CHAMBER & DIMMOCK

[2011] FamCA 546

FAMILY COURT OF AUSTRALIA

CHAMBER & DIMMOCK [2011] FamCA 546

FAMILY LAW - CHILDREN – Father’s application to vary existing final parenting orders – Rice v Asplund (1979) FLC 90-725 – threshold issue – whether there has been material change in circumstances or material new factor – where child refuses to spend time with the father – child’s attitude has not changed – where the supervising contact centre terminated supervision services – new knowledge that maternal grandfather was previously employed by supervising contact centre – finding that there is no material change in circumstances or material new factor

FAMILY LAW - CHILDREN – Whether existing final parenting orders can be varied without overcoming Rice v Asplund principle – whether final  hearing can be conducted on the issue of appointing changed supervisor – whether distinction between consequential and substantive orders is applicable to parenting orders

Family Law Act 1975 (Cth) ss 60CA, 65AA, 79A

Marsden v Winch (2009) 42 Fam LR 1
Miller v Harrington (2008) FLC 93-383
Moliere & Van Wyk (1980) FLC 90-911
Marriage of Phillips (1985) FLC 91-634
Marriage of Ravasini (1983) FLC 91-312
Rice v Asplund (1979) FLC 90-725
SPS v PLS (2008) FLC 93-363
Marriage of Warwick (1983) FLC 91-342

APPLICANT: Mr Chamber

RESPONDENT: Ms Dimmock

INDEPENDENT CHILDREN’S LAWYER: York Family Law

FILE NUMBER: NCC 1185 of 2010

DATE DELIVERED: 15 July 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 28 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bates

SOLICITOR FOR THE APPLICANT: Denis Edwards & Associates

COUNSEL FOR THE RESPONDENT: Ms Boyle

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guterres

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: York Family Law

Orders

1. The Initiating Application filed by the father on 10 May 2010 is dismissed.

2. The Response filed by the mother on 15 June 2010 is dismissed.

3. Costs are reserved for 28 days.

4. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1185  of 2010

Mr Chamber

Applicant

And

Ms Dimmock

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant father and respondent mother in these proceedings have been unable to terminate their litigious struggle over their only child, who is now aged nearly 12 years.

2. The parties ultimately agreed upon final parenting orders during the course of a keenly contested trial in August 2008, but the orders were not successfully implemented and fresh proceedings were commenced in May 2010.

3. It was ordered that an inquiry be conducted to determine, as a threshold issue, whether there had been a material change in circumstances so as to justify revision of the existing orders, consonant with the principle espoused in Rice v Asplund (1979) FLC 90-725. These reasons address that preliminary issue.

Background

1. The child who is the subject of these proceedings, P, was born in August 1999.

2. The parties separated many years ago when the child was very young.

3. The child ceased spending any time with the father in 2005.[1] In cross examination, the father confirmed that their interaction ceased in February 2005.

   [1] Affidavit of Family Consultant, page 2, par 3

4. Litigation between the parties in respect of parenting orders concerning the child was concluded on 28 August 2008, when final orders were made with the consent of the parties in the course of a lengthy trial before Cohen J.[2]

   [2] Mother’s affidavit, par 3; Father’s affidavit, par 4

5. The orders provided for the mother to have sole parental responsibility for the child and for the child to live with the mother.[3]

   [3] Orders 1 and 2

6. The orders also made detailed provision for the circumstances under which the child would spend time with the father.[4] In particular, the time spent by the child with the father was to be supervised and strictly confined.

   [4] Orders 4-19, 24-25

7. The supervision was to be provided by J contact service at Town 1 (“the contact service”), by S contact service at Newcastle, or by some other contact service subject to agreement by the Independent Children’s Lawyer.[5]

   [5] Orders 3, 4, 10, 16, 25

8. The time spent by the child with the father was expanded incrementally, commencing with discrete periods of less than 15 minutes and not progressing beyond periods of 2 hours each alternate month.[6] The father was restrained from personal interaction with the child other than in accordance with the orders.[7]

   [6] Orders 3-4

   [7] Order 17

9. It is clear from the terms of the orders that the parties and Independent Children’s Lawyer contemplated complications might arise when implementing the arrangements for the child to spend time with the father.

10. Firstly, the orders were liable to unilateral suspension by the contact service in the event of determination that the child became “too distressed to commence or continue spending time with the father”.[8]

    [8] Order 5

11. Secondly, the orders obliged the contact service and Independent Children’s Lawyer to stay in contact about the implementation of the orders,[9] and to cater to that requirement the appointment of the Independent Children’s Lawyer was extended for more than three years.[10]

    [9] Orders 7, 10, 24

    [10] Order 23

12. Thirdly, the orders also required arrangements to be made for the child to be counselled about the resumption of her interaction with the father.[11]

    [11] Order 11

13. The child’s communication with the father was confined to mail, and any written communication between the child and the father was to be vetted by the Independent Children’s Lawyer.[12]

    [12] Order 15

14. Efforts were made by the parties to implement those orders.

15. The child was afforded counselling,[13] and appointments were made for the child to spend time with the father at the contact service on dates in February 2009,[14] June 2009,[15] August 2009,[16] November 2009,[17] and February 2010.[18]

    [13] Exhibit M1

    [14] Father’s affidavit, pars 5-15

    [15] Father’s affidavit, pars 16-20

    [16] Father’s affidavit, pars 21-26

    [17] Father’s affidavit, pars 27-31

    [18] Father’s affidavit, pars 32-37

16. On each of those occasions the child was conveyed by the mother to the contact service to meet with the father. The father also attended in the hope of seeing the child. However, on each occasion the child refused to meet with the father face-to-face, and their interaction was confined to passing notes between one another.

17. On 27 April 2010 the contact service corresponded with the Independent Children’s Lawyer advising of the reasons for cancellation of the next scheduled appointment on 22 May 2010 and confirming unwillingness to continue with its supervisory services.[19] The letter advised, in part:

    At each of these attempted visits, [the child] has been unwilling to proceed to face-to-face contact with her father and has only agreed to communicate by means of limited verbal and written messages via the CCS staff…

    We wish to advise that we have done all that we can do to reasonably facilitate supervised contact visits over a substantial period of time but are of the opinion that we can no longer assist in this case until the matter is further considered by the court and that further orders are applied for by the relevant parties after [the child’s] wellbeing and her unwillingness to see her Father directly are duly reconsidered.

    [19] Father’s affidavit, par 38, Annexure G

18. As a consequence, no visits at the contact service have been conducted since February 2010 and the child has still not spent any time with the father since February 2005.

19. Apart from the notes passed between them at the contact service during the five scheduled visits between February 2009 and February 2010, the father confirmed that he has not availed himself of the order made on 28 August 2008 permitting his written correspondence with the child.[20]

    [20] Order 15

20. These proceedings were commenced by the father in May 2010.

21. The parties and the child conferred with the Family Consultant on 16 August 2010 pursuant to a procedural order made by the Court. The Family Consultant prepared her memorandum, which she annexed to her affidavit affirmed on 17 August 2010. That affidavit was released to the parties.

22. The proceedings were listed before the Court for the first day of trial on 27 April 2011 and were then fixed for hearing on 28 June 2011 in respect of the discrete preliminary issue as to whether there had been any material change of circumstances so as to warrant review of the orders made on 28 August 2008.[21]

    [21] Order 3 made on 27 April 2011

Proposals and evidence of the parties

1. The father relied upon his Initiating Application filed on 10 May 2010, in which he sought wholesale revision of the consent orders made on 28 August 2008 in so far as they made provision for the child to spend time with him.

2. Although the father proposed the discharge of all existing orders providing for the child to spend time with him, he did not propose any substitute orders facilitating the expenditure of time with him by the child. It was explained that the father’s substitute proposal would not be formulated until the Family Consultant had compiled a comprehensive updated family report. The father’s ultimate proposal about the child’s interaction with him was therefore quite uncertain.

3. In support of his proposal the father relied upon his affidavit filed on 10 June 2011 and his parenting questionnaire filed on 11 April 2011.

4. The mother filed her Response on 15 June 2010, in which she also sought revision of the existing orders. However, the mother subsequently reconsidered her position and decided to abandon that application. She and the Independent Children’s Lawyer both contended that there are no circumstances that warrant the Court’s reconsideration of those orders.

5. In support of her proposal the mother relied upon her affidavit filed on 30 May 2011 and the affidavit of the maternal grandfather filed on 30 May 2011.

6. The parties and the Independent Children’s Lawyer relied upon the evidence of the Family Consultant contained within her affidavit affirmed on 17 August 2010, which evidence was supplemented during her cross examination. I accept her evidence, which was logical, reasoned, and balanced.

7. The parties and the Independent Children’s Lawyer also relied upon the evidence of the single expert witness appointed in the proceedings concluded in August 2008. That single expert was Dr Q, psychiatrist, and her evidence was contained within her report to the Court dated 13 September 2006. That report was tendered,[22] but she was not required for cross examination.

   [22] Exhibit A

Relevant legal principles

1. In order to thwart the prospect of endless litigation over children, principles evolved to permit the Court to dismiss subsequent parenting proceedings if there are no material changes in circumstances and no revelation of some previously unknown feature of material relevance since litigation was last finalised in respect of such children (see Rice v Asplund (1979) FLC 90-725 at 78,905; SPS v PLS (2008) FLC 93-363 at [1]; Marsden v Winch (2009) 42 Fam LR 1 at [48]).

2. The determination of whether there has been a change of sufficient magnitude to warrant review of existing orders may be made either by preliminary inquiry or by more comprehensive hearing (see Marsden v Winch at [46-47]; Miller v Harrington (2008) FLC 93-383 at [80-83]), but whichever stage the determination is made, application of the Rice v Asplund principle is merely a manifestation of the principle that the subject child’s best interests are the paramount consideration (see Marsden v Winch at [55]; Miller v Harrington at [101]) and procedural fairness should always be observed (see Marsden v Winch at [56]).

3. In order to reach a determination, the Court should consider (see Marsden v Winch at [50]):

   a)The past circumstances, including the reasons for the decision and the evidence upon which it was based.

   b)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   c)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.

The evidence

1. The father points to several aspects of the evidence that he contends overcome the obstacle presented by Rice v Asplund. It is preferable to evaluate those facts and circumstances individually.

Changed circumstances

1. The father contended that the unilateral termination of supervision by the contact service in April 2010 was an intervening act which severed the slowly developing relationship between the child and him, but for which their relationship may have been recovered. It was further asserted that the notes written by the child over the period between February 2009 and February 2010 demonstrated a softening of her previously resistant attitude towards the father, and represented change since August 2008.

2. The notes passed between the child and the father at the contact service were tendered,[23] as were the reports of the contact service in respect of each of the five scheduled visits.[24]

   [23] Exhibit F1

   [24] Exhibits F2, M3

3. The child’s notes were seen by the Family Consultant before compilation of her memorandum and were again shown to her in cross examination. She quite properly agreed that the child’s expressed thoughts had mellowed in the period between February 2009 and February 2010, indicating that she was less anxious about the prospect of enforced face-to-face interaction with the father. The Family Consultant said that the notes were developmentally appropriate for a girl of the child’s age.

4. At the last scheduled visit on 20 February 2010 the child told staff at the contact service that she was “working up to [seeing the father] and…needed more time” but again refused to see the father that day. The Family Consultant agreed that the child’s attitude at that point represented “some” progress, but not a “great deal” of progress, as was suggested. The Family Consultant agreed she could not discount the prospect that the child may have made more progress had the scheduled visits not been terminated by the contact service.

5. It is of course possible that the child could have changed her attitude and later consented to face-to-face interaction with the father if the visits at the contact service continued, but that is really bare speculation. The Family Consultant was only asked to concede it as a possibility, which she properly did. There is very little, if any, evidence to support an inference that it would probably have occurred.

6. There is no real doubt about the child’s current attitude. She remains resistant to meeting the father in person. She told the Family Consultant that in August 2010, and that was her attitude during the litigation in 2008.[25] The Family Consultant said the child is now approaching “the age of anger” where her views will be more fixed and stridently expressed. Forcing her to engage with the father against her clear wish will likely make her angry and harden her resistance.

   [25] Exhibit A, pages 29, 36, 40, 41, 58

7. Although the father’s disappointment is palpable and understandable, his reliance upon the child’s notes is selective. The notes of the child and the reports of the contact service staff do not uniformly create an impression that the child’s resistance to interaction with him was dissolving. It is reasonably clear from the exhibits that the child was absolutely opposed to seeing the father in February 2009, but despite the child becoming more relaxed over the course of a year, the child’s abiding sense of discomfort in February 2010 caused her to maintain resistance to spending time with the father. She desired retention of her relationship with the father only by correspondence, by which she was not threatened.

8. There is an overall consistency between the child’s notes, the reports of the scheduled visits compiled by the contact service, the child’s comments to the Family Consultant, and the evidence of the mother about the child’s anxiety prior to the scheduled visits at the contact service.[26]

   [26] Mother’s affidavit, par 16

9. For reasons best known to himself, in the absence of personal interaction with the child, the father has not corresponded with the child since the orders were made in August 2008 permitting him to do so. Nothing changed even when the father rekindled his relationship with the child by exchanging notes with her at the contact service, nor even when the father read the Family Consultant’s memorandum in August 2010 containing reference to the child’s desire to continue receiving cards and gifts from him.

10. The fact is, the relationship between the child and father was all but lost due to an absence of any interaction between them for more than three years prior to the trial in August 2008. The orders made consensually between the parties in August 2008 laudably intended the attempted re-introduction of the father to the child, but expressly contemplated that the attempt may fail. Order 5 permitted the contact service, in the exercise of its discretion, to discontinue interaction between the child and father, or to even preclude it from commencing.

11. The decision by the contact service in April 2010 to terminate its services, after a series of attempts to faithfully implement the orders over the preceding 12 months, was not therefore an act of unilateral intervention which unexpectedly frustrated operation of the orders. Rather, it was an outcome foreseen by the parties, the Independent Children’s Lawyer, and the Court when orders were made in August 2008, which orders were generally consistent with the recommendations of the single expert.[27]

    [27] Exhibit A, pages 58-59

12. It was expressly envisaged that the orders would exhaustively regulate the circumstances under which the child could spend time with the father and that the parties would not make their own arrangements. Firstly, the orders made alternate provision for use of substitute contact services to ensure maintenance of supervision,[28] and secondly, the orders imposed an injunction upon the child spending time with the father other than in accordance with the orders.[29]

    [28] Orders 10, 16, 25

    [29] Order 17

13. The circumstances, both in April 2010 when the contact service terminated its involvement and currently, are not materially different from the state of affairs that existed when the final parenting orders were made in August 2008.

Undisclosed circumstances

1. The maternal grandfather commenced employment with the J contact service at Town 2 in June 2008.[30]

   [30] Maternal grandfather’s affidavit, par 3

2. The father alleged he was unaware of that fact at the time he agreed to the consent orders on 28 August 2008, and did not learn of it until it was later disclosed by inspection of documents produced on subpoena.[31] Although the maternal grandfather asserted that the fact was announced to the Court in the presence of the father and his lawyers before the orders were made on 28 August 2008,[32] he corrected his evidence in cross examination to confirm that the fact was intentionally kept from the father and only advised in writing to the Court and the parties’ legal representatives.

   [31] Father’s affidavit, pars 39-40

   [32] Maternal grandfather’s affidavit, par 4

3. In the circumstances, I accept the father’s evidence that he was ignorant of the maternal grandfather’s employment with J contact service at Town 2 at the time he agreed to the orders on 28 August 2008. However, the undisputed fact arising from the evidence is that J contact service at Town 1 was chosen as the contact service by the father’s own legal representatives. The mother agreed with that choice because, as she said in cross examination, she did not consider it appropriate for the supervision to be provided by J contact service at Town 2 when her father worked at that venue. The choices were otherwise venues at Town 1 and Newcastle, and the Town 1 venue was chosen because of its proximity.

1. The father submitted, without giving direct evidence of the fact, that had he known earlier of the maternal grandfather’s employment with J contact service at Town 2 he would not have consented to the use of J contact service at Town 1 as the designated contact service.

2. The gravamen of the father’s grievance is apparently his apprehension that the maternal grandfather’s association with the J contact service organisation at Town 2 may have been influential in the decision by J contact service at Town 1 to terminate its services in April 2010. Suffice to say there is no proper basis for the father’s apprehension to be regarded as objectively reasonable. I reject his submission that an inference of such influence is legitimately drawn from the evidence. There is no plausible inference, only conjecture.

3. The maternal grandfather never attended the Town 1 venue of J contact service,[33] and I accept his evidence that he did not discuss the case with staff of J contact service at either the Town 2 or Town 1 venues.[34]

   [33] Maternal grandfather’s affidavit, par 9

   [34] Maternal grandfather’s affidavit, par 10

4. The maternal grandfather’s evidence is corroborated by the correspondence dated 27 April 2010 sent by the co-ordinator of J contact service at Town 1 to the Independent Children’s Lawyer, which explains the reasons for the termination of its services. None of those reasons related to the maternal grandfather. The maternal grandfather last worked for J contact service at Town 2 in July 2009, so it would be stretching credulity to infer that he was able to influence decisions by the co-ordinator of J contact service at Town 1 in April 2010.

5. The father’s fear seems borne of distrust of the maternal grandfather and his belief that the maternal grandfather denigrates him in the presence of the child,[35] notwithstanding the maternal grandfather’s vehement and credible denials of any such denigration in both his affidavit[36] and in cross examination.

   [35] Father’s affidavit, pars 41-46

   [36] Maternal grandfather’s affidavit, par 11

6. The father’s belief is largely founded upon comments made to him by a third person who was formerly romantically associated with the mother’s sister. Importantly, the father did not call that third person to give corroborative evidence. The father’s beliefs could be based entirely upon misrepresentations by a person with a motive to be mischievous. It is impossible to say in the absence of that person’s tested evidence. But it is important to observe that, as the evidence stands, the father’s expressed belief in the maternal grandfather’s skulduggery lacks a reliable evidential platform.

Alienation of the child from the father

1. The father submitted to the Court on 27 April 2011 that the mother and maternal grandfather were alienating the child from the father, and that was a changed circumstance.[37]

   [37] Mother’s affidavit, par 4

2. Curiously, the father adduced no evidence to support an inference that the mother was influencing the child against the father, either deliberately or inadvertently. In any event, the mother refuted the allegation,[38] and she was not seriously challenged about that evidence.

   [38] Mother’s affidavit, pars 5, 14-18, 20

3. The mother retorted in cross examination “I am not the one who pulled the plug on [town 1]”, which fact is indisputable. The mother confirmed that she had no opposition to the father maintaining written communication with the child, which the child would apparently enjoy. The Family Consultant confirmed the child felt “it would be nice”[39] to receive written communication and presents from the father. The mother asserted that her opposition was to only personal interaction between the child and father because of the child’s clearly and repeatedly expressed views.

   [39] Affidavit of Family Consultant, page 4.4

4. The father did adduce hearsay evidence about the maternal grandfather’s denigration of the father in the presence of the child,[40] but as already observed, the maternal grandfather denied the allegation and vociferously reiterated his denial in cross examination.

   [40] Father’s affidavit, pars 44-46

5. In cross examination the father announced he had been informed by the paternal grandparents that they attended the home of the maternal grandparents around Christmas 2008 with gifts for the child, at which time they watched as the maternal grandparents disposed of the presents in the garbage bin and were told that the maternal grandparents do not even see the mother and child.

6. That evidence is difficult to accept, and I reject it for a number of reasons. Firstly, it was credibly denied by the maternal grandfather, who seemed quite genuinely shocked by the allegation. Secondly, the allegations were not mentioned before, either in the father’s affidavit or to the Family Consultant when he complained about alienation of the child.[41] Thirdly, the evidence was not verified by the paternal grandparents, who were not called as witnesses.

   [41] Affidavit of Family Consultant, pages 4.1, 5.4, 6.2

7. The Family Consultant said in cross examination she did not glean the impression from her consultation with the child that the child was being alienated from the father. The single expert in the prior litigation formed the same opinion.[42]

   [42] Exhibit A, pages 51-52, 57

8. I am not satisfied that there is any substance to the father’s belief that the child is being alienated from him by any member of the maternal family.

Circumstances generally

1. As already observed, application of the Rice v Asplund principle is a manifestation of the paramountcy principle, namely that the child’s best interests ultimately informs the outcome of the litigation (ss 60CA, 65AA).

2. The child received the counselling previously ordered by the Court.[43] She found it “very helpful”, but is not desirous of its continuation.[44] It has made no appreciable difference to her attitude about spending time with the father. She remains discernibly anxious about the prospect of being face-to-face with the father,[45] and expresses a clear wish not to be forced to spend time with the father or any member of the paternal family.[46] Given her age, some weight must logically be reposed in her views. I accept the submissions of the mother and Independent Children’s Lawyer to that effect, and also the evidence of the Family Consultant that the child’s maturity is commensurate with her age.

   [43] Mother’s affidavit, pars 8-9

   [44] Affidavit of Family Consultant, page 5.1; Maternal grandfather’s affidavit, par 8

   [45] Affidavit of Family Consultant, page 4.2

   [46] Affidavit of Family Consultant, pages 4.3, 4.5, 5.0

3. The child is not averse to written communication with the father. She has told both the mother and Family Consultant that she would like to receive mail from the father.[47] As already explained, that has not occurred, despite the existing orders making express provision for it.

   [47] Affidavit of Family Consultant, pages 4.4, 7.6

4. Valiant efforts were made to faithfully implement the orders made in August 2008. The Family Consultant considers that it would not be in the best interests of the child to enforce her attendance at the contact service to ensure her interaction with the father, either now or in the future.[48]

   [48] Affidavit of Family Consultant, pages 5.3, 8.6, 9.1

5. Enabling the litigation to proceed to another comprehensive hearing would entail further assessments of the child by the Family Consultant or single expert witness, which the Family Consultant considered would cause the child unnecessary trauma.[49] The child has already endured the knowledge of litigation between the parties about her over a period of many years, during which she has been variously interviewed by members of the NSW Joint Investigation Response Team, the sexual assault unit, the single expert, counsellors, and the Family Consultant. The Family Consultant was strongly opposed to any outcome that would entail the child’s continued involvement with professionals or the contact service, which corroborates the opinion expressed by the single expert in the prior proceedings.[50]

   [49] Affidavit of Family Consultant, pages 8.4, 8.5

   [50] Exhibit A, page 56

6. The father alternatively submitted that, rather than proceed to another comprehensive hearing over revised parenting orders, the Court may alternatively proceed to a hearing confined to the narrow issue of use by the child and father of a different contact service. As was observed in SPS v PLS at [83]:

   …the rule [in Rice v Asplund] may not impede hearing an application for a small alteration [to existing orders], which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.

7. I reject that submission for reasons which will be shortly explained in relation to the father’s submission that the order dictating use of a particular contact service is merely a “machinery” order. A change of existing orders limited to only that aspect will not cure the impasse that currently exists with the child’s refusal to spend time with the father.

8. The father has sensibly contemplated whether the child should be compelled to interact with him. He eventually decided that it was in her best interests to do so,[51] but his contemplation of the possibility that it may not be in her best interests is both a demonstration of some objectivity by him, and recognition that his subjective conclusion may be incorrect.

   [51] Affidavit of Family Consultant, page 6.3

9. The evidence establishes that the child is thriving,[52] even without the benefit of a meaningful relationship with the father. Her progress should not be compromised by enforced re-introduction of the father to her life, against her wishes and contrary to the evidence of the Family Consultant.

   [52] Mother’s affidavit, par 6

Avoidance of the principle?

1. An alternate submission made by the father was that the litigation could be conducted to finality without offence being caused to the Rice v Asplund principle.

2. He contended that the appointment of J contact service in lieu of some other contact service to facilitate the time spent by the child with the father was not a substantive order in itself, but rather a “machinery” order, liable to be varied so as to enable implementation of the substantive parenting orders with no interference to the integrity of the substantive orders.

3. In support of his proposition the father cited authority (see Moliere & Van Wyk (1980) FLC 90-911). For completeness, it should be observed that authority has been the subject of repeated approbation (see Marriage of Ravasini (1983) FLC 91-312 at 78,125 – 78,126; Marriage of Warwick (1983) FLC 91-342 at 78,310; Marriage of Phillips (1985) FLC 91-634 at 80,126 – 80,127).

4. In its consideration of the issue, the Full Court has preferred use of the term “consequential orders” to “machinery orders”, and has identified the essential question as one of differentiation between consequential orders, which can be varied or modified, and substantive orders, which cannot (see Ravasini at 78,127). However, the authorities uniformly relate to substantive orders dealing with the adjustment of parties’ property interests. None deal with substantive parenting orders. The father was unable to cite any authority for the proposition that an order appointing a specific person or organisation to supervise interaction between a child and a parent is merely a consequential order rather than a substantive parenting order.

5. I am strongly inclined to the conclusion that the father’s submission is flawed. There is no power to vary a substantive property adjustment order, other than by resort to s 79A of the Act, hence the need to differentiate between substantive and consequential orders when amendment is sought. That situation is distinguishable from cases involving substantive parenting orders, which orders the Court does have power to vary or amend when warranted by changed circumstances. Parenting orders are intended to be final, but they are never immutable. The ratio of the authorities is not therefore readily applicable in instances of substantive parenting orders.

6. Nevertheless, it is unnecessary to express a concluded view. Even if such an order was merely procedural or consequential, the father was ultimately impelled to concede that his submission was futile. If the existing orders about the designated contact service were amended or supplemented, as mere consequential orders, without repugnance to the Rice v Asplund principle, it is clear that the child would still now resist personal interaction with the father whichever contact service was utilised. The amended orders would make no difference to the current impasse. In order to rectify that difficulty, amendment to the substantive parenting orders would be necessary, and the father would still need to overcome the impediment presented by Rice v Asplund. I have already concluded he cannot.

7. In any event, the father’s alternate proposal for use of a different contact service is superfluous. The existing orders already make provision for use of an alternate contact service in the event that J contact service at Town 1 ceases to be able to provide the supervision required by the orders.[53] The father was bound to concede that he had not availed himself of the opportunity to use an alternate contact service, despite the circumstances being ripe since April 2010. The child’s attitude has ossified in the time elapsed since then, and there is no realistic prospect of the father resurrecting the orders by belated resort to Order 16.

   [53] Order 16

Conclusion

1. It follows that the father’s application to discharge existing parenting orders and proceed to litigate over appropriate substitute orders should be dismissed.

2. Although the mother abandoned reliance upon the application for further orders in her Response, that application should also be formally dismissed.

3. Costs are reserved for 28 days in accordance with the Family Law Rules.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 15 July 2011.

Associate: 

Date:  15 July 2011