DARCY and EVANS
[2021] FCWA 81
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: DARCY and EVANS [2021] FCWA 81
CORAM: O'BRIEN J
HEARD: 17 MARCH 2021
DELIVERED : 12 MAY 2021
FILE NO/S: PTW 2576 of 2013
BETWEEN: MS DARCY
Applicant
AND
MR EVANS
Respondent
Catchwords:
PARENTING - Where the wife has commenced proceedings seeking to set aside parenting orders made following a trial - Where there is a long history of litigation, including two trials, and the wife maintains various beliefs as to risk issues which were found at both trials to be unsupported by evidence - Consideration of the rule in Rice and Asplund - Where the only matter raised by the wife demonstrating a change of circumstances sufficient to justify further litigation is the question of whether the child should change schools - All other aspects of the application dismissed.
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Ms Hossen |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Perth Divorce Lawyers |
Case(s) referred to in decision(s):
Banks & Banks (2015) FLC 93-637
Darcy and Evans [2019] FCWA 253
Dautry & Wemple (2018) FLC 93-876
Elmi & Munro (2019) FLC 93-912
Evans and Darcy [2019] FCWA 274
Evans and Evans [2015] FCWA 73
Evans and Evans [2018] FCWA 238
Evans and Evans [2019] FCWA 63
Finton and Kimble [2020] FCWA 7
Keehan v Keehan (2019) 60 Fam LR 276
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Poisat & Poisat (2014) FLC 93-597
Rice and Asplund (1979) FLC 90-725
SCVG & KLD (2014) FLC 93-582
Searson & Searson (2017) FLC 93-788
SPS and PLS (2008) FLC 93-363
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Darcy & Evans has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1On 14 November 2019 [Ms Darcy] (“the wife”) filed an initiating application seeking the discharge of all previous parenting orders made in relation to [the child] born in 2010, final orders granting her sole parental responsibility, “full custody”, and providing for any time the child is to spend with [Mr Evans] (“the husband”) to be “conducted under the direct supervision of a government approved agency/supervisor”.
2By his response filed on 30 January 2020, the husband sought the dismissal of that application on the basis that there has been “no material change in circumstances since the making of final orders on 29 November 2018”.
3The wife filed an amended application on 6 February 2020, seeking additional orders as outlined later in these reasons. The husband’s amended response filed 7 April 2020 maintained his position that the application should be dismissed short of trial.
4The issue of whether the wife’s application should be so dismissed was argued on 17 March 2021, and I reserved my decision. I incorporate in these reasons the various judgments delivered over the long history of proceedings between these two parties and specifically referred to below.
5For the reasons that follow, I conclude that the wife’s amended application should be dismissed, other than in relation to the discrete issue of the child’s schooling.
The rule in Rice and Asplund
6Where, as in this case, parenting orders concluding proceedings have been made the legislation does not in any sense preclude further applications being brought. Indeed, the legislation specifically empowers the court to discharge, vary or suspend all or part of a previous order.
7The principle of res judicata has never applied in parenting cases.[1] Nevertheless, continual or protracted litigation over parenting arrangements is detrimental to the children concerned, and contrary to public policy. That has long been recognised by what is generally described as the “rule in Rice and Asplund”, in which the Full Court said that the principles which should apply in such cases:
“…..are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that… there is some changed circumstances 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…”[2]
[1] Elmi & Munro (2019) FLC 93-912.
[2] Rice and Asplund (1979) FLC 90-725, at 78,905.
8The rule is intended to apply to every case in which final parenting orders are sought to be discharged or varied subsequently.[3] It recognises the benefits of finality of litigation, while also recognising “that considerations acutely relevant to a child’s best interests can change, including, for example, by reference to the child’s age and level of maturity”.[4]
[3] Poisat & Poisat (2014) FLC 93-597, at [13] (“Poisat”).
[4] Ibid, at [41].
9The rule can be applied at any stage of the proceedings.[5] In some cases, the strength of the case in relation to change of circumstances can be evaluated by doing little more than reading the affidavits; in others, cross-examination may be required. Each case must be tailored to its own circumstances.[6]
[5] Miller & Harrington (2008) FLC 93-383.
[6] Transcript of Proceedings, Lowe v Lowe (High Court of Australia, B50/1989, Mason CJ, Dawson and Toohey JJ, 6 April 1990) 11 (Mason CJ).
10An order dismissing an application for parenting orders following the application of the rule is not itself a parenting order.[7] Nevertheless, the application of the rule is closely connected with the nature and degree of change sought to the earlier order and is a manifestation of the “best interests principle”.[8] The nature and extent of the court's consideration of the matters set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) will depend on the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.[9]
[7] Poisat, at [52]-[54].
[8] SPS and PLS (2008) FLC 93-363.
[9] See, for example, SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.
11What is required is a consideration of whether a prima facie case of changed circumstances has been established and, if so, whether that case is a sufficient change of circumstances to justify embarking on a full hearing of the new application.[10] Where that consideration occurs at a preliminary stage, when the evidence is not tested, the applicant’s evidence must be taken at its highest,[11] but the matter is nevertheless determined on its merits, and not by reference to the principles applied to applications for summary dismissal.[12]
The relevant factual background
The parties, the marriage and separation
[10] Marsden & Winch [2009] FamCAFC 152, at [58].
[11] Searson & Searson (2017) FLC 93-788.
[12] Dautry & Wemple (2018) FLC 93-876.
12The wife was born in 1979 and works as [an office administrator]. She is now married to Mr Darcy.
13The husband was born in 1958 and is a project manager. In 1983, he married [Ms Evans]. He has three adult sons from that marriage, which broke down in 2002, at a time when the husband was suffering from mental health issues.
14The parties met in 2005. They were married in a ceremony in [Country A] in 2006, and in a further ceremony in [Country B] later in 2006.
15The parties separated temporarily in 2012, and finally a few months later. They were divorced in 2015. The child remained living with the wife after the parties separated, and has remained in her care throughout.
16The relationship between the parties after the separation was acrimonious. Both contributed to that acrimony.
The first proceedings – leading to trial before Duncanson J
17After their separation, the parties were not able to reach agreement in relation to the child spending time with the husband. The husband commenced proceedings on 16 May 2013. At that time, the child was spending one night a week with him; the wife said that she noticed behavioural issues in the child from that time. Various interim orders were made increasing the child’s time with the husband as those initial proceedings progressed.
18The wife then raised allegations regarding the child’s presentation after returning from his father’s care on 10 August 2013. She described angry and aggressive behaviour, and the child expressing hatred for the husband. She alleged that the child had made disclosures consistent with having been sexually abused by the husband.
19The wife contacted the police and, on 11 August 2013, the child was externally examined at [Hospital A]. The hospital notes described the wife as being “very keen” for the child to be re-examined, despite the view of the social worker from the Child Protection Unit that there was no need.
20The matter was reported to the Department for Child Protection and Family Support, as the Department of Communities was then known (“the Department”). The child and the husband were both interviewed. The Department conducted a safety and well-being assessment, and recorded a view that the allegations were “most likely… a malicious allegation made by mum against dad, as a result of the family court outcome”. The Department found no evidence of any harm to the child.
21The proceedings continued and the wife sought to vary on an interim basis the orders for the child to spend time with the husband. That application was dismissed, and the wife was ordered to attend the “Mums and Dads Forever” program.
22On 13 December 2013, the wife told the husband that she would not hand over the child that day, and that he would shortly receive further court documents. On 31 December 2013, she filed a Form 4 Notice of Child Abuse and Family Violence (or Risk) listing various disclosures allegedly made by the child.
23On 6 January 2014, an order was made for the child to be independently represented. The previous orders regarding his time with the husband were suspended and orders for supervised time were made. The child resumed spending time with the husband on 11 January 2014, supervised by the husband’s adult son.
24On 3 April 2014, the wife attended a meeting with staff at the child’s school, including the school psychologist, regarding concerns about the child’s behaviour. At that meeting she told those present that the husband had sexually and physically abused the child.
25The child continued to spend supervised time with the husband. Professional supervision was arranged and positive reports were received, including a description that the child “appeared equally secure with either parent”. Subsequent reports were equally positive.
26In July 2014, the child had been referred by his general practitioner to a psychologist, [Mr T]. No therapy was provided at that time but, after raising further concerns in February 2015, the wife took the child to Mr T without the husband’s knowledge.
27The proceedings went to trial before the Honourable Justice Duncanson over three days in May 2015. Both parties were self-represented at that trial. The Independent Children’s Lawyer (“ICL”) participated fully in the trial, and the Court also had the benefit of evidence from a previous Single Expert Witness (“SEW”) Psychologist, [Dr H].
28Duncanson J concluded that the husband did not pose an unacceptable risk of harm to the child in spending unsupervised time with him. Relevantly, her Honour made the following findings in her judgment published on 31 August 2015 (“the first trial judgment”):[13]
[13] Evans and Evans [2015] FCWA 73.
(a)that the wife “firmly believe[d] the husband has sexually abused [the child];
(b)that the wife was fixed in her view that disclosures made by the child, and his behaviour, could only be attributed to sexual abuse by the husband, and “could not contemplate another explanation”;
(c)that the wife was not a person who would “readily change her view that the husband has sexually harmed [the child]”, noting that when asked what she would do if orders were made for the child to spend time with the husband she “indicated she would comply with those orders and pray nothing happened to [him]”;
(d)her Honour accepted the evidence of Mr T to the effect that the child was fundamentally “a healthy little kid”, and that while a few aspects of the child’s behaviour and incidents during sessions could be consistent with him having been exposed to “some kind of unusual possibly sexualised experiences”, the child showed no signs of having been sexually abused;
(e)her Honour placed weight on the evidence of the SEW Dr H, who attributed the child’s behaviour issues to a stressful, high conflict situation “possibly paired with a schedule of visitation that did not match his attachment needs as a very young child” rather than those behaviours reflecting sexual abuse;
(f)that the husband did not pose an unacceptable risk of harm to the child if spending unsupervised time with him;
(g)that there was no demonstrated need to protect the child from physical or psychological harm in the care of either parent;
(h)that it was to the child’s benefit to have a meaningful relationship with both parents;
(i)that the wife was a “loving and devoted mother” whose capacity to provide well for the child on all levels was “compromised only by her fear and belief that he has been harmed by the husband and her inability to contemplate an alternative explanation for [his] behaviour”;
(j)that the husband was able to provide for the child’s needs, albeit he took an overly simplistic view of the child’s behavioural difficulties, and might have some difficulty understanding his emotional needs; and
(k)that there had been family violence during the relationship, in respect of which neither party was entirely truthful, and the husband in particular minimised his propensity towards aggressive behaviour. Nevertheless, there was currently no family violence involving the child or any member of his family.
29On 31 August 2015, her Honour made orders for the wife to have sole parental responsibility for the child, but subject to a requirement that she consult with the husband and consider his views before making decisions about major long-term issues. She made further orders for the child to live with the wife and to spend gradually increasing unsupervised time with the husband, progressing to three nights per fortnight during school term and one half of school holidays. Further orders were made in relation to special occasions, handover, travel, and communication and exchange of information between the parties.
30Further orders were made requiring each of the parties to undertake therapy and counselling, and for the parties to do all things necessary to facilitate the child continuing his counselling and therapy with Mr T.
Subsequent events
31Further difficulties arose almost immediately. On 4 September 2015, the child drew a picture at school for Father’s Day. The wife interpreted that picture as having sexual connotations. She made an appointment to see Mr T on 11 September 2015 to discuss it, and a therapy session was arranged for the child. Shortly thereafter, the wife ended the child’s engagement with Mr T, notwithstanding the terms of the orders made by Duncanson J.
32On 16 November 2015, the wife unilaterally suspended the child’s time with the husband. Various further allegations were made and, in late November 2015, the child’s school and the police both provided mandatory reports to the Department. Both parties filed contravention applications.
33On 13 January 2016, existing orders for the child to spend time with the husband were suspended and orders were made restraining the wife from taking the child to any psychologist other than Mr T. Orders were made for the child to spend supervised time with the husband once per fortnight.
The second substantive proceedings – leading to trial before me
34The second proceedings were commenced by the wife on 27 January 2016. In the meantime, the husband had reengaged Mr T. On 2 February 2016, Ms Evans was interviewed by a family consultant and deemed suitable to physically supervise the child’s time with the husband.
35An order was made on 29 February 2016 for the child to be independently represented and for him to spend time with the husband each Sunday from 9.00 am until 5.00 pm. The wife was ordered to facilitate the child’s attendance upon Mr T each alternate Saturday.
36On 3 March 2016, the child was interviewed by the Department and did not disclose anything of concern. The outcome of the Department’s investigation was published on 12 April 2016, concluding that the allegations of risk were unsubstantiated.
37In May 2016, the wife made a complaint to the relevant regulatory body regarding Mr T. She applied for orders discharging Mr T as the child’s therapist and discharging Ms Evans as supervisor. Both applications were dismissed, and [Mr P] was appointed as SEW in the case. Orders were made for the child’s supervised time with the husband to continue and otherwise to program the matter through to a trial.
38In August 2016, the child attended his last therapy session with Mr Dunlop. On the wife’s application, an order was made on 22 September 2016 suspending the earlier order requiring her to facilitate that therapy each alternate Saturday. The wife’s application was based on her allegation that Mr T had struck the child during one of their therapy sessions.
39In the meantime, on 9 September 2016, an officer from the Child Abuse Squad contacted the husband to inform him that the investigation into allegations of sexual abuse of the child had been reopened. The Department in turn commenced an investigation into concerns expressed that the child was suffering emotional harm in the care of the wife.
40In November 2016, a departmental safety plan was put in place. The wife agreed to the plan, but did not agree with the content of the “danger statement” which underpinned it.
41In December 2016, the Department advised the husband that as a result of its investigation, it had concluded that it was more likely than not that the child had experienced emotional harm in the wife’s care. The wife registered her complaints against the investigation undertaken by the Department, both in relation to that matter and more generally. In late January 2017, she was advised that a preliminary investigation found that the complaint warranted more thorough investigation. That investigation was undertaken and, on 9 June 2017, the Department reported that none of the three complaints raised by the wife were upheld.
42In the meantime, the SEW published his report on 13 April 2017. Contravention applications which had been filed by the parties were dismissed by consent on 31 July 2017, and the substantive proceedings went to trial, which commenced before me on 1 August 2017.
43The wife sought sole parental responsibility, without the requirement for consultation previously ordered, and a continuation of the order for the child to live with her. She otherwise proposed that the child spend time with the husband on Sundays and on various special occasions, but under the strict supervision of a professional agency. She proposed that requirement continue until the child is an adult. Implicit in her proposals was the proposition that the child not be “forced” to spend time with the husband if he clearly expressed his wish not to. She sought various other specific issues orders.
44The husband sought an order for sole parental responsibility with a requirement to consult. He sought orders for the child to spend time with him on a steadily increasing basis, to the point where the child would, in each fortnight when the husband was not rostered to work, live with him from the end of school on Wednesday in the first week until the start of school on Monday in the second. He proposed that the child’s time with him be unsupervised. He otherwise sought various other specific issues orders, and injunctions. He proposed that the SEW undertake a review 12 months after the making of orders and provide recommendations to the court as to whether it would be in the child’s best interests to primarily live with him.
45In the context of the present dispute, it is noteworthy that at that time the husband also sought an order restraining the wife from bringing any further application in this Court without prior leave. While not articulated as such, that relief was presumably sought pursuant to s 102QB(2)(b) of the Act. I was not satisfied that the wife had “frequently instituted or conducted vexatious proceedings”, as required by that section, and declined to make the order sought. In so doing I expressly noted the possibility that any further application brought by either party might lead to “an early consideration of the principles articulated in Rice and Asplund”.
46The ICL submitted that serious consideration needed to be given to orders being made for the child to live primarily with the husband, saying that change “may be the best option for [his] long-term emotional well-being”.
47The time initially allocated for the trial was manifestly inadequate and, after six days of hearing, the trial was adjourned part-heard on 7 August 2017. It resumed for a further three days in January 2018, and on 11 January 2018 I reserved my decision. Orders were made for the parties and the ICL to file written closing submissions.
48Shortly thereafter, on 28 February 2018, the wife filed an application seeking to reopen her case to adduce evidence from her now husband. Mr Darcy had sworn an affidavit for the purposes of the trial, upon which the wife sought to rely, but had initially declined to attend for the purposes of cross-examination. In support of her further application, the wife explained that he was now willing to participate in the hearing.
49While the husband opposed the application to reopen, on 3 April 2018, I made orders permitting the reopening of the wife’s case for the limited purpose of Mr Darcy presenting for cross-examination and potentially further evidence–in-chief of an updating nature only.
50The trial resumed on 1 May 2018, and I reserved my decision.
51I delivered judgment on 29 November 2018 (“the second trial judgment”).[14] I discharged all previous parenting orders, made an order for the child to continue living with the wife, and ordered a relatively short period in which the child was to spend supervised time only with the husband, before moving to unsupervised time with effect from 1 March 2019. That unsupervised time in turn was to progress to an arrangement whereby in each fortnight when the husband was not rostered to work, the child would spend time with him from the end of school on Wednesday in the first week until the start of school on Monday in the second week, with appropriate extensions in the event either was a non-school day. Detailed orders were made in relation to holidays and on special occasions, handover, the exchange of information between the parties and travel. Orders were also made restraining the parties from denigrating each other or permitting denigration of the other in the presence of the child, and restraining the wife from discussing with the child his feelings for the husband, the husband’s treatment of him, the living arrangements, and the allegations of physical and sexual abuse.
[14] Evans and Evans [2018] FCWA 238.
52Additional orders were made requiring the wife to forthwith commence counselling with a psychiatrist or clinical psychologist to address her anxiety and beliefs about the husband, and the child’s safety in the husband’s care. Detailed orders were also made for the child to have therapy.
53During the course of her evidence in the second trial, the wife initially at least indicated her agreement with a statement made by two of her witnesses that “all personnel involved in this case appear to have, perhaps unwittingly, forgotten and breached their legal, ethical and moral duty of care, to protect [the child] from the inappropriate adult sexualised behaviours, verbal, emotional and psychological abuse that he has been and clearly continues to be exposed to”. When asked whether she would comply with orders for the child to have unsupervised time with the husband if the court found there was no “danger” to the child in the husband’s care, her immediate response was that she would appeal. She then said that she was unsure, but would “go to Children’s Court or somewhere else, but the child will not [be] exposed to be[ing] victimised again”. Subsequently, when I asked her directly whether if I made an order that the child spend unsupervised time with the husband she would obey that order, she said that she would not.
54The wife was noted by me to be “very direct and clear in her views that the husband was lying about a number of matters” including in saying that the child had never been hurt in a motorcycle accident while in his care. While the focus of the second trial was very much on the issue of risk associated with sexual abuse, the wife had raised allegations in relation to the child’s participation in Motor Cross.
55Relevantly for present purposes, I made the following findings:
(a)that the wife did not acknowledge the importance to the child of his relationship with the husband, admitted to having no trust whatsoever in the husband, and remained entrenched in her belief that he posed a risk to the child;
(b)that the child has meaningful relationships with both parents, and that it was to his benefit for both relationships to continue, provided that benefit was not outweighed by the “potential harm that might be caused to him psychologically and emotionally by exposure to the wife’s fixed views in relation to the husband”;
(c)that the wife’s expressed concerns and beliefs as to the child being at what she described as “serious risk of emotional, psychological and sexual abuse in the [husband’s] care” were genuinely held, but were not supported by the objective evidence;
(d)that nothing in the evidence in the second proceedings would lead to any different conclusion than that drawn by Duncanson J in the first proceedings – that the husband did not pose an unacceptable risk of harm to the child if spending unsupervised time with him;
(e)that the child was, however, at risk of psychological and emotional harm from exposure to the wife’s strong beliefs about the husband, and her actions taken in pursuit of those beliefs;
(f)that the husband had an appropriate capacity to provide for the child’s needs, including his emotional and intellectual needs, and that the wife’s submissions that he was an irresponsible parent were to be rejected;
(g)that the parties had been litigating “almost continuously since May 2013, when the was three”, and that it would “clearly be preferable to make the order least likely to lead to the institution of further proceedings, to the extent that may be possible”. It was not, accordingly, in the child’s best interests to make interim orders, with or without a review by the SEW in 12 months’ time as proposed by the husband;
(h)that in the event the wife did not comply with the orders I proposed to make, she ran “a significant risk” of the court subsequently determining, whether in the context of a contravention application or otherwise, that there should be a change in the child’s primary care; and
(i)that the evidence did not support the proposition that the husband could not be relied upon to safely supervise the child in his Motor Cross activities, and that accordingly the orders sought by the wife to the effect that any motorcycle activities undertaken by the child only be undertaken “at the motorcycle club under the supervision by a professionally trained motorcycle club instructor” (sic) would not be made.
Litigation after the second substantive proceedings
56The husband sought orders for costs of the second substantive proceedings. On 12 March 2019, I ordered the wife to contribute to his costs in the modest sum of $4,000. The order was grounded in the reopening of the proceedings after Mr Darcy reversed his earlier position and made himself available for cross-examination, as earlier described.[15]
[15] Evans and Evans [2019] FCWA 63.
57On 29 October 2019 the husband brought an application in a case seeking to enforce various of the parenting orders, and the costs order. He alleged that the wife had refused to comply with the orders providing for regular telephone communication between the child and the husband, and that she had breached an injunction restraining her from enrolling the child in extra-curricular activities not part of his then routine without his consent. He alleged further that, having enrolled the child in a youth orchestra she then failed to make him available to spend time with the husband as scheduled in the orders, justifying that by reference to the child’s orchestra commitments. He further alleged non-compliance with orders relating to both the child’s therapy and the wife’s therapy.
58Relevantly to the present dispute, the husband said that on 10 October 2019 his solicitors received a letter from the wife’s solicitors, who said they had been recently instructed, saying that on their instructions:
(a)the wife had “continuously raised” with the husband, the ICL and the court her “serious concerns” about the “risk of the child engaging in a high-risk activity (motorcycle/Motor Cross riding)”, and that the husband had “continued to put the child at risk” by allowing him to participate in that activity “without her approval”;
(b)the husband had failed to inform the wife about “the child’s multiple falls” and “failed to recognise that the child ha[d] sustained multiple injuries requiring medical assistance” after those falls, and failed to take him “for even precautionary medical checks” or inform the wife;
(c)on returning to the wife’s care on 3 October 2019 after spending about a week with the husband, the child complained of “stomach pain, head pain and was noticeably unwell, finding it difficult to walk”, reporting that he had fallen from his motorcycle that day and struck his head, but that the husband had failed to seek medical attention or inform the wife;
(d)The child’s condition deteriorated on the evening of 3 October 2019, and after the wife arranged a home visit by a general practitioner he was referred to Hospital A for assessments, including an x-ray and MRI;
(e)those tests had confirmed that the child “had sustained a C-Spine Ligamentous injury, specifically damage to the transverse ligament and an anterior atlantoaxial joint capsular injury with no internal damage being detected”, and “further injuries to the spine diagnosed”;
(f)as a result, the child had been admitted into hospital and was expected to be released “once a full upper body and the (sic) head cast has been fitted to prevent further movement or injury”;
(g)The child was “very upset about the whole experience”, did not wish to see the husband “at this time” and his wishes should be respected, albeit the wife had “advised the child to let her know if he changes his mind and wants to see [the husband] at any stage”; and
(h)accordingly, the child would not be made available to spend time with the husband until further notice.
59On the husband’s evidence, he had tried to contact the child by telephone since 4 October 2019 but his calls went unanswered, and he was not informed of the child’s hospitalisation until his solicitors received that letter. The orders made following the second trial included an order requiring each party to inform the other “as soon as practicable” and keep them informed “as to any medical emergencies or significant medical issues concerning the child” – by the time the solicitor’s letter was received the child had been in hospital for nearly a week.
60The husband denied that the child had been injured while in his care. He said that the child had a professional Motor Cross coaching session on 3 October 2019, and exhibited to his affidavit a letter from the coach saying that the relevant coaching session had gone well and the child had enjoyed it. The coach stated that approximately 30 minutes into the session the child “had a minor fall and lost balance when negotiating a track cut off at low speed”; while the coach did not see the fall he helped the child pick up his bike and checked on his well-being. The child reported that his leg was “a little sore” but that he was otherwise fine, got back on his bike and resumed riding. The training session continued for a further 90 minutes without incident, and the child did not demonstrate any signs of pain or discomfort.
61The husband said that he met with the relevant orthopaedic registrar on 11 October 2019 to make his own enquiries and was advised that the doctor was unable to say exactly when the child sustained his injuries. The husband gave evidence of a number of other activities undertaken by the child while in the mother’s care, including ice hockey, and doing tricks and stunts on his bicycle and scooter at skate parks. The husband accepted the possibility that the child may have been injured while in his care, but was not aware of any incident that could have resulted in injuries of that nature. He denied putting the child at risk, and denied withholding any required medical assistance.
62The child did not require surgery. He was fitted with a body cast and discharged from hospital on 11 October 2019. On advice from his doctors, he was no longer permitted to take part in any contact sport and/or high risk activity.
63On 14 November 2019, the wife filed the initiating application referred to at the commencement of these reasons. She swore a case information affidavit and separate affidavit in support of that application.
64In her case information affidavit, the wife asserted (among other things) that:
(a)The child was currently receiving home-schooling due to his injuries;
(b)the husband “has not assisted” with the child’s care during the marriage or after separation;
(c)the husband had “shown no interest” in the child’s development, his schooling, activities, achievements, health and interests and was undermining all extracurricular activities facilitated by her including ballet, violin, string orchestra and ice hockey;
(d)following the removal of the body cast, the child would require a neck brace for another two months before a decision would be made as to whether he required surgery; and
(e)post recovery, the child would be unable to “play any contact sport or motorbike riding ever again in the future”.
65The wife also stated that she had previously raised before the court her “concerns in regard to the child’s wellbeing in [the husband’s] care and risk of being abused by [him]”, stating clearly that her beliefs in that regard “have not changed”. She went on to detail matters previously ventilated in relation to the sexual abuse allegations, family violence, and the husband’s personality and mental health history.
66In the separate affidavit filed, the wife gave evidence consistent with the content of the letter sent by her solicitor and referred to above, and asserted:
(a)that the child’s diagnosis included the suspicion of a C5 spinous process fracture, and “presumed long-standing anterior wedging of T1 and T2”;
(b)that she had been told by the doctors that the child was “lucky to be alive” and that “one wrong move” could have cost him his life or left him paralysed;
(c)gave her version of conflict between herself, Mr Darcy and the husband in the child’s hospital room;
(d)said that on 12 October 2019 the child declined to speak with the husband on the telephone and told her that he did not wish to speak to “or see his father ever again”;
(e)summarised correspondence from the husband’s solicitors to the effect that the child had never sustained “even a minor injury” as a result of not infrequent falls during Motor Cross;
(f)detailed a previous “incident” in late July 2018 where the child had fallen at Motor Cross and sustained what the husband described as a “graze to his collarbone”, stating that an unnamed doctor had subsequently recommended that the child not undertake any physical activity, but that on 13 August 2018 the husband had “blatantly ignored medical information” by taking the child to play golf;
(g)summarised correspondence from the husband’s solicitors in relation to that “incident”;
(h)confirmed that she had repeatedly told the husband that she did not consent to the child riding a motorcycle; and
(i)said that due to the husband’s “serious neglect” she “had every reason to breach the Court Order and to stop all visits or contacts”, saying further that since unsupervised time had resumed in March 2019 there had been “notable deterioration in many significant aspects of the child’s life”, having previously made specific reference to reduction of his progress in general in his school education, violin, swimming and ice hockey training.
67The wife filed a further affidavit on 26 November 2019 responding to the husband’s affidavit of 29 October 2019. She disputed many of the assertions made by the husband. She asserted that her engagement of the child in commitments in a string orchestra was “not a new activity” but rather a “natural progression of [his] violin studies”, describing the child as very talented. She expressed the view that the child telling his therapist that he had no interest in playing violin was reflective of him trying to please the husband. She described various disputes between the parties as to the scheduling of performances and the like.
68The affidavit included an update in relation to the child’s treatment for his injury. The wife said that the doctor had made it clear that the injury to the child’s cervical spine was acute, rather than long-standing. She described the understandable difficulties the child experienced as a result of having to be in a cast, and his frustration at being inactive.
69The wife described the child’s behaviour changing following the commencement of unsupervised time with the husband, including his behaviour at school; that description, however, described behavioural issues bearing considerable similarity to those which were the subject of evidence at the second trial. She otherwise raised the prospect of the child changing schools, and acknowledged that she had offered to pay the ordered costs of $4,000 at the rate of two dollars per fortnight.
70On 29 November 2019 orders were made varying the primary orders of 28 November 2018 until further order to provide that the child spend time with the husband in each fortnight when the husband is not rostered to work from the end of school Thursday in the first week until the start of school on Tuesday in the second week. Prior to the resumption of that time, the husband was to consult with the child’s treating doctors to ensure that he was properly informed as to all steps required to appropriately care for the child in the context of his injuries and any chronic condition he may have.
71An order was made until further order restraining both parties from permitting the child to “participate in any sport, including but not limited to Motor Cross, ice hockey and skating, or any other vigorous physical activity other than as expressly permitted by his treating medical practitioners” (“the activity injunction”). The parties were otherwise ordered to attend a mediation conference, and the time for the husband to file a response to the wife’s initiating application was extended to 28 days after the completion of that conference.
72The orders just referred to were not made by consent. I delivered ex tempore reasons for making them. I noted the wife’s characterisation of the steps she took to cease all communication between the child and the husband as her “executive decision”. While noting that the factual disputes between the parties could not be resolved on untested evidence, I concluded that the concerns raised by the wife as to the child’s safety could be readily addressed by the making of the activity injunction. I made orders to enforce the resumption of the child’s time with the husband without any requirement for supervision. The variation to the child’s time with the husband just referred to, while not ordered by consent, was based on the common position of the parties that if time was to be ordered those timeframes were appropriate.[16]
[16] Darcy and Evans [2019] FCWA 253.
73The husband filed a further application in a case on 6 December 2019 seeking urgent orders to suspend the primary orders providing for the child to live with the wife, and for the child to live with him until further order. Various other interim orders were sought. In his affidavit filed in support of that application, the husband deposed to his compliance with the orders made on 29 November 2019. He described an incident which he said occurred at court in the presence of the child immediately after the hearing on 29 November 2019, involving an angry outburst by the wife. He described himself as being unemployed with no immediate plans to return to paid employment, and accordingly being available to care for the child on a full-time basis. He also filed a contravention application.
74The wife filed a response to the husband’s application in a case on 18 December 2019. She sought orders suspending the orders made on 29 November 2019 “until such time that the child has fully recovered from his injury”, and that the issue of the child spending time with the husband be “adjourned until such time that the Department of Child Protection investigates an allegation of serious neglect of the child by [the husband], followed by their report; after receipt [of] a comprehensive report with recommendations by the Orthopaedic Surgeons from Hospital A; and provision of all relevant information regarding the child’s injury”. She sought the appointment of a new ICL, and that the child change schools.
75In her affidavit filed in support of that application, the wife stated that her reason for not facilitating the child’s scheduled time with the husband since 5 December 2019 was her “experience and strong belief that [the child] is not safe when he is in [the husband’s] care based on [his] constant neglect to [the child’s] well-being”, the husband’s inability to recognise when the child needs medical attention and his failure to follow the recommendations of medical professionals, and asserted developments and complications in the child’s medical condition since the making of the orders. She described complications which had arisen, including a “trench mouth infection” (which self-evidently arose while the child was in her care) and expressed the view that changes in the child’s care would not be in his best interests. She denied involving the child in “any conflict or parental dispute or family court matter”.
76In my absence, the matter came before the Chief Judge on 20 December 2019. Her Honour made orders for the child to spend time with the husband from 9.00 am on 21 December 2019 until 5.00 pm on Christmas Eve, and thereafter in accordance with the previous orders. She ordered the wife to strictly comply with that order, with a recovery order to lie in registry pending that compliance. In the event that the recovery order issued, the child would move into the care of the husband on an interim basis. The wife’s response filed on 18 December 2019 was otherwise dismissed.
77Her Honour delivered ex tempore reasons for her decision. She was not satisfied that there was any cogent evidence before the court that the child’s treating medical professionals had expressed the opinion that in light of his current medical condition he should not be spending time with the husband. She further observed that there was no cogent evidence to support the mother’s contention that the father was incapable of properly seeing to the child’s needs.[17]
[17] Evans and Darcy [2019] FCWA 274.
78The parties attended a mediation conference with a senior registrar of the court as ordered on 2 January 2020. While the registrar noted that the parties made a genuine effort to resolve issues, and the conference occupied a full day, no agreement was reached. A procedural conference was scheduled for 6 February 2020; at that conference the wife indicated her intention to file an amended application.
79On 6 February 2020 the wife filed an amended initiating application. In addition to the orders earlier sought she sought final orders:
(a)for the child to participate in sport or physical activities only if “sanctioned by a suitable medical practitioner”;
(b)for the child to spend time with the husband on alternate weekends from 9.00 am Saturday to 7.00 pm Sunday, under the “direct supervision of a government approved agency/supervisor”;
(c)requiring the husband to take various detailed steps while the child is with him, including limiting junk food, ensuring that the child brushes his teeth, has showers, washes his hair, completes his homework and practices his violin;
(d)detailing steps she proposed in relation to extracurricular activities and the payment of associated costs;
(e)proposing detailed arrangements for holidays and special occasions; and
(f)proposing detailed injunctions and specific issues orders in relation to communication between the parties.
80She sought interim orders for supervised time but also sought orders for the child’s psychologist [Ms V] to be “instructed to engage forthwith in therapy sessions with the child in order to explore and investigate” matters related to the sexual abuse allegations made in 2015, a motorbike accident in October 2015, the motorbike accident in October 2019, and numerous other matters. In addition, she sought to subpoena the husband’s mental health records from 2002, with various supportive orders including an order for a psychiatric assessment of the husband to be undertaken, and other specific orders.
81On 7 April 2020 the husband filed his amended response, seeking the dismissal of the wife’s amended application “by applying the rule in Rice and Asplund”, that the final orders made on 29 November 2018 as subsequently varied remain in full force and effect, and that the wife pay his costs.
82No further steps were taken until 14 December 2020 when the wife filed a contravention application, asserting that the husband had breached the order restraining the parties from permitting the child to participate in any sport by permitting the child to play Tee-Ball on 5 December 2020, and had further breached the relevant order by permitting the child to engage in vigorous physical activities by using a waterslide and jumping into a swimming pool from a “jumping board”. The wife filed a Notice of Child Abuse and Family Violence (or Risk) with that application. In her supporting affidavit she referred to the matters just mentioned, and said that at the child’s most recent medical review he had been warned “to avoid contact activities”, and that he should not run, jump, play sport or engage in physical activities at school other than gentle swimming. The interval in his spine was to be regularly monitored, on the basis that if the interval should become wider than 6 mm, surgery would be required.
83Those documents were accompanied by a further application in a case filed by the wife, seeking the suspension of the existing interim orders for the child to spend time with the father, and again seeking that any such time be “conducted under the direct supervision of a government approved agency/supervisor at the [husband’s] cost”.
84In my absence, that application was listed urgently before the Honourable Justice Moncrieff and was heard on 16 December 2020. His Honour made an order until further order, without finding and on an ex parte basis, restraining the husband and his agents from “causing, permitting or suffering the attendance of [the child] at any sporting activity, including Tee-Ball for which he has already been enrolled, without leave of the Court or written consent of [the wife]”. His Honour otherwise made orders for service of the documents, and for the matter to be listed before me for directions on 11 January 2021.
85The husband filed a response on 5 January 2021 seeking the dismissal of the wife’s application in a case, the discharge of the order made by Moncrieff J, and orders to facilitate the child’s participation in Tee-Ball. In his affidavit, he noted:
(a)written advice from the child’s specialist at the Hospital A in November 2019 that the child should not be “on a motorbike as well as needs to avoid contact sport…”;
(b)further written advice from the doctor working with the specialist, dated 8 January 2020, confirming that the child was making a “good recovery” but that he “needs to avoid high adrenaline pursuits including motorbiking… and contact sport for a further three months”;
(c)verbal advice given by the specialist on 12 February 2020 that the child should “avoid high risk activities such as motor cross and high energy contact sports” but that he could ride a bicycle and scooter;
(d)verbal advice given by the specialist on or about 5 May 2020 confirming that the child could ride a bicycle and scooter (albeit the husband said that he would prefer that the child did not, due to the risk of a fall) and that “the guidelines would be staying away from high-risk physical sports and motor cross riding”; and
(e)written advice from the doctor working with the specialist in November 2020 confirming that the child should avoid “contact activities as well as motorbike riding given the high risk of those activities”.
86He expressed the view that the child playing Tee-Ball was entirely consistent with the medical advice already received. Nevertheless he said that he had written to the doctors specifically seeking clarification on that point and at the date of swearing the affidavit was awaiting a response.
87The husband filed an amended contravention application on 6 January 2021.
The definition of issues for determination
88The proceedings came before me for directions on 11 January 2021. The husband confirmed his intention to proceed with his application for the wife’s amended substantive application to be dismissed short of trial. As the wife is self-represented, I provided her with a copy of a relevant judgment of the Chief Judge, which summarises the rule in Rice and Asplund[18] and other relevant authorities.
[18] Finton and Kimble [2020] FCWA 7.
89The parties were given liberty to file an affidavit limited to evidence addressing the issue of whether circumstances relevant to the child have changed since the second trial such that the orders made at that time as subsequently varied in November 2019 should be discharged or varied. They were also given liberty to file written submissions. The matter was listed to 17 March 2021 for argument on that discrete issue only.
90The husband filed his affidavit on 12 February 2021. After briefly outlining historical matters already referred to in these reasons, he noted that the orders made on 29 November 2019 in the context of the enforcement proceedings had varied the orders made at the second trial both to adjust the timing of the child’s time with him to reflect that which the parties had adopted, and by “addressing future risk in relation to the child engaging in sporting activities”. He said further that “with the exception of times when [the wife] has withheld the child” he has spent time with the child pursuant to the trial orders as varied, that time was going well, and in his view the child had adapted well to the arrangements.
91He said further that since the orders were made at the second trial he continues to work on a roster that facilitates the orders, he remains living in the same home, the wife has moved house but only a short distance, and otherwise there had been no change of circumstances other than the child getting older with the passage of time.
92The wife filed her affidavit on 15 February 2021. In that affidavit, she set out what she would contend to be the relevant changes of circumstance since the second trial, as follows:
(a)she referred to the shoulder injury suffered by the child while riding his motorcycle on 29 July 2018 (i.e. prior to the second trial), and what she would assert to be subsequent neglect by the husband. In that regard, she referred to correspondence which occurred at the relevant time, and an x-ray taken after a referral by her general practitioner, which she says noted “mild widening of the AC joint. Mild proximal migration distal clavicle. The findings may support a ligamentous injury”;
(b)she said that the husband did not seek medical assistance for the child following the injury, and did not inform her of it. She described the steps taken by her, and noted that his general practitioner gave the child a medical certificate saying that he would be unfit for activity requiring use of his right shoulder until 14 September 2018;
(c)she said further that the husband permitted the child to play golf when that was contraindicated by his injury;
(d)she stated that she has on numerous occasions stated firmly to the husband that she does not consent to the child riding a motorbike;
(e)she referred to the child falling from his motorbike on 2 April 2019 and again on 28 May 2019, asserting that the husband did not inform her on either occasion;
(f)she asserted that after 28 May 2019 the child began experiencing headaches, and that she informed the husband;
(g)she referred to the child’s injury on falling from his motorcycle on 3 October 2019 as outlined in detail earlier in these reasons, and his subsequent diagnosis and treatment;
(h)she rejected the husband’s evidence about the child doing tricks and stunts on his bicycle or scooter while in her care, and outlined the extent to which the child had trained and played ice hockey, noting that the child attended eight training sessions between 28 March and 20 June 2019, seven further trainings between 20 June 2019 and 19 September 2019, and played in three matches. She said that the child did not receive any injuries, nor “fall in a wrong way, apart from specific ice hockey training of landing on the knees on ice”, and that he wore protective gear at all times;
(i)she referred to the child playing basketball with the husband on 3 March 2020, and playing in a swimming pool as noted earlier in these reasons, and to the husband enrolling the child in Tee-Ball;
(j)she asked that the court “revise and consider all concerns” raised by her in relation to “the child’s previous motorbike accident which occurred in 2015”;
(k)she said that on 31 March 2020 the child came home from spending time with the husband with a fever, and that the husband had not taken any steps to address it;
(l)she referred in detail to various matters she had raised prior to the second trial;
(m)she asserted that since the commencement of unsupervised time with the husband the child had demonstrated behavioural change, including behavioural issues at school;
(n)she referred to matters relating to the allegations of sexual abuse previously raised in the proceedings, saying that her “strong belief remains that the child continues to be in 100% risk of possible abuse by [the husband]”;
(o)she said that the husband confiscates the child’s mobile phone when the child is in his care, that the husband denigrates her and her husband and inappropriately discusses court related matters with the child, and that since his injuries the child spends too much time playing computer games while in the care of the husband;
(p)she criticised the husband’s care of the child’s hygiene;
(q)she said that the child does not enjoy his present school and wishes to change schools, that the husband will not agree, saying further that the husband will not cooperate with her efforts to have the child tutored;
(r)she said that the husband “continues to undermine, sabotage and quash any progress and success in every activity the child has enjoyed” and in which he has talent, including ballet, violin and ice hockey, saying for example that because a particular string festival was scheduled for a time when the husband was to have the child in his care she “had no other choice but to breach” court orders to facilitate the child’s participation; and
(s)finally, she says that the husband is uncooperative in facilitating changes to care arrangements to enable the child to celebrate [cultural] religious occasions with her.
93The husband filed written submissions on 9 March 2021 in which the relevant legal principles were summarised, as was the husband’s evidence already referred to.
94The wife filed a witness affidavit sworn by her husband on 10 March 2021. In short, the evidence of Mr Darcy was consistent with the evidence of the wife.
95The wife filed a further affidavit sworn by her on 16 March 2021 saying that on 19 February 2021 she was told by the child’s school chaplain that on 16 February 2021 the child had presented as being anxious and scared that his father would “steal [him]” and take him away from the wife and his home. She described a confrontation between the parties at school on 11 March 2021, responsibility for which she attributed to the husband.
Discussion and conclusion
96It must first be borne in mind that the application of the rule in Rice and Asplund to the wife’s amended substantive application is not an “all or nothing” proposition. It is entirely possible that changed circumstances since the making of final orders following the second trial might justify a re-examination of some matters, but not others. As earlier noted, the application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
97It is appropriate, therefore, to consider the various elements of relief sought by the wife and the application of the rule to them.
Parental responsibility
98At the second trial, I agreed with the conclusion drawn by Duncanson J following the first trial that these parties are incapable of the level of communication and consultation necessary to properly sustain equal shared parental responsibility. That position appeared to be agreed, in that both parties sought orders for sole parental responsibility.
99I did not consider it appropriate for the husband to have sole parental responsibility in circumstances where the child was to continue living primarily with the wife. By the same token, I concluded that the wife’s decision-making in relation to significant issues affecting the child in the long term was questionable, noting for example that she sought orders for the child to move to a new school, with specific orders being made to ensure that school received no information about his complex background. I concluded that the statutory position, whereby in the absence of an order to the contrary each parent would have parental responsibility, supported by a series of specific issues orders to provide a clear framework for decision-making about those issues was in the child’s best interests.
100The wife now seeks an order for sole parental responsibility. She continues to regard the husband as being irresponsible, and to regard herself as the person uniquely placed to make decisions for the child’s benefit.
101The wife’s views in that regard are completely unchanged from those which she expressed at the second trial. To the extent she points to the injuries suffered by the child subsequent to the second trial as examples of irresponsibility on the part of the husband, those complaints simply repeat those made previously. It may also fairly be observed that the wife has at all times been vehemently opposed to the child riding motorcycles while in the care of the husband, even in controlled conditions, while herself happily involving him not simply in ballet and violin, but in training for and playing ice hockey which is notoriously a high contact sport with associated risk of injury.
102The obvious present communication issues between the parties are themselves unchanged from those present throughout the earlier proceedings.
103There is nothing in the changed circumstances asserted by the wife, taken at their highest, to justify further litigation in relation to the issue of parental responsibility.
Supervision of the child’s time with the husband
104It must be remembered that the wife sought strict supervision of any time the child spends with the husband at both the first and second trials. While in each case that was sought primarily because of her expressed concerns that the child was at risk of sexual abuse at the hands of the husband, that was not the sole reason. At both trials, express findings were made that there was no unacceptable risk to the child in spending unsupervised time with the husband; following the second trial, the recommencement of unsupervised time was delayed only to facilitate the wife participating in ordered therapy to address her issues with it.
105It must also be noted that notwithstanding the findings made, it is clear that the wife maintains her steadfast belief that the child has been sexually abused by the husband in the past, and is at risk of abuse in the future. That belief is completely unsupported by the evidence.
106The events since the second trial which relate to the child’s injuries, outlined in detail above, both reinforce the wife’s long-standing belief that professional supervision of the husband’s time with the child is required, and are relied upon by her as justifying a revisitation of that issue. The first point is irrelevant for present purposes; the second is not made out. Even taking the wife’s case at its highest, the risks associated with the child participating in vigorous activity, motorbike riding, or contact sport are addressed by the injunctions and other orders already made in the context of the enforcement applications and which the husband concedes should continue in force. Similarly, they address the additional orders sought by the wife at paragraphs 4 and 5 of the orders listed in her amended application.
107There is nothing in the changed circumstances asserted by the wife, taken at their highest, to justify further litigation in relation to the issue of supervision of the husband’s time with the child or in relation to injunctions regulating the child’s participation in various physical activities.
Involvement of Ms V and consequential orders
108The wife seeks an interlocutory order for the child’s psychologist Ms V to engage in therapy sessions with him to “explore and investigate” various matters including matters related to the earlier allegations of sexual abuse, a motorbike accident on 28 October 2015, and subsequent motorbike accidents and events. She then seeks various final orders predicated upon the receipt of a report detailing the result of those “investigations”, and the court then determining that the child’s time with the husband need not be supervised.
109For reasons which do not require repetition, there is no proper basis for the engagement of Ms V or for that matter any professional to “explore and investigate” events occurring prior to the second trial. There is no proper basis asserted as to why the child’s psychologist should investigate the circumstances of the motorcycle accidents. There is insufficient evidence to support the proposition that the alleged incident on 18 January 2020 when the child is said to have run away from the father’s care, and the husband’s reaction to that incident, should be in any sense investigated.
110The final orders made after the second trial already require the parties to strictly comply with the recommendations of the child’s therapist, including as to the continuation of his therapy. There is accordingly no basis for any orders to be made which simply reinforce that position.
111The wife seeks interlocutory orders permitting her to subpoena the husband’s mental health records from 2002, consequential orders requiring the preparation of a report as to diagnoses made in 2002, followed by a reassessment of the husband’s “current mental health status” by an unnamed psychiatrist “who is aware of [his] full mental illness history”.
112There is nothing in the evidence presented by the wife since the second trial, even taken at its highest, which could justify orders of the nature sought.
Variation of detailed orders for the child to spend time with and communicate with the husband
113While on the face of the document, the very detailed orders sought by the wife to vary and define the child’s time and communication with the husband are predicated upon receipt of the proposed investigative report from Ms V, the proposed medical report as to historical diagnoses, and the proposed psychiatric assessment of the husband (none of which are to be ordered for the reasons just outlined), it is nevertheless appropriate to confirm that there is nothing in the wife’s evidence taken at its highest to justify the proposed complete revisitation of the detailed orders made following the second trial.
Injunctions and specific issues orders
114The wife proposes that the husband be ordered to ensure that the child has a healthy diet, brushes his teeth, showers, completes his school homework, and practices his violin. No changed circumstance is identified by her to justify litigation in relation to matters of that nature.
115The wife seeks injunctions restraining the husband from denigrating her and her husband, and from engaging the child in discussion of court matters. There are already similar injunctions in place, which were ordered after the second trial. There is no changed circumstance identified in the wife’s evidence such as to justify revisiting those matters, nor the additional injunction, proposed in the same context, restraining the husband from “threatening the child with police intervention”. To the extent the latter point might be intended by the wife to be directed towards the orders made by the Chief Judge for a recovery order to lie in registry to secure her compliance with existing orders, it is misconceived.
116The wife also seeks various other orders, in relation to attendance at school functions and the like, restraint from changing the child’s place of residence to any place outside the Perth metropolitan area, and the provision of information between the parents where those orders are already in place. Nothing further need be said in that regard. Similarly, she seeks an order restraining the husband from removing the child’s mobile phone from him; that issue was addressed by the orders of 29 November 2019.
117She also seeks an order for the husband to “participate in payments for all costs in relation to the child’s medical and educational needs, of [an] amount proportional to the time spent by [the husband] with the child”. She sought similar orders at the second trial, and I declined to make them noting that no proceedings in relation to child support were properly on foot. That remains the case.
118The wife seeks an order that the husband be restrained from bringing the child into contact with one of the husband’s adult sons unless supervised by a government approved supervisory service. There is already in place a final order, to which the husband consented, restraining him from bringing Alex into contact with Samuel except as strictly supervised by either the husband himself, another adult son of his, or Ms Evans. The wife points to no changed circumstance justifying a revisitation of that order.
119The wife also seeks an order whereby if the child is prescribed medication for ADD, ADHD “or any other psychological condition that he may have been diagnosed with in the future” the parties be restrained from administering that medication to him without the written consent of the other party. No evidence is adduced in support of that proposed order, and I note that the wife’s case is that no such diagnosis has been made. Both parties are already restrained by injunction from taking the child to any medical practitioner, hospital, therapist or other health professional without the prior consent of the other, unless in an emergency, and with the exception of any therapist appointed pursuant to the primary orders and his GP. They are also restrained from consulting any medical practitioner, counsellor and/or therapist about issues relating to the child other than as provided in the primary orders without the other party’s prior consent. The wife points to no changed circumstance justifying a revisitation of that order. It is accordingly unnecessary to consider the obvious issues which would arise in the making of an injunction restraining a parent from administering prescribed medication to a child.
Schooling
120The parties are already restrained by injunction from changing the child’s enrolment from his current school without the prior consent of the other party. The wife’s amended substantive application seeks an order for the child to change his current school and be enrolled at the [School A] in the 2020 academic year. While on the face of the document that order is sought on an interim basis, it is nevertheless squarely raised. The proposed change is opposed by the husband.
121Uniquely in the raft of relief sought by the wife, the evidence adduced by her since the second trial if taken at its highest would support at least a proper consideration of whether or not it is in the child’s best interests to change his current school. That aspect of the wife’s application, if she still seeks to pursue it given the passage of time, should be permitted to continue so that it may be determined on its merits.
Conclusion
122It follows that, in my view, the wife’s amended initiating application filed on 6 February 2020 should be dismissed other than to the extent that it seeks orders to facilitate the child changing schools.
123I propose to hear further from the parties as to whether all outstanding applications for interim and interlocutory relief should also otherwise be dismissed, and as to whether or not either seeks to pursue contravention applications already filed. In considering their respective positions, the parties would do well to bear in mind the observations of the Full Court that Division 13A of Part VII of the Act is “directed only to ensuring continued and future compliance with operative parenting orders as distinct from performing any separate or discrete role of deterrence from, or punishment of, non-compliance with orders”.[19]
[19] Keehan v Keehan (2019) 60 Fam LR 276, per Kent J at [22].
124I will also hear further from them as to any necessary procedural orders in that regard.
Proposed orders
125Noting that the effect of these orders is that the orders made on 29 November 2018 as varied by the orders made on 29 November 2019 and 20 December 2019 remain in full force and effect, including but not limited to the order contained in paragraph 5 of the orders made on 29 November 2019 restraining both parties from permitting the child to participate in any sport, including but not limited to Motor Cross, ice hockey and skating, or any other vigorous physical activity other than as expressly permitted by his treating medical practitioners:
1.The amended initiating application of the wife filed on 6 February 2020 is dismissed save and except to the extent that it seeks orders facilitating the enrolment of [the child] at [School A].
2.The amended response of the husband filed on 7 April 2020 is dismissed other than in relation to the issue of [the child’s] schooling and the question of costs.
3.The order contained in paragraph 1 of the orders made on 16 December 2020 is discharged.
4.Within 28 days from the date hereof, any party seeking an order for costs must file and serve written submissions in relation to that application.
5.Within 28 days thereafter, the other party/parties must file and serve any written submissions in response.
6.Within 14 days thereafter, each party have liberty to seek a relisting of the costs proceedings for the making of oral submissions, failing which, the presiding Judge proceed to deliver reasons and orders from Chambers without the necessity for a further appearance by any party.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
GA
Associate to the Judge
12 MAY 2021
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