these pronouncements do not provide a direct answer to the question posed above.
53. However, the Full Court in Poisat & Poisat (2014) FLC 93-597 did take the issue one step further in saying at [42], it is readily apparent that
…while the nature of the hearing undertaken at either stage will have the best interests of the relevant child/ren as its paramount consideration (s 60CA [of the Act]), the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case.
54. We consider that that statement fits neatly with what Warnick J also said in SPS & PLS set out above at [30], and with what Nygh J, with whom Barblett and Fogarty JJ agreed, said in the Full Court decision of Newling & Newling; Mole (Applicant) (1987) FLC 91-856 at 76,467:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. …
55. This approach is also consistent with the recent pronouncement by the Full Court in SCVG & KLD (2014) FLC 93-582 to the effect that the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.
56. This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie.
57. In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
58. Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
… Though sometimes unstated, the underlying conclusion will or ought to 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.
59. This approach, when the principle in Rice & Asplund is in play, can also perhaps be seen as a product of the related question of whether an order dismissing an application on the basis of the principle in Rice & Asplund is a parenting order or not. If it is a parenting order then the Act requires a consideration of all of the factors that bear upon the best interests of the child. This has been touched on in several cases. For example in SPS & PLS Warnick J said this:
77. An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:
Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
78. Authority supports this view. Speaking of the rule in Rice and Asplund, Nygh J with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling and Mole (1987) FLC 91-856 at 76,467 [quoted earlier in these reasons]…
(Emphasis in original)
60. This issue was taken up by the Full Court in Poisat where their Honours said this:
53. The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the relevant child’s best interests.
54. Her Honour did so. However, we have considerable doubts as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in
s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made.
61. For our part, we agree with the comments of Warnick J in SPS & PLS and the Full Court in Poisat, and we seriously doubt whether an order dismissing an application such as the mother’s here is a parenting order. We are not able to come to a concluded view though because we have not heard any argument directed to this issue.
The approach of the Court to the evidence of an applicant seeking to commence litigation was recently considered in Searson & Searson [2017] FamCAFC 119 (“Searson & Searson”). Justice Kent, concurring with the leading judgment of Justice Murphy, said as follows (Searson & Searson at [60]):
60. In considering the application of the so called rule in Rice & Asplund at the preliminary stage of the proceedings in which the primary judge did in this case, her Honour was bound to assume the acceptance of the mother’s evidence on the question of whether a sufficient change in circumstances was demonstrated. I agree with his Honour’s observations that [24], [25] and [26] of her Honour’s Reasons for Judgment demonstrate error in this respect. On the mother’s evidence it is clear that the mother demonstrated a substantial change in circumstances via the nature and quality of the relationship with her present partner and in respect of her financial circumstances.
This issue was considered earlier in Marsden & Winch, where the Full Court of the Family Court of Australia quoted with approval the observations of Warnick J in SPS & PLS [2008] FamCAFC 16 (“SPS & PLS”) (Marsden & Winch at [47], extracted in full at [12] above). The Full Court then went on to say (Marsden & Winch at [57]-[58]):
57. In Miller & Harrington (supra) the Court posed the question:
105. Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
58. That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
In my opinion, the authorities relevantly make it clear that when applying the principle in Rice and Asplund:
(a)the underlying basis for the Court’s consideration is the best interests of the child (see Warnick J in SPS & PLS at [48] and Miller v Harrington [2008] FamCAFC 150 at [72]); and
(b)the Court is not confined to considering the principle as a preliminary matter. It may be appropriate to consider the principle at a later stage, once litigation has commenced. That is to say that, while there are occasions where it is clear that the best interests of the child will be served by dismissing an application at a preliminary stage, there are also occasions where it is impossible to be sure at an early stage whether it is in a child’s best interests to allow litigation to continue. The child’s best interests may be better served upon obtaining some further information before finally determining whether to dismiss the application pursuant to the rule in Rice and Asplund.
The parties’ submissions and evidence
Both parties, who are legally represented, have provided helpful Outlines of Submissions in accordance with my Orders. Both Outlines of Submissions were addressed by Counsel in oral submissions.
The Father relies on two affidavits filed by him; one filed on 22 July 2016, and the other filed on 21 June 2017. The Father also relies on an affidavit filed by Ms A (“Ms A”) on 6 March 2017.
The Mother relies on her affidavit filed on 3 February 2017, and a report prepared by Ms S (“Ms S”), the professional supervisor of the Father’s time with the Children, dated 29 January 2017, which is marked as Exhibit M1.
The Father’s submission that the Court should allow the commencement of litigation in relation to his time spent with the Children is as follows:
(a)first, the Court is obliged to re-examine parenting orders when such orders do not provide a review or transition mechanism of final orders for supervised time. The Father relies for this proposition on the decisions of the Full Court of the Family Court of Australia in Slater v Light [2013] FamCAFC 4 (“Slater v Light”) and Moose v Moose [2008] FLC 93-375 (“Moose v Moose”). These decisions are considered below at [50]-[52];
(b)second, the fact that there has been a change in the diagnosis of the Father’s mental health since the 2015 Final Orders were made; and
(c)third, the lengthy supervision of his time with the Children by Ms S of (omitted) Family Mediation (Children’s Contact Service) in accordance with the 2015 Final Orders, and Ms S’s views about alternative arrangements for supervised time.
With respect to the Father’s mental health, Judge Phipps records in his decision (Bronson & May at [66], [85]):
66. On 19 November 2013, and so prior to the order of 21 November 2013, the [Father] filed an affidavit from his psychologist Ms L. Annexed to the affidavit are letters dated 8 June 2012 to October 2012, 28 June 2013 and 22 October 2013. The letter of 8 June 2012 shows that the [Father] was referred to Ms L by his general practitioner on 17 January 2013 for psychotherapy to address symptoms of depression and Bipolar Disorder. In the letter of 8 June 2012 Ms L says that she has read the reports from Dr C and Dr S and agrees with the diagnosis of Bipolar II Disorder Depressed Moderate Atypical Features. Ms L concludes the letter with the statement that in her opinion the [Father] has the capacity to move forward with graduated reintroduction to unsupervised access, with the proviso that he continues with counselling and is compliant with medication.
…
85. The [Father’s] condition of bipolar disorder was apparently diagnosed by Dr S and the [Father] was prescribed medication. Dr S’s report is not part of the evidence. The [Father’s] evidence is he takes the medication. There is no evidence from any current treating medical practitioner about the [Father’s] current mental health, any medication prescribed by the [Father] or the [Father’s] compliance in taking the medication. He last saw his psychologist in mid-2013. The only recent professional assessment is that of Ms J which is unfavourable to the [Father’s] case. If the [Father] does have a current treating medical practitioner I must infer that any assessment by that medical practitioner would not be more favourable than that of Ms J.
I note that Ms J was the Family Consultant, whose recommendations in the Family Report dated 22 April 2014 (“the Family Report”) prepared in these proceedings were that the Father spend four hours of unsupervised time at the Paternal Grandmother’s house with the Children until he completed a parenting program and a behavioural change program (Family Report at 27). Once the Father completed these programs, Family Consultant Ms J recommended that consideration be given to the Father spending one whole day with the Children each alternate Saturday.
The Father relies on correspondence dated 3 February 2015 from Dr B (“Dr B”) to the Father’s general practitioner, Dr D (“Dr D”), in which Dr B reviews the Father’s psychiatric history, including the Father’s diagnosis of Bipolar Affective Disorder. Dr B opines that the Father’s conduct, including anger issues and violence, likely reflected his intellectual difficulties rather than a history of Bipolar Affective Disorder. Dr B relevantly says that (Exhibit B3 to the Father’s affidavit filed on 22 July 2016 at 2):
His apparent intellectual difficulties are likely to make him more frustrated than the average person and more likely for him to get upset and angry unless he has been taught how not to do this. Similarly, having a history of severe childhood trauma as he did causes affective instability with periods of dysphoria and anger, usually lasting a few hours to a day or two interspersed with periods of being flat or okay. This is often misdiagnosed as bipolar disorder and would easily explain the presentation as he told it to me today. There may of course be things he has not told me. However, the fact that he has never been admitted to hospital, that he has no family history of bipolar disorder, that he has never taken drugs and that he had no obstetric complications argue very strongly against a history of bipolar affective disorder…
The Father also relies on correspondence dated 4 May 2016 to Dr D from Dr B, in which Dr B reports from his interview with the Father that (Exhibit B4 to the Father’s affidavit filed on 22 July 2016 at 12):
There is no depression, no anxiety, certainly no bipolar disorder (because he does not have it) and his anger has been “much, much better controlled”. He admitted to only two episodes lasting a few seconds only. On each occasion he was able to calm himself down straight away. No one has witnessed him having any anger attacks. Of course I had no collateral historian today so it would be important to check with other people who know him.
…
In summary, I did not see any evidence of mental disorder with [the Father] other than what I outlined in the previous letter with regard to a possible low frustration tolerance secondary to borderline intellectual difficulties and also possibly some anger and mood issues in relation to childhood trauma. He reports that none have been significant over the last year. He is on no medication and I do not think he needs it.
(Emphasis in original)
The Father deposes in his affidavit filed on 22 July 2016 at [9] that he continues to work under the supervision of Dr B.
In his affidavit filed on 22 July 2016 at [6]-[7], the Father deposes that supervision by Ms S commenced in June 2015, and continued for a period of one year. Counsel for the Father stated in oral submissions that there were 34 supervised sessions and relies on correspondence from Ms S to support the assertion that the independent evidence available is that supervision has proceeded well, and that an alternative arrangement for supervision (namely, at the Father’s home) would be in the best interests of the Children (see [28] below). Counsel for the Father submitted that the 2015 Final Orders preclude any change in the supervision arrangements, unless agreed to by the Mother. Counsel for the Father claimed that the correspondence from Ms S reveals that the Mother has not been prepared to consider alternative supervision arrangements, even upon the recommendation of a professional supervisor.
The first piece of correspondence relied upon is an email sent from Ms S on 19 November 2015 to the Father. In that email, Ms S informs the Father that the review appointment scheduled for 8 December 2015 has been cancelled. Ms S says as follows, after a conversation with the Mother held on 15 November 2015 (Exhibit B1 to the Father’s affidavit filed on 22 July 2016 at 4):
….In our discussion, [the Mother] advised me that she wishes to follow the Final Court Orders made earlier this year and maintain Contact at the centre under my supervision; I respect this and am also bound by the instructions in those Orders.
As you are aware, I feel that the children would cope well and would benefit from moving to your home, under supervision, for Contact, as I feel there has been good progress since I commenced working with your family in June. In general, the children appear to be comfortable with you, although Y still exhibits some shyness and reluctance to speak up for herself at times.
In that email, Ms S indicated that she is happy to continue to work with the family under the current arrangement for as long as the parents wish.
The second piece of correspondence relied upon by the Father is an email sent by Ms S on 27 April 2016 to both parties. In that email, Ms S says that (Exhibit B2 to the Father’s affidavit filed on 22 July 2016 at 6-7):
I have been open with both of you in stating my belief that Contact, in its current form, is no longer meeting the children’s needs and is an artificial way for [the Father] to parent. X and Y appear to enjoy Contacts but I feel they have outgrown sitting in the room or going to the park as ways to spend time with [the Father]. Contact should now move to [the Father’s] home, with supervision continuing for a brief period whilst the children adjust, followed by my involvement being only to facilitate Changeovers.
…
It is my role to help families to move toward self-managed Contact and to support parents in opening up a dialogue around their children. Despite the fact that we have been working together for almost a year, I have not been able to effect a change, either in terms of improved communication between the two of you, or in helping you to move from the centre to [the Father’s] home. If I have not been able to manage this after a twelve month period it is important that I question whether or not my continued involvement is beneficial to your family.
Under the guidelines of the Australian Children’s Contact Services Association, of which I am a member…, I now need to be looking at terminating service to your family. I am not sure what other options you have if we do that, so I am reluctant to take that step without asking you both to have another look at the situation and to advise me if you feel we can make a plan to move forward. If we cannot do this, and implementing a method of communication for you, I will need to look at ending service by the end of June, and would encourage you both to seek legal advice.
Counsel for the Father informed the Court that the supervised sessions by Ms S ceased at the end of June 2016, and that since that time, the Father has spent very limited time with the Children. Apparently, there may have been some supervision of the Father’s time with the Children by the Maternal Grandmother and the Maternal Grandfather, although neither parent refers to this in their affidavits.
The Father relies on an affidavit filed by Ms A on 6 March 2017. Ms A deposes at [2] and [4] of her affidavit that she is a mutual friend of the Father, and holds a Diploma of Children’s Services, an Advanced Diploma of Community Sector Management and a Diploma of Nursing. Ms A deposes that she holds a Supervisor Certificate from the Department of Education and Early Childhood Development, which permits her to be a supervisor in a pre-school centre, as well as work in a before and after school care program. Ms A deposes at [5] of her affidavit that she has completed extensive professional development work in the areas of child protection and development, holds a “Working With Children” card and has received a police check.
Ms A deposes at [1] of her affidavit that she has offered to assist the Father by supervising his time with the Children, and by supervising changeovers between the Mother and the Father where applicable. Ms A deposes at [6] of her affidavit that she is aware of the role of a supervisor in the family law context, and has read “A Guideline for Family Law Courts and Children’s Contact Services” (Australian Government Attorney-General’s Department (Cth) et al, ‘A Guideline for Family Law Courts and Children’s Contact Services’ (Working Paper Job no.4473, 1 January 2007). Ms A gives an undertaking to the Court and to the parents at [6] of her affidavit that she will “…carry out [the] role as supervisor of [the Father] with the children and where necessary as supervisor of changeovers with due diligence and a focus on the interests of the children”.
In the Father’s affidavit filed on 22 July 2016 at [8], the Father says that the Mother has “…refused to consider any changes and continues to demand that all supervision be fully supervised by a professional supervisor”. There is no information before the Court as to whether the Father has attempted to communicate with the Mother regarding his time with the Children being supervised by Ms A and, if he has, what the Mother’s response has been to this.
Counsel for the Mother accepted (properly) the principle stated in Slater v Light, but argued that the present case is simply a case where the Father is not happy with the 2015 Final Orders. Counsel for the Mother argued that the principle was not relevant in circumstances where Judge Phipps considered, in detail, the reasons why ongoing supervised time was necessary, and the consequences of such an order. Counsel for the Mother submitted that his Honour had considered all the factors raised, including evidence contained in three Family Reports and psychological evidence, in reaching his decision. Counsel for the Mother referred in particular to the following paragraphs from his Honour’s decision (Bronson & May at [86]-[89]):
86. The [Father’s] behaviour in the incident in March 2014 and his attitude to it demonstrated during his evidence shows that the risks to the children if they spend unsupervised time with him are still there. In January 2011 his controlling behaviour towards the [Mother] was such that he backed his car into a motor vehicle which contained not only the [Mother] but the children. There can be no confidence that if left with the children unsupervised or without at least a suitable adult in substantial attendance his anger and aggression might put the children at risk.
87. Ms J recommends unsupervised time but only after the [Father] has completed suitable courses, and then only limited unsupervised time. I consider that the risk of reoccurrence of violent and aggressive behaviour by the [Father] is too great to allow even limited unsupervised time, or it least time without a suitable adult being in substantial attendance.
88. The only alternative to the paternal grandmother as a supervisor is a contact centre. One might not be available and so the effect of making orders that requires supervision or substantial attendance by a suitable adult might mean that the children do not see their father and so do not have a relationship with him. Notwithstanding this, risk of unsupervised time is too high.
89. Once final orders are made the only mechanism for approval of a suitable supervisor or person to be in substantial attendance will be the agreement of the [Mother]. Unless the [Father] gets into a position where he can afford a professional supervisor the probability of the [Mother] approving anybody other than the paternal grandmother is low. The paternal grandmother, when talking to Ms J, did leave open the possibility of some involvement. The relationship between the paternal grandmother and the [Mother] is good to the extent that the [Mother] acknowledges that the children should see their paternal grandmother. This means that there is at least one possible avenue for the children to spend time with their father at least occasionally.
Counsel for the Mother submitted that these extracts demonstrated that Judge Phipps had carefully considered the issue of the undesirability of the 2015 Final Orders providing only for time spent to be supervised.
Counsel for the Mother submitted that the litigation had commenced in 2011, and the Father had more than enough opportunity to change his behaviour, including through the opportunity of having orders providing for supervised time with his children. Counsel for the Mother noted that his Honour referred to the Father’s continuing lack of insight into his behaviour. Counsel for the Mother identified one of two incidents which was the subject of his Honour’s consideration as follows (Bronson & May at [83]-[84]):
83. In a passage from Ms J report set out earlier in these reasons she says that there is concern that the [Father] has not fully addressed his temper and aggression and she refers in particular to the incident in March 2014 where the [Father] refused to leave the nature strip outside the maternal grandparents house despite his mother asking him many times to do so. Ms J concern is soundly based.
84. At the hearing the [Father] continued to maintain that he was entitled to be on the nature strip. His reason for wanting to do so was self-centred. He wanted to spend the 10 or 15 minutes that the grandmothers would spend conversing at the door of the house talking to his children. This shows no insight at all into how inappropriate that was and no insight at all about how inappropriate his behaviour was in not moving when his presence was objected to. Ms J says:
With his concrete thinking, he lacks insight into how his behaviour affects others and appears to have self-righteous views about what he is entitled to. Despite the paternal grandmother trying many times to discourage him, [the Father] insisted on standing on the maternal grandparent’s nature strip, which demonstrates his determination, domination and lack of insight. He lacked the common sense to keep away and not inflame the situation with the maternal grandparents.
Counsel for the Mother argued that the change in the diagnosis of the Father’s mental health is irrelevant, as Judge Phipps’ reasoning was based on the family violence perpetrated by the Father and the attitude of the Father, as well as the best interests of the Children.
As to the issue of supervision, the Mother deposes in her affidavit filed on 3 February 2017 at [17] that there were 34 scheduled visits, however, only 18 had taken place. The Mother says two of those were cancelled by her due to the Children being sick, ten were cancelled by the Father for various reasons, and one was cancelled by Ms S because the fees had not been paid by the Father. The Mother further states at [18] of her affidavit that although the 2015 Final Orders allow for some progression in contact, the Father’s inconsistency concerns her that he is not committed and does not prioritise the Children. The Mother further states at [19] of her affidavit that she has been provided with a summary of observations from supervised contact (“2016 Supervision Summary Report”) prepared by Ms S and dated 19 September 2016 (Annexure M–5 to the Mother’s affidavit filed on 3 February 2017). The Mother argues at [19] of her affidavit that “…the Summary shows that the father has required the assistance of the supervisor as to appropriate behaviour, conversations and management of the children…”
Counsel for the Mother took the Court to various supervised sessions described in the 2016 Supervision Summary Report to support the Mother’s assertion that the Father required ongoing assistance, and engaged in inappropriate behaviour or conversations with Ms S. In particular, Counsel for the Mother relied on an observation made by Ms S at 10 of the 2016 Supervision Summary Report, where Ms S notes that she did not have possession of the full orders as she did not have the reasons for judgment of Judge Phipps.
Ms S then states (2016 Supervision Summary Report at 10):
Having read the Reasons for Judgment document, I understand [the Mother’s] reluctance to consider any changes. Based on my Exclusion Criteria (which I have attached to this document), had I been provided with this information at the outset, it may have been that I would not have taken on the case, as there was no provision for moving to self-managed visits. It is clear that this document was carefully considered and is not something which I am in a position to ignore. I am bound by the Court Orders, and can only support parents to make changes which are in within the Best Interests of the Children principle, by helping them to make changes by way of a Parenting Plan, which, whilst this can include significant departure from the original Orders, does not appear to be appropriate in this circumstance. Not being in possession of this information resulted in me attempting to progress the visits forward in a manner which may have contravened the orders, and I applaud [the Mother] for remaining committed to maintaining her stance on this.
In the 2016 Supervision Summary Report at 11, Ms S said that in general, the visits were going well, appeared to be beneficial for the Children, the Children appeared to anticipate the visit, and generally seemed to have a good time. Ms S notes that the Children are more engaged and more relaxed than when they first began attending and, although the Children continue to appear to gauge how the Father presents at the beginning of the visits, there is laughter, robust play and sharing of information. Ms S stated at 11 of the 2016 Supervision Summary Report that she had “…observed some positive shifts in how [the Father] approaches and engages his children…” and that she believed “…there is continued benefit to be had by the children spending time with their father”.
The Mother also relied on the summary of observations from supervised contact (“2017 Supervision Summary Report”) prepared by Ms S and dated 29 January 2017, summarising observations of the supervised contact for the Father with the Children. Counsel for the Mother drew the Court’s attention to Ms S’s statement that (2017 Supervision Summary Report at 1):
It is not my role to make recommendations to the court, regarding children, rather this summary is intended to provide information on how contact visits have been proceeding, the interactions I have witnessed between the children and [the Father], and my observations of how parents have been managing the process.
Although not drawn to the Court’s attention, it is relevant to note that in this summary, Ms S states the following (2017 Supervision Summary Report at 2-3):
In general, the visits have been progressing well and it is a shame that there have not been more in these last four months, as I have seen some consolidation of new learning in [the Father], principally in his manner and capacity for patience, and the children appear to be responding well to this. Since my last report, [the Father] requested extra support in adding to his parenting skills. He has responded well to suggestions and I have witnessed him being more able to talk directly to the children and of him being more engaged with them during visits. His manner of speech has softened and his voice tone is lower; Y appears to be less wary of [the Father] whilst X continues to approach him with enthusiasm and acceptance. [The Father] does not seek me out for conversation as much as he used to and, when he does, it is brief and specific.
…
As I have reported previously, I feel that the children have outgrown the office environment and I would like to see the visits shift to other venues or, ideally, [the Father’s] home. The visits have been fully supervised, at the same venue, for a period of 20 months, and I have been unable to support the family to move forward in any way. Whilst my involvement has meant that [the Father] and the children have been able to spend time together, I regret that I have been unsuccessful in effecting any real change to the family’s circumstances…
...
I acknowledge the complexity of the matters parents are dealing with, and that the current Court Orders are comprehensive, but I would still expect that there would have been some changes by now…
…
I have reached the stage where I feel that I am no longer offering an appropriate service to this family as I have not been able to follow my usual process of undertaking regular reviews, and planning an exit strategy. [The Mother] has continued to indicate an intention to not consider any options, other than those contained in the current Orders, and [the Father] has expressed a clear desire to move forward, rather than maintaining the status quo…
It should be noted that Ms S observed (at 3 of the 2017 Supervision Summary Report) that the Mother has always been cooperative and thoughtful in managing time for the Children with the Father, that she has continued to support the time within the bounds of the 2015 Final Orders, that she encourages the Children, is always on time for the visits, and has provided copies of school reports and communication regarding school photos to the Father.
Ms S notes (at 3 of the 2017 Supervision Summary Report) that she would normally have ceased her involvement earlier, and indicated her intention to do this to both parents. However, Ms S states that has remained on board so that the Children could continue to spend time with the Father.
Consideration
The reasons for the decision and consequential final orders of Judge Phipps in 2015 have already been dealt with earlier. There is no doubt, in reading Judge Phipps’ reasons for judgment, that the issues of concern to his Honour were the extreme violence perpetrated by the Father on the Mother, the Father’s lack of insight as to the impact of his behaviour on others, and his concern that there was an unacceptable risk that the Father would engage in such behaviour, placing the Children’s safety at risk in an unsupervised environment.
The Father’s proposed orders involve a significant change to the way in which supervision is arranged. I note that the Father’s proposed orders also propose a progression to unsupervised time.
If I accept the evidence that the Father has put in support of a significant change in circumstance, I would find as follows:
(a)there is no doubt, as the Mother argues, that the focus of Judge Phipps in making the 2015 Final Orders was the extreme violence perpetrated by the Father on the Mother, and the Father’s lack of insight regarding this. However, it is plain from a reading of his Honour’s judgment that his Honour noted a dearth of medical expert opinion in relation to the Father’s mental health issues and, in particular, the diagnosis that the Father suffered from Bipolar Disorder. His Honour noted that one such assessment (in the Family Report prepared by Ms J) was unfavourable to the Father (Bronson & May at [83]). However, Ms J still recommended unsupervised time. His Honour also said that he inferred (presumably because of the absence of any evidence from the Father’s treating medical practitioner), that there was no evidence favourable to the Father in relation to his mental health issues (Bronson & May at [85]). If the evidence of Dr B is accepted, then the previous diagnosis of Bipolar Disorder is called into question and it suggests that the Father’s anger issues and violence arise not so much from a mental health issue, but frustration experienced as a result of the Father’s low intellectual capacity. It is not evident to the Court at present how this opinion might affect how the Court views the serious and significant concerns about the Father’s anger and violence in the past, or his lack of insight into these behaviours and issues. I accept that the evidence of Dr B discloses that the Father reports continuing, although limited, outbursts of anger. However, this medical evidence may well amount to a significant change to the medical evidence which was before the Court in the previous litigation; and
(b)it is not so much the passage of time pursuant to which the Father has spent time with his children supervised by a professional supervisor which is relevant. Rather, it is the independent evidence contained in the correspondence and reports of the professional supervisor, Ms S. On the independent evidence available, the Father’s supervised time with the Children has progressed positively. However, the opinion of the professional supervisor was that supervision at the Contact Centre or at a park was no longer consonant with the Children’s best interests. The professional supervisor has opined that it would be in the best interests of the Children for supervision to now proceed at the Father’s home. It is evident that this proposal has not been accepted by the Mother. It also appears that no other regular supervised arrangements have been put in place by agreement between the parents. Whilst I am not criticising the Mother (because under the 2015 Final Orders it is the Mother’s agreement in writing which is required for supervised time arrangements to take place), these circumstances are, it seems, the vice which has led the Full Court of the Family Court of Australia to be critical of the absence of a review mechanism in final orders that provide only for one parent to spend supervised time with their children.
It is relevant to note that, in considering whether the Father should be permitted to institute parenting proceedings, the paramount consideration for the Court is the best interests of the Children. The rule in Rice and Asplund is simply a manifestation of the accepted view that ongoing litigation without justifiable reasons is not in the best interests of children.
There is a particular feature of this case which, in my opinion, is relevant and critical to deciding whether I should allow litigation regarding parenting orders for the Children to re-commence. This is the fact that the 2015 Final Orders do not provide any review mechanism for the orders requiring ongoing supervision. The Full Court of the Family Court of Australia has been critical of such orders on the basis that, amongst other things, indefinite orders for supervision are not in the best interests of children. The leading case is Moose v Moose, which was referred to with approval in the decision of Slater v Light as follows (Slater v Light at [38]-[40]) :
38. While the making of orders for supervised time is an exercise of discretion, statements from the Full Court of this Court have sought to give specific guidance where such orders are to be made for an indefinite or indeterminate period. In Moose & Moose (2008) FLC 93-375, the Full Court (May, Boland and O’Reilly JJ) agreed that an appeal against orders for indefinite supervised time should be allowed.
39. May J considered the specific issue of ensuring sufficient reasons for such orders and noted the difficulties faced in future review:
8. Should the father bring a further application asking for the provision in relation to supervision at the Contact Centre be removed, his case doubtless would be met with an assertion that he may not do so because there have [sic] been no change in circumstances (Rice & Asplund).
…
40. Boland J commented on the general undesirability of long term supervised contact and similarly expressed May J’s concern about orders providing for their own review:
119. The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).
In conclusion, the Full Court of the Family Court of Australia said (Slater v Light at [68]-[71]):
68. We consider no error has been demonstrated in the Federal Magistrate’s application of the legal principles and exercise of discretion in finding that the father posed an unacceptable risk of emotional harm to the children. Such a finding was open to his Honour based on the expert evidence, the recent evidence of the father’s behaviour in complaining to the Department of Communities, and the mother’s concerns. Ground 2, as counsel conceded, also must fail.
69. Flowing from this finding, his Honour was correct to find that an order for supervised time should be made. We do consider appealable error has been made out however in ground 3, as an indefinite supervision order was not justified in the circumstances and in any event was not substantiated by sufficient reasons. It is also relevant to the success of this ground that the orders did not at least provide an opportunity for the father to apply to vary the supervision arrangements at a later time. That the father could bring such an application is no solution given that on the basis of Rice and Asplund he would need to establish significant changed circumstances before being permitted to have his case heard on the merits.
70. It could not be said from the Federal Magistrate’s reasons that the real intention was for the supervised time orders to be final in the sense that the father was never again to spend unsupervised time with the children. Thus some provision reflecting this ought to have been made in the orders.
71. In determining the proper order this Court should make, we regard the time which has elapsed since the hearing of this matter, together with the age of the children and the expert reports, as being of some significance. A rehearing, with further updated expert evidence about the time and the circumstances in which the father should spend time with the children is necessary.
In Marsden & Winch, the Full Court of the Family Court of Australia was concerned with findings and orders made in the earlier proceedings which have some relevance to this matter. The Full Court made the following relevant observations (Marsden & Winch at [59]):
59. It is also important to highlight a certain class of case, of which this is one, where the Court has made findings which have led it to conclude that there should be no face-to-face contact between parent and child. These cases can provide different challenges, both for the applicant and the Court. Usually the reason for such a draconian order has been a finding about particular behaviour of a party, by reason of which it would be contrary to the child’s interest to allow face-to-face contact. Once made, those findings will stand and the changes asserted will usually be the passage of time and/or some amelioration in the underlying causes of the behaviour, such that it is unlikely to occur in the future. The passage of time is not of itself a factor but might become relevant where the risk to the child by certain behaviour is reduced or removed by the increasing age and maturity of the child. These are only examples but they represent some of the conditions under which a party might wish to return to court. If these matters were never to be considered, then a conclusion reached such as in the present case in 2006 that no face-to-face contact was permitted would prevent the father from ever making an application for face-to-face contact, even though the events upon which the original order was made had occurred many, many years before and the child was significantly older…
I accept that his Honour Judge Phipps contemplated that the effect of the 2015 Final Orders may be that “…the children do not see their father and so do not have a relationship with him…” (Bronson & May at [88], extracted at [35] above). At the time that the 2015 Final Orders were made, X was aged six and a half years and Y was aged five and a half years. In the absence of a review mechanism regarding the Children’s supervised time, it seems inevitable that the Children will not have a relationship with their Father.
Whilst there may be an argument whether the change in diagnoses of the Father’s mental health and/or the passage of time during which professional supervision has taken place amounts to significant or material change, it is clear that the 2015 Final Orders are not working and, on the only independent evidence available, have not given effect to the best interests of the Children.
I am satisfied, on the evidence before the Court, that the best interests of the Children will be served by a consideration of alternative supervision arrangements and, whether the inclusion of a review mechanism of these arrangements are in the Children’s best interests. I have weighed this consideration against the adverse impact that embarking on litigation may well have on the Children’s emotional well-being and consequently their best interests. On balance, however, and with a degree of caution, I have decided that litigation should proceed.
Consequently, I will not dismiss the Father’s Amended Initiating Application filed on 20 February 2017. However, having determined that the Father’s Amended Initiating Application should not be dismissed at the preliminary stage on the basis of the principles established in Rice and Asplund, I note that the authorities make it clear that this principle may apply at any stage during the proceedings. That is to say that, it will still be open to the Court to decide that continuing litigation would not be in the best interests of the Children.
Conclusion
For the reasons set out in this judgment, I dismiss the Mother’s application contained in her Response filed on 3 February 2017 that the Father’s Amended Initiating Application filed on 20 February 2017 be dismissed. An order will be made listing this application for mention.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 25 September 2017
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