Deere and Blight

[2017] FCCA 3354

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEERE & BLIGHT [2017] FCCA 3354

Catchwords:
FAMILY LAW – Parenting – leave to re-open parenting proceedings – Rice & Asplund.

Legislation:

Family Law Act 1975

Cases cited:

Farrelly & Farrelly [2017] FCCA 2472

King & Finneran [2001] FamCA 344

Marsden & Winch [2009] FamCAFC 152

Rice & Asplund [1978] FamCA 84

SPS & PLS [2008] FamCAFC 16
Searson & Searson [2017] FamCACF 119

Applicant: MS DEERE

Respondent: MR BLIGHT

File Number: SYC 3714 of 2017

Judgment of: Judge Henderson

Hearing date: 18 December 2017

Date of Last Submission: 18 December 2017

Delivered at: Sydney

Delivered on: 18 December 2017

REPRESENTATION

Counsel for the Applicant: Ms Eldershaw

Solicitors for the Applicant: Broun Abrahams Burreket

Counsel for the Respondent: Mr Levy

Solicitors for the Respondent: York Law Family Law Specialists

Counsel for the Independent Children's Lawyer: Mr Blumberg

Solicitors for the Independent Children's Lawyer: Blackman Legal

ORDERS

1. The application made by the applicant mother to re-litigate and reopen the parenting matter is granted.

2. The matter is listed for mention on 30 April 2018 at 09:30am.

3. Both parents are at liberty to telephone the child when he is residing at the other parent’s home whenever they choose to do so.

4. Each party shall facilitate the child contacting the other parent whilst he’s not in their care on any occasion he deems appropriate.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3714 of 2017

MS DEERE

Applicant

And

MR BLIGHT

Respondent

REASONS FOR JUDGMENT

1. This is an interim decision in the matter of Deere & Blight.

2. The mother seeks to reopen parenting proceedings in relation to the parties’ son, X born on (omitted) 2009. The orders were made by consent in 2012, some five years ago, when X was two. He is now eight.

3. The orders were comprehensive and sought to deal with X’s parenting post him attending big school when he was of age. The father opposes the reopening. The Independent Children’s Lawyer supports the reopening.

4. The father asserts that the mother has not discharged the onus to satisfy the Court that the circumstances of the child have so changed, or significantly changed, such that the Court would reopen final parenting orders. In other words, the Rice & Asplund[1] argument.

   [1] Rice & Asplund [1978] FamCA 84.

5. Ms Eldershaw, of counsel, acted for the mother. Mr Levy, of counsel, for the father. Mr Blumberg for the Independent Children’s Lawyer.

6. The material I read as follows:

   a)For the mother:

   i)Amended initiating application filed 11 December 2017;

   ii)Affidavits of 17 November and 20 November;

   iii)Affidavit of Ms I, X’s former treating psychologist filed 9 November;

   iv)Affidavit of her husband, Mr J, filed 20 November 2017;

   v)A case outline produced by her lawyer.

   b)For the father:

   i)Affidavit of 20 November 2017;

   ii)Affidavit of his mother, Ms H, 20 November 2017;

   iii)Response of 21 July 2017.

   c)The parties jointly tendered Court exhibit 1, which were the notes of the psychologists’ practice that X attended in 2016/ 2017, called (omitted) Psychology.

Short chronology

1. The mother was born in 1979, the father in 1976.

2. They met in (country omitted) in 2006 and they commenced living together in (omitted) 2006.

3. They were married on (omitted) 2007.

4. X was born on (omitted) 2009.

5. They separated very shortly after his birth in (omitted) 2010.

6. Final parenting orders were made on 23 April 2012.

7. The mother remarried on (omitted) 2014, and she now has a daughter, X’s sister born (omitted) 2017.

8. The mother commenced these proceedings on 15 June 2017.

9. Now, the parties did not, as was contemplated in the consent orders, engage in a six night father and eight night mother care regime upon X commencing school. They implemented an equal time arrangement for about 20 months.

10. The father asks in a letter, from his lawyers to the mother’s lawyers, on 31 August 2016, that she lodge the child’s passport with the registry as was contemplated in the orders.

11. At that time the mother had not travelled overseas. The father asserts that after this letter the mother then insisted on strict compliance with the consent orders and the six/eight regime commenced.

12. However, even on the father’s own evidence, that is not the full story of the change. The father was aware, from at least July 2016, that the child was attending (omitted), as is evident from paragraph 208 of his affidavit. That paragraph reads as follows:

    Without my consent, Ms Deere arranged for X to attend (omitted) psychologist. I only became aware she had taken X to (omitted) in around July 2016 when she sent me an SMS which said, “If it is okay with you, I would like to give your number to Ms I the psychologist, I see with X regarding his sleeps and worries, so she can include you in his progress, as you are a big part of his life.” And the father responded, “Okay.”

13. I accept that the father was not contacted by the psychologist until something like March 2017, despite the mother having informed the father she would give her his number in July 2016. The mother says the father agreed to psychological assistance. The father said he did not. That is a matter for a final hearing.

14. However, as I see it, although I might criticise the mother in perhaps not involving the father prior to the child commencing this therapy or following up that the father had been involved and checking that the father knew what was going on, it is not good enough for the father who knew his son was receiving therapy, that he was to receive communication from the psychologist about his son to take no steps to follow these matters up and merely criticise the mother. The father did not ask the mother about how things were going with the psychologist. He merely complained about the mother’s contact. Both parties needed to do be proactive in this regard.

15. It is clear at least, at that time, on the father’s own evidence that the mother informed him the child was attending this organisation. I do not accept the father’s submission he did not know his son was attending (omitted) until 2017, as his own affidavit is to the contrary.

16. However, it is the mother who bears the onus of proof. She sets out the reasons why she has brought this application to the Court, and they commence at paragraph 20 of her affidavit of 20 November 2017, and are as follows.

17. At paragraph 19, the consent orders do not provide for the mother and child to spend time on Christmas Eve and Boxing Day.

18. There is no provision to travel to non-European destinations and consent is required in some European countries for this travel.

19. The deterioration in the relationship with the father does not give her comfort she would be able to negotiate these matters.

20. The major changes, she says, are listed in paragraph 20:

    X, who was a toddler at the time the consent orders were made, will soon be eight years of age.

    By virtue of his age, his opinions and his view and the type of person he is need to be given proper consideration in the context of his maturity and the circumstances he finds himself.

    My household has changed. I married Mr J on (omitted) 2015 and my daughter, A, was born on (omitted) 2017.

21. X was an only child when the consent orders were entered into. The father has changed to live permanently with his mother at (omitted). At the time the consent orders were entered into, the parties lived close together in (omitted). The father rented a unit in (omitted) to minimise travel for his son, but has since moved to (omitted).

22. I make no criticism as he lives with his mother and that is a mutually-beneficial arrangement for him and his mother and for X, as he sees his paternal grandmother regularly and he has very strong attached relationship with her. Distance is now a factor.

23. The real concern for the mother is X’s emotional and psychological wellbeing is being compromised. She says he has low self-esteem and anxiety and the father has been averse to X obtaining counselling or intervention to help him.

24. That she and the father have different parenting styles, and that this has become more apparent and more significant as X grows.

25. That the parents previously rather good co-parenting relationship has deteriorated on a slow-burn sort of a basis since 2016.

26. Going to paragraph 73, the mother says this:

    Since early 2017, X has been more anxious and sad because of the following: his nails are bitten shorter than usual and I observe they often bleed. I walk X to school and he says, “I just want to be close to you.” On a much more regular basis, he says to me, “I love daddy and miss him, but I want to live here. I want to be with you and my friends.”

    He has a good appetite, but the mornings of the day when he goes into Mr Blight’s care on a Tuesday morning, his appetite is not what it usually is. Sometimes he will lie in the living room on those days and cry, “I’m really sad. I will miss you.”

27. At paragraph 69, the mother says the father sent a message to her on 19 September 2016. This was at the time the mother revered back to the consent orders from the equal time:

    I have no doubt you are just getting back at me, which is not in the best interests of X:

    You should focus on your space and home and figure out why X does not sleep well at your place only. It is ridiculous to say that X has anxiety. X does not have any need for a psychiatrist.

28. Paragraph 72:

    My relations with Mr Blight deteriorated further in 2016 and we were unable to agree to a number of matters.

29. This is one of the reasons the mother says she reverted to the orders of the Court.

30. At paragraph 77, the mother says:

    X’s last session with Ms I was on 13 June 2017 after Mr Blight wrote to (omitted) advising he did not consent to X’s ongoing treatment and all treatment must cease immediately.

31. At paragraph 78:

    On 25 July 2017, Mr Blight wrote: “You tell X what you want him to say. You tell Ms M what you want her to write. Then you run to Court and put it all against me. Not normal behaviour of a caring parent.”

32. It is concerning to the Court that the father thinks what the mother has done to assist their son is designed to put him down and make arguments against him. It is not. It is seeking treatment for what the mother says are concerns as to her son’s behaviour and presentation of anxiety, which I will refer to later.

33. There are issues with the parents about the child’s extracurricular activities. His father insisting he play (instrument omitted) and engage in (hobby omitted) when he apparently loves to play (omitted).

34. There were issues about him attending (hobby omitted). It is apparent the parties can’t agree. He only plays (hobby omitted) every second weekend and misses out on training when with his father. He has reported he does not like (hobby omitted) or playing the (instrument omitted).

35. There are issues about the father having moved to (omitted) and the now travel time for the child to his school in the (omitted) area. That is a matter for final hearing, but it is another factor that the mother raises.

36. Looking at the law, the most, recent decision – and there are many decisions in this area of law and they say the same thing in a different ways – is a decision of the Full Court of Searson & Searson[2] effectively Justice Murphy’s decision.

    [2] Searson & Searson [2017] FamCACF 119.

37. I was referred to the decisions of Farrelly[3] and King & Finneran[4], Justice Collier’s decision. The principles are well-known to the Court.

    [3] Farrelly & Farrelly [2017] FCCA 2472.

    [4] King & Finneran [2001] FamCA 344.

38. Going to the latest decision of Searson & Searson[5], Murphy J says that:

    In these applications, which are threshold issues, of a prima facie level, the Court must accept the evidence of the person agitating for the application as it is presented to them, unless, of course, there was cogent evidence showing it was completely incorrect.

    [5] Above, note 2.

39. That principle applies to the mother and the father’s evidence.

40. His Honour says, at paragraph 16 in rephrasing the oft-termed old time words of the decision of Marsden & Winch[6] a decision of Justice Warnick in SPS & PLS[7], that the requirement for a judge to follow is:

    It should be a requirement for a prima facie case of changed circumstances to have been established and for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on hearing, knowing that embarking upon a hearing involves a child in litigation, something that the Courts are keen to minimise, involves parents in stress of being involved in litigation, and incurs costs and expense, and all those matters are clear.

    The evil is undoubtedly harm to children of a perennial football match between parents and the canvassing again and again of issues relating to their best interest.

    [6] Marsden & Winch [2009] FamCAFC 152.

    [7] SPS & PLS [2008] FamCAFC 16.

41. His Honour says this, importantly:

    That situation can, in my view, be distinguished from circumstances in which parents express their agreement about parenting arrangements in consent order, but are now no longer in agreement, and where it is said that the now absence of agreement is due to circumstances that have changed since the making of the consent orders.

42. This is precisely the factual matters raised in this case and I they are well within that principle and statement of fact and law by his Honour.

43. The father’s evidence is that he sees none of the troubling and concerning behaviour in his child that the mother describes in her affidavit and is referred to in the report of Ms I, who is on affidavit and whose report I have read. Does not believe his child needs therapeutic assistance; that view is clear in his affidavit and in the notes from Ms I. Has a belief that the mother is putting the child under pressure and that there is some hidden agenda here perhaps to reduce his time.

44. Going to his affidavit at paragraph 18. It is most unfortunate when lawyers express matters in this fashion in family law proceedings:

    The orders sought by Ms Deere do not support the complaints she makes in her affidavit. I contend she is seeking to elevate and put a spin on that, with a view to paint a picture that X is not coping or that the current arrangements are not in his interests. I contend her assertions are disingenuous.

45. That is an extremely critical comment to make in circumstances where, as I will refer to later, the mother’s position is far from disingenuous. It is based on cogent evidence.

46. Paragraph 118 of his affidavit.

    I am concerned that Ms Deere is causing X unnecessary distress and is attempting to paint a picture to X about everyday events and situations which are simply not correct. For example, she reported after we were in Court in July that the child did not want to attend school. The father went to a meeting with the school and became aware that X had become upset with some of his classmates. They called him names. His teacher was aware of the incident and recommended some strategies. This incident was not serious and was a one-off.

47. Unfortunately, it is not a one-off. It was serious issue for X with children of his own age. His father spoke to him about this matter and said, “Mummy and I spoke with Mr G about the boys in your class calling you names.” X responded, “I don’t want you or mummy talking to Mr G. I told mummy I didn’t cry. I wasn’t sad.” The father says, “If the boys call you names, you want me or mummy to talk to Mr G, just tell us.” The child says, “I do not need you to talk to Mr G. I am happy and everything is fine.”

48. The father takes that comment from a clearly stressed child at face value.

49. At paragraph 51 the father says in his affidavit.

    From my observations, X coped well with the week about arrangement. I did not observe any changes in his sleeping pattern, behaviour or eating. Ms Deere did not raise any complaints with me about the week about arrangements and X spending overnight time at my parents’ … until around mid-2016.

50. Yet, looking at the father’s own affidavit at paragraph 105, the father says.

    In about March 2016…Ms Deere sent me an SMS. She said words to the effect, “X is having a disrupted sleep. I took him to see a ….. herbalist. They gave him some tea. Herbalist says, “He’s not sleeping properly because his kidney energy is low.”

51. It is clear that the mother informed the father in March 2016 that she was having trouble with their son’s sleeping arrangement. That the father did not observe this in his care did not observe X being anxious in his care is not the point. The mother observed it and she informed the father.

52. Paragraph 58 of the father’s affidavit:

    About this time, Ms Deere arranged to meet with me to speak about X’s sleeping patterns when he’s in her care.

53. That time was in August 2016. The mother has raised, since at least March 2016, difficulties with X’s sleep, and she would say, on her evidence, is anxiety and behaviours.

54. The father’s paragraph 58 is inconsistent with paragraph 105, as the mother had she raised the sleeping problems in March 2016, not August 2016.

55. Paragraph 85 of the father’s affidavit:

    X is a happy and energetic child and when in my care he sleeps through the night without waking. I’ve not observed X to be sad or anxious when he comes into my care, during the time he’s in my care or when leaving my care.

56. I accept, entirely that is how the child is in his father’s care.

57. At paragraph 117 the father says:

    Since X stopped attending (omitted) Ms Deere has sought consent for X to attend upon an alternate psychologist and requested that the school principal refer X to the school counsellor. I have not consented to X attending upon any psychologist or counsellor, as I have not observed changes or difficulties with his behaviour that would warrant him seeing a psychologist or a counsellor.

58. The father completely dismisses the plethora of evidence the mother has presented about the changes in behaviour and the anxieties and difficulties X has in her care. He simply does not accept them and is clearly averse to a psychologist. In fairness to the father, at the time of this interim hearing, he had agreed his child would attend upon a clinical psychologist, Dr V and the mother would pay those costs, as there is an issue of that cost for him.

59. The father says he had agreed to the same order with a Mr L in July 2017. Mr L is not a clinical psychologist. The father wanted this therapeutic intervention to be confidential. The mother and independent children’s lawyer do not agree to this. However, as the Independent Children’s Lawyer said, X needs help and due to his father’s stance he has not had any help since June 2017, and he needs that assistance now and if in order to g et that help the therapy is to be confidential so be it.

60. The father does not agree to Ms I continuing to deal with his son or have any part in these proceedings.

61. In her report Ms I talks about X’s his presentation:

    He’s a shy, softly spoken, cooperative six year old boy.

62. Over the course of their relationship he had built up the capacity to ask for what he wants. He is now eight and she commenced seeing him in 2016. He initially saw a Ms B and then Ms I. When he first came to see the psychologist, it had limited eye contact and he mumbled.

63. X told Ms I he was worried about the dark, sleeping by himself; worried about his father’s emotions, worries that he is sad when he’s not with him; worrying about anger in his father, such as his desire to end a Skype call; worrying about missing out on experiences at both homes when he’s not there. He wanted to duplicate himself, so he didn’t miss out on experiences or relationships and to please others by being present with them.

64. In 6 February 2017 he spoke about wanting there to be four of him, so he could be with all of his families and relatives. At that time X was living in three homes: his mother’s home, his father’s apartment in and his grandmother’s home. Currently he is in two homes and that will be a positive for him.

1. He reported the fun he has with his cousins and his peers. For example it is most important to him that he plays with his peers. He had a problem asserting himself with his friends and peers and didn’t think people would listen to him. The message he wasn’t listened to was a constant theme in therapy with, both with his peers and his father. X said his dad didn’t listen to him at times. For example, not wanting to play the (instrument omitted) and doing (hobby omitted).

2. X repeatedly said to Ms I – and I will read her notes out later – that he cannot express his wishes to his father, due to fear of getting him angry. It is more a fear of disapproval, rather than harm. He described in the report he had to meditate with his father, of having to hold his hands out straight for hours. I accept his father did not make the child but this is his perception of that event. He has repeatedly talked about not wanting to upset his father. Ms I says:

   Due to X’s passive and willing to please nature and avoidance of conflict, he is at risk of being bullied.

3. X has been bullied on a family holiday, when friends were not playing with him and behaving badly. He has been bullied at school, an incident the father reported on. Ms I asked whether he used his loud voice, with friends and his father. He instantly replied “Not with my dad. He may get angry.” X told Ms I the Skype calls with his father are boring and he wants to play, but his dad says, “I can’t go.”

4. Ms I was aware she had not seen his father and has only had one meeting with his father, and she described that meeting. Ms I made an interesting comment, that from her brief meeting with the father, he desired that X have two separate lives and attends two separate (hobby omitted) teams as an example.

5. When the issue of the distance from the child’s home and school to the father’s home at (omitted) was raised, the father’s solution was that the child could attend a school mid-distance. The mother argued this this would be a difficulty for X as he would miss out on his current friends and peers and his (hobby omitted) team.

6. There is an emerging parallel parenting which the mother has recognised is a problem for X, she and the father. Extracurricular activities are becoming an issue.

7. Going to Ms I’s notes and paraphrasing the matters most salient as I see it.

8. X liked to:

   Be with Mum, dad go to the beach with my cousins, park with my friends, with my mum and her husband, playing with my cousins, playing with my friends, wrestle time with Mr J, playing a (omitted) game, going to sleep when I’m tired, swimming with my friends and cousins.

9. Clearly, he loves his family and has a fun time with them.

10. I found Ms I’s report even handed. It was not critical of the father or mother; she was reciting the facts from her therapeutic intervention with the child, repeating what he told her and what the mother says.

11. The father objects to Ms I continuing, because the (omitted) group commenced therapy with their son without his consent and he does not feel comfortable, or perhaps trust, them to now do the right thing by his son. That may be correct or not.

12. I agree that the mother and the step-father signed the consent forms and I criticise the mother for that. It was inappropriate. I would have hoped that after reading Ms I’s report and after a careful reading of the notes, as Mr Levy did on behalf of the father, the father could see what I saw: a clinician wishing only to assist a child with his anxieties and concerns and recognising she had only seen the father once and making no critical comment about the father. However, that is not the father’s position.

13. On 13 October 2016, X describes to Ms I as living in three homes, that his father does not listen to him, will not let him off Skype.

14. That he loves (hobby omitted). It is clear that X loves (hobby omitted):

    But dad will not take me on the weekend and I miss out. He says to me, “I have other plans.”

15. This is a theme for X his dad not listening to him.

16. On 14 November 2016:

    “Daddy does not listen to me.” For example, like (omitted) and (instrument omitted).

17. He is worried about his father’s feelings:

    Worried about hurting dad’s feelings.

18. Notes of 6 February 2017:

    He is worried about his dad being sad and lonely. He loves school and (hobby omitted). “I am only able to attend (hobby omitted) every second weekend. Dad does not take me.”

19. This is a perpetual theme for X.

20. Worried about his dad, being sad and lonely. Ms I impressed upon X:

    It is important to be able to tell adults how you are feeling.

21. X responded:

    I do not tell my dad. He will get angry with me. I cannot tell him what I want. Like when I was three and had to do my meditation and keep my hands in the air for hours. And the (instrument omitted) hurts his neck.

22. This is a reporting of the child perceptions not the truth of what did or did not happen.it is the child’s perception. It is significant X is reporting that he cannot tell his father what he is really feeling.

23. This conversation was reported to the father on 4 May 2017. The father was most surprised that his son was worried about him, worried about his dad feeling sad and could not tell his father these things. The father could not think of any reason why his son would say these things to Ms I.

24. The father’s attitude to his son playing (hobby omitted) each second weekend only is of concern. (hobby omitted) is a love of his life. This behaviour of the father supports X’s statement that his dad does not listen to him. Parents are often asked to travel kilometres and hours on a weekend, in intact families, to support their child playing sport. It is no different in a separated family.

25. The father’s idea that X this child can split himself between two (hobby omitted) teams and attend a school mid-way to both homes is rather more parent focused than child focused and speaks rather more of the father’s needs than what child needs. Attending a school halfway between his parents would result in him having few real friends in the area he lives.

26. When Mr Blumberg spoke to the child, X said he feels burdened. This was noted in Ms I’s notes as well He is burdened by the dispute between his parents; he is burdened by the fact they do not get on and are not communicating. He is cognisant of this. He is burdened by these disputes about (hobby omitted), (instrument omitted), Skype, (activity omitted) and other matters that concern him.

27. The disputes are clear: extracurricular activities, distance travelled therapeutic intervention and Skype calls and an inability to communicate about these matters for X’s best interests rather than taking a position. The father clearly distrusts the mother’s motive for going to (omitted), yet, X does exhibit anxieties, which the mother has described to Ms I and which she has observed.

28. To say the mother is disingenuous in the light of this evidence causes the Court concern as to the father’s capacity to focus on what is really happening for his son, as opposed to how he might be feeling about the mother’s application and the Court proceedings generally.

29. The father appears not to accept that the child behaves differently in the mother’s household and his household. This is not unusual. He cannot accept the mother’s description of the child’s behaviours yet expects the mother and the Court to accept his descriptions. Fortunately, he has agreed to therapeutic intervention, which the mother will pay for.

30. On 11 May 2017, Ms I reports the mother said the child had been crying at bath time saying:

    I miss dad and when he does really fun stuff, I do not have much to do there. I do not have many fun times at dad’s.

31. This is something to father should take on board.

32. Thus, the question is now: has the mother satisfied the Court of a sufficient change in the child’s circumstances to warrant a re-opening.

33. The mother has.

34. It is now five years since the orders were made and a two year old child and an eight year old child are vastly different. X is maturing and coming to express his own position and, clearly, feeling the significant difference in each parent’s household and what I might call, parallel type of parenting that may be occurring.

35. He has a new sister and his mother is remarried. He now lives in two homes rather than three, which is a positive for him.

36. There has been a significant and progressive breakdown in the parents’ ability to co-parent X as he grows and changes, which he is clearly cognisant of.

37. There is a concerning attitude of the father to the mother raising issues of the child’s behaviour as long ago as March 2016 and only now following it up. I cannot believe he did not check up what was happening with his son after March 2016.

38. There is a lack of ability to agree on extracurricular activities. Very important activities for children as they grow. The father showed a worrisome attitude to the needs of his son which is he can play in two (hobby omitted) teams and attend a school equidistant between his parent’s homes. That is, X is living in a split world and X may now be coming to realise this.

39. If these issues are not addressed by his parents and they are the only people who can address them, X may be forced to choose. The father would do well to heed some of his son’s comments and accept that the child does behave as he does in his mother’s household and particularly about (hobby omitted).

40. There has been many changes and many changes in circumstances since the orders were made impacting upon X.

41. Are they sufficient to justify reopening this matter?

42. Despite a re-opening leading to potential litigation and a burden upon the child in being reinterviewed and the parents having to go through the Court process, I find the reasons are compelling and lead to a need for the matter to be re-opened in X’s best interests.

43. Only the Court process will get to the issue of what is happening. There has been a total lack of cooperation or ability of the parents to agree on getting to the bottom of their son’s behaviour. The father’s insistence that any therapeutic intervention be confidential was a significant issue for the mother and understandable.

44. I find that the mother has clearly made out her case, on cogent, compellable evidence and that there has been such a significant change in X’s circumstances that the Court must reopen this matter.

45. Using Ms Eldershaw’s submission, if I did not do so, I would not be making an order in X’s best interest and it would be an appealable decision.

46. The issue that falls to me to consider is orders 9 and 10 of the consent orders in relation to the Skype and telephone call. Despite the fact the orders provided for a six eight regime the child was to have three times a week telephone or Skype contact with each of his parents. That amount of time given the arrangement of living with his parents in my view, approaches being harassing for the child, and it clearly has been. They have not worked and X has made a significant complaint to Ms I and to his mother.

47. There is agreement in relation to Dr V to provide therapeutic intervention which will not be reportable unless by consent.

48. I form the view, given X’s age, that there need be no order in place specifically for telephone or Skype time. This child can ring his parents whenever he wants to.

49. Both parents are at liberty to telephone their child at the other parents home when they choose to do so. I seek today to relieve him of those burdens, and get his parents back on the same page in his parenting.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 9 February 2018