Farnworth & Farnworth
[2024] FedCFamC2F 1094
•26 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farnworth & Farnworth [2024] FedCFamC2F 1094
File number: DGC 2069 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 26 July 2024 Catchwords: FAMILY LAW – Application to review decision of Senior Judicial Registrar – application by mother to reopen proceedings – consideration of Rice & Asplund and section 65DAAA of the Family Law Act 1975 (Cth) – HELD no significant change of circumstances and not in the best interests of the child to reopen proceedings – application for review dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAAA, 65DAAA(1).
Family Court of Australia (Family Law) Rules 2021 (Cth) pt 14.3.
Cases cited: Rice & Asplund (1979) FLC 90-725
Whitehill & Talaska [2024] FedCFamC2F 768
Division: Division 2 Family Law Number of paragraphs: 44 Date of hearing: 25 July 2024 Place: Melbourne Counsel for the Applicant: Mr Potter Solicitor for the Applicant: Wellington Legal Services Pty Ltd Counsel for the Respondent: Ms Skinner Solicitor for the Respondent: Gale Family Law ORDERS
DGC 2069 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FARNWORTH
Applicant
AND: MR FARNWORTH
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
26 JULY 2024
THE COURT ORDERS THAT:
1.The Application for Review filed 10 July 2024 be dismissed.
2.If the Respondent seeks to be heard on the matter of costs, he notify the Chambers of Judge Blake by email on or before 2 August 2024 at 5:00 pm.
THE COURT ORDERS BY CONSENT THAT:
3.The Mother and Father each be and are hereby restrained by injunction from making any recording of any telephone communication or audio-visual communication between the child X born in 2010, and the other parent.
AND THE COURT NOTES THAT:
A.In the event the Respondent wishes to be heard on the matter of costs, the matter will be listed for Mention before Judge Blake.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE
(delivered ex tempore, revised from transcript)
This is an application by the mother to review orders made by a Senior Judicial Registrar (‘SJR’) of this Court on the 26 June 2024 (‘Review Application’). On that date, the SJR made orders that dismissed the mother’s application, which is contained within her response filed 23 January 2024, to reopen parenting arrangements relating to the child X, born in 2010, (‘the child’). The SJR also made orders that the mother pay the father’s costs of her application fixed in the sum of $7,822.00 within six months.
BACKGROUND
The parties helpfully prepared a Statement of Agreed Facts which also contained a Statement of Issues in Dispute. This document is reproduced as Annexure A to these reasons.
MATERIAL RELIED ON
The mother relied on her Review Application filed 10 July 2024, an affidavit of 18 July 2024, an outline of case filed 18 July 2024, her notice of risk filed 23 January 2024, the report of Dr B filed under affidavit affirmed 27 June 2022, the first family report of Ms C dated 1 July 2021 (‘First Family Report’) and the second family report of Ms C dated 31 August 2022 (‘Second Family Report’).
The father relied on his outline of case filed 22 July 2024, his affidavit of 29 May 2024, as well as the expert reports referred to in the paragraph above.
The parties referred to the transcript of the hearing of 6 June 2024 that occurred before the SJR, and I have considered the transcript in the course of reaching my decision.
POSITION OF THE PARTIES
In pursuing the Review Application, the mother asked the Court to effectively reopen litigation between the parties concerning the child. The particular orders sought on this occasion are that the Court grant leave to the mother to reconsider the final parenting orders dated 10 October 2022 (‘Final Orders’), that the Court make orders for a child impact report to be conducted, and that the matter be referred to further case management.
The father seeks dismissal of the Review Application.
In the course of the hearing, and before me, both parties consented to the making of an order that whatever the outcome of the mother’s Review Application, that neither the father or mother record any conversations that occur between the child and the other parent.
LEGAL PRINCIPLES
Part 14.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) deals with applications to review decisions of registrars. The Court must hear an application for review as an original hearing.
Section 65DAAA of the Family Law Act (Cth) (‘Act’) deals with reconsideration of final parenting orders and is set out below:
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
It is apparent from the text of subsection (1) that is not a precondition to reconsidering final parenting orders for the Court to find there has been “a significant change of circumstances”. Rather, the text of the provision reveals that whether there has been a significant change of circumstances is simply one circumstance that the Court must consider in determining whether it is in the best interests of the child for the final parenting order to be reconsidered.
In Whitehill & Talaska [2024] FedCFamC2F 768, Judge O’Shannessy considered whether there was a difference between what section 65DAAA requires and what was required by the old rule in Rice & Asplund (1979) FLC 90-725 at paragraphs [6]-[19] as follows:.
[6]Final orders are meant to be final. From 6 May 2024, Parliament replaced the previously applicable body of law known as the rule in Rice & Asplund (1978) 6 FamLR 570, (1979) FLC 90-725 (‘Rice v Asplund’) with section 65DAAA of the Act. The rule in Rice & Asplund was a body of Judge made law to the effect that once final parenting orders were made further litigation about parenting orders would not be heard unless there had been a sufficient change in circumstances that warranted reopening litigation about children’s arrangements. The settled rationale of the rule was that repeated litigation about children was usually not in the best interests of the children involved and should be avoided. That body of law was refined, elaborated and explained over and over again in various decisions of the Family Law Act courts. This body of law developed consequential or attached rules as to evidence and procedure, but always retained flexibility to deal with the multitude of factual matters that arose, in the best interests of the children. The inquiry to ascertain whether further litigation would be permitted was often described as a “threshold hearing”.
[7]In the Lexis Nexis (or ‘Lexis Advance’) electronic commentary on the Family Law Act 1975, under the heading:
‘[s 65DAAA.10] Court not to reconsider a final parenting order unless it has considered whether there has been a significant change in circumstances: s 65DAAA(1)’,
Professor Richard Chisholm sets out his understanding of what I now describe as the “old” rule in Rice & Asplund. With respect it is convenient to, and I do, adopt his description of the rule. Professor Chisholm opined as follows:
A pre-2024 Full Court summary of the principle is Stern & Colli [2022] FedCFamC1A 95 at [22], in which the Full Court said:
The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the [applicant] has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
(emphasis added)
[8] Expressions of the rule included the following:
…the court would need to be satisfied that there was some changed circumstance which would justify such a serious step [as entertaining an application to reverse an earlier …order], Rice & Asplund at 78,905-6.
…it cannot logically be in the best interests of the child/ren to embark on further litigation…unless it is first demonstrated that a sufficient change in circumstances has occurred…, Carriel & Lendrum (2015) FLC 93-640.
…Where an application is dismissed at a preliminary stage [it is dismissed]… because…there is an insufficient change of circumstances shown to justify embarking on a hearing…Searson & Searson (2017) FLC 93-788, Murphy J at [11].
[9]The “new” section 65DAAA has been in operation since 6 May 2024 and provides as follows:
65DAAA Reconsideration of final parenting orders
(1)if a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
(emphasis added and the matters at (2)(a) to (2)(d) are referred to hereafter as ‘the four matters’)
[10]Although always considered through the prism of the best interests of the children, the frequently accepted or orthodox recitation of the rule in Rice & Asplund, required that there must be a prima facie change of circumstances sufficient to justify embarking upon a further inquiry as to what parenting orders were in the best interests of the children with all the trouble, grief and strife for all involved that often entailed.
Section 65DAAA(1)(b) governs section 65DAAA
[11]On my understanding of section 65DAAA the governing, or central, provision is section 65DAAA(1)(b). I repeat section 65DAAA(1)(b):
65DAAA Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)…
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(emphasis added)
[12]The starting point is that the Court “must not reconsider the final parenting order unless…”, and those words must be given meaning. But on its face, section 65DAAA does not require a change of circumstances or provide that there must be a prima facie change of circumstances, rather, whether there is or is not a change of circumstances must be “considered” and all of the circumstances must be taken into account including section 60CC and whether there has been a change of circumstances. This is, on the face of the new section, a difference of substance not merely of emphasis when compared to the orthodox recitation of the rule.
[13]Section 15AB of the Acts Interpretation Act 1901 (Cth) provides I may have regard to extrinsic materials such as documents, not included in the Act or section itself, known as an explanatory memorandum or the record of Parliamentary speeches or debates:
Section 15AB Use of extrinsic material in the interpretation of an Act
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
…
The explanatory memorandum
[14]The explanatory memorandum to the amending Act that inserted section 65DAAA includes the following:
97.New section 65DAAA codifies the common law rule established by Rice and Asplund (1979) FLC 90-725 and elaborated on in subsequent cases, that is, where final parenting orders are in place the applicant must establish that there has been a significant change of circumstance since the making of the orders before those orders can be reconsidered. The rule is founded on the notion that continuous litigation over a child or children is generally not in their best interests.
(emphasis added and footnote as in the original, see footnote 6 below that reproduces footnote 3 of [97])
[15]Those authorities referred to at [97] of the explanatory memorandum could be described as the seminal authorities, or the usual suspects, of the jurisprudence of the rule in Rice & Asplund. It is significant that the explanatory memorandum refers to a “codification” of the rule in Rice & Asplund and those seminal authorities with apparent approval. Hence, I am satisfied the context to section 65DAAA or the “mischief” Parliament intended the new provision to remedy is that continual or repeated litigation about children’s living arrangements is usually contrary to the best interests of the children involved, as was the premise of the rule in Rice & Asplund.
The second reading speech
[16]I also take into account the second reading speech on 29 March 2023 where, inter alia, it was observed that the insertion of section 65DAAA:
[…] codifies existing case law about the reconsideration of parenting orders, making it clear that it must be in the best interests of the child, and a significant change in circumstances must have occurred, for an existing parenting order to be reconsidered.
(emphasis added)
[17]However, the clear text of the new provision must prevail. Whether or not significant change or a prima facie significant change of circumstances was always a fundamental requirement, or a “must” for reconsideration of final orders, it is clear enough that it is not an absolute requirement for the “reconsideration” of final orders under section 65DAAA. Rather the absolute requirement continues to be the best interests of the child/ren. Clearly, if after considering the issue it is determined that there has been a “significant change in circumstances”, the circumstances would more powerfully contend for the final orders to be “reconsidered”. But the absolute or mandatory requirement remains the Court’s consideration of the best interests of the children.
[18]So, in determining whether it is in the best interests of the child for the “final” order to be reconsidered, the engine room provision of section 60CC must be had regard to, and the court should consider any matter relevant to that test and the court may consider the four matters described at section 65DAAA(2)(a), (b), (c) & (d). But the context is the same underlying premise of the rule in Rice & Asplund.
[19]Taken as a whole, I understand the provision to mean those four matters should be had “regard to” unless the circumstances of the case meant a provision did not or could not apply.
(footnotes omitted)
THE MOTHER’S CASE
The mother’s case, reflected in her submissions and in her evidence to the Court, is, among other things, that:
(a)She is presently living in Suburb D, 50 kilometres from the child’s school and that she could take the child to school every day and be more involved in her life;
(b)She has ended her relationship with her previous partner Mr E. At the time of the Final Orders, she says Mr E was present in her life, and there had been incidents of family violence towards her;
(c)She has completed her mental health treatment and counselling following the making of the Final Orders. She has attached various letters, the last of which is dated October 2023, confirming her attendance upon a psychologist, pursuant to the terms of the Final Orders;
(d)The father continued to insist her time with the child be supervised until January this year;
(e)She no longer drinks alcohol regularly;
(f)There have been various instances of the child refusing to live with the father, or running away from the father, and these compromise the child’s safety and must be investigated. It is also an indication, she says, that the Final Orders do not meet the child’s needs;
(g)The child, has made various disclosures to her, including:
(i)She does not feel physically safe in the care of the father;
(ii)The father became angry at her for using a laptop in her room;
(iii)The father has sworn in front of her, another driver and a child out the front of the school; and
(iv)The father has yelled at a girl in a store and that the father has pushed her over;
(h)The child has entered puberty and is not complying with basic hygiene issues. The mother is concerned that the father is not keeping on top of basic hygiene issues and providing relevant necessities for the child. The mother also says the child is not comfortable discussing these issues with her father;
(i)She does not consider it appropriate for the child to be sharing a bedroom with her father in the home of the paternal grandparents;
(j)The child has had behavioural issues in school and has been suspended from school;
(k)The child does not wish to live with her father anymore and that this requires investigation; and
(l)The father is recording calls between the child and the mother and that this constitutes family violence and is undermining of the mother’s relationship with the child.
The mother says all of the above constitutes a significant change in circumstances and also means that it is in the child’s best interest that proceedings be reopened.
CONSIDERATION
It is important to note that the Final Orders were made in this matter on 10 October 2022, under two years ago. Under those orders, the mother’s time was to progress, among other things, from supervised to unsupervised time. The progression to unsupervised time, along with other amendments, was to occur, at the earliest in October 2023. That is under one year ago. Moreover, there are aspects of the Final Orders where progression of the mother’s time has still not occurred. For example, the Final Orders contemplate increases to the mother’s time in each of the 2025, 2026 and 2027 school term holiday periods. None of those progressions has yet occurred.
The Final Orders were also made by consent. Hence, there are not any written reasons explaining why the Final Orders were made. That said, Final Orders were made following negotiation by the parties on the day the trial was scheduled to commence in October 2022. Those negotiations were conducted in circumstances where each of the parties was represented by counsel and the parties could be taken to have negotiated with the full knowledge of what was contained in the report of Dr B, the First and Second Family Reports, as well as the other trial material.
The mother ultimately consented to Final Orders which, among other things, provided for the father to have sole parental responsibility, for the child to live with the father and for the child’s time with her to be initially supervised before progressing to unsupervised. The mother consented to orders that ultimately would see her spend time with the child for one night per fortnight. Further, the mother consented to orders that her time would not progress unless she complied with a range of orders that required her to undertake ongoing counselling and treatment for her mental health. Indeed, specific orders were made requiring the mother to engage with mental health treatment: see orders 13 to 15 of the Final Orders.
The professional reports obtained in the course of trial preparation were before the parties at the time they negotiated and agreed to the terms of the Final Orders. It is relevant to note the following from the professional reports.
In his report, Dr B noted:
(a)That the mother had had a few depressive episodes in her life, however, following treatment, her symptoms appeared to have resolved;
(b)The mother described long-standing traits present most of her life of impulsivity, a marked reaction to loss, effective dysregulation, excessive use of substances and alcohol, and self-harm attempts. These are congruent with having a mental health condition;
(c)For the 18-month period up until December 2021, a level of drinking was both regular and to marked excess and would have satisfied the criteria for alcohol use disorder;
(d)The mother has a mental health condition that predispose her to periods of decompensation, often accompanied by substance or alcohol use, and major depressive episodes; and
(e)The mother was exposed to developmental trauma, witnessing violence, and parental neglect as a child, which has been a significant factor in the mental condition. Many of the behaviours that have been of concern had their roots in her own exposure to trauma and neglect. These traumatic experiences have not been properly addressed by the mother and will remain a constant background threat for future relapses unless treatment is sought.
The Second Family Report recommended that the father continue to have sole parental responsibility for the child and that the child spend every second weekend on a Saturday or Sunday between 9.00 am and 5.00 pm with the mother. There were recommendations to progress the time, including school holiday time. Further, at paragraph [78]-[79] of the Second Family Report, Ms C made references to the mother’s unresolved historical trauma, her predisposition to depression and her capacity to make self-protecting choices. There is some resemblance between the recommendations in the Second Family Report and the terms of the Final Order.
It can therefore be observed that the terms of the Final Order were agreed by the parties following the receipt by them of the expert reports. It is also trite to observe that the parties were aware of the child’s age, her gender and that there were a number of years left in which the child would be subject to the regime contained within the Final Orders.
In this context, it is then necessary to consider the matters that the mother says individually or together constitute a significant change in circumstances.
Has there been a significant change in circumstances?
The Mother says she has completed her mental health treatment. I accept that she has taken the steps required under the Final Orders to seek treatment for her mental health in order to progress her time with the child. The mother has not, however, put on any expert evidence before the Court as to the current state of her mental health, whether her health is stable, or whether she requires ongoing counselling. Dr B is a registered psychiatrist. The mother has not put on any evidence from a psychiatrist providing a comprehensive update and report into her mental health. The highest the evidence gets is a letter from her psychologist, the last of which is dated October 2023, which provides a brief one-page summary of the mother’s engagement in therapy and that there has been a reduction in her symptoms. None of this indicates a significant change in circumstances, given the absence of a comprehensive medical report to which I have referred.
The mother says she has now returned to Suburb D, whereas she was previously living some distance away in Town F. I accept that this move of the mother does place her in the position of being potentially more able to be involved with the child, including potentially during school term time. This fact, however, needs to be weighed against the following:
(a)The mother has a history of moving residences. She was living in Town G in 2018. She moved to City H, Queensland in late 2020, only to then return to Town G in late 2020. She then moved to Town F in early 2021, before, in early 2023, moving to Region J in order to recover following a serious family violence incident. By late 2023, she had returned to Suburb D. A number of these moves occurred when the earlier set of proceedings were still on foot, including the move to City H. I accept there may well be explanations for some of these moves. For example, her move to Region J following her injury in a family violence incident. I also accept that past behaviour is not an exact predictor of future behaviour. However, her past behaviour in moving residences is a relevant consideration when she comes to Court, asserting that a significant change of circumstance is her most recent move to Suburb D; and
(b)It may be that her location was a matter that had a bearing upon the composition of the Final Orders, but it was not the most significant factor. There were clearly other factors at play, including the risks she posed to the child from her own mental health or a concern that she could not adequately protect the child from Mr E. See order 29(d) of the Final Orders as an example. That those risks were a significant factor can be seen from the fact that the progression of the mother’s time depended upon her attending to her mental health by taking the steps set out in orders 13 to 15 of the Final Orders.
When these matters are considered, the change of location is not, in all of the circumstances, a significant change of circumstances.
The mother asserts a change of circumstances that she has ended her relationship with Mr E. I note that the mother told the family report writer that she had terminated her relationship with Mr E in mid- 2021. There must at least be a question over the truthfulness of that assertion, given Mr E’s subsequent conduct toward her. That said, the mother now says that her relationship has ended and there is every reason to believe that it has, given Mr E’s serious assault of her and the impending court case against him, in which she has indicated she will be a witness for the prosecution. The bigger question, though, arising from this, is whether the mother has the capacity to make future decisions that minimise risk to the child. Clearly, there was a question about the mother’s capacity to manage these risks when the Final Orders were made, given that there was a restraint against the child coming into contact with Mr E. This, in circumstances where the mother was saying at that time that the relationship with Mr E was at an end. The question of the mother’s capacity to manage risks and make safe and sensible decisions now may well have been answered had she filed an expert report from a qualified medical professional. She has not done so, however, and the question of whether she is capable of making better decisions and decisions capable of protecting the child from harm remains in serious question. Indeed, the evidence before the Court suggests that she is not capable of making decisions that minimise risk to the child when one considers the phone call she had with the child on 15 February 2024, in which she coached the child on how to leave the father, including by not tapping on or off a ticket and instructing her to go to shops to ask for help.
The mother next says she no longer drinks alcohol regularly. Her only evidence for this is her assertion. Again, this is a matter that could have been the subject of an expert report or indeed a hair follicle test if need be. However, the mother has not presented such evidence.
The mother relies on the child’s entry into puberty as a change of circumstance and makes a variety of allegations that the father is not adequately supporting her, ensuring her hygiene, and that the child would not wish to speak about these issues. These matters need to be considered and weighed against the following:
(a)The mother has previously made allegations about the child’s hygiene to Dr B and in her affidavits filed prior to the Final Orders being made. The substance of these allegations, if not the particulars, have been seen before;
(b)It would have been obvious to the parties at the time they made the Final Orders that the child was on the cusp of puberty and given the orders they were making, it would have been the father’s responsibility to attend to it;
(c)The father’s evidence is that he has taken various steps to provide the necessary support to the child; and
(d)Finally, none of this is a significant change of circumstance.
The mother next says that the child has told her that she does not wish to live with her father anymore, and that the child has run away from the father on various occasions. These matters are said not only to constitute a change of circumstance, but also provide other reasons as to why it is in the best interests of the child that the proceedings be reopened. In assessing these submissions, it is relevant to consider the following:
(a)The child told the family report writer, prior to the Final Orders being made, that she wished to live with her mother, and indeed, that she was not scared of her mother. It may be accepted that these wishes were known to the parties at the time they entered the Final Orders. It would have also been obvious to the parties that the child would continue to grow. This could hardly constitute a significant change of circumstance;
(b)The child’s actions in either running away from the father’s home or not wanting to return to the father, as the mother puts it, only started occurring, it seems, in January this year, shortly after the mother’s time with the child had progressed under the Final Orders and only after the mother apparently withheld the child. Some of the incidents also occurred following the mother coaching the child about how to run away; and
(c)While there have been incidents of the child running away, they have occurred in the circumstances above, and have only occurred on two or three occasions. It is not the case, as seemed to be suggested by the mother, that the child is constantly running away. Moreover, it would appear that the last time the child did run away was in March this year. It would appear that the Final Orders have been complied with since. The mother seeks to emphasise the risks the child faces because she runs away from the father’s care. She would, however, seem to bear some direct responsibility for these risks. She withheld the child in January, and she has coached the child on how to run away.
The mother next makes a series of allegations that suggests the father is a risk to the child. In respect of these incidents, the father:
(a)Says in relation to being angry at the child when she was on a laptop, that he found the child with the laptop open at 2.00 am. He asked that she shut it down repeatedly, and eventually, she did. When he checked again at 3.00 am, she was still on the laptop, and he took it from her. He says he does not consider that he damaged the laptop at that time, though it is currently being repaired because of a crack in the screen that was present before the event. All of this needs to be considered in the context of the child’s conditions and the routine the father has put in place to assist her with those conditions, including limiting her screen time. In context, then, this is hardly an issue that gives rise to risk;
(b)The father provides an explanation of what occurred at a store and that he believed that he and the child had been included in a photograph taken by another and that he asked for that photograph to be removed; and
(c)He denies the allegation effectively made of road rage at or near the school.
In relation to these matters of risk, I note that the mother has not provided any corroborating evidence of her accounts that the child is at risk in the father’s care. I note that the report from the Department of Families, Fairness and Housing (‘DFFH’) refers to the father’s alleged anger issues, notes he was referred for parenting support, that Child Protection’s assessment was ultimately that the child was not at risk of harm in either parent’s care. Further, DFHH did not intervene to alter the child’s living arrangements, leaving that matter in the hands of the Court. All of this suggests that the child is not at risk in the care of the father, despite the various claims made by the mother.
The mother next points to the various issues that the child is experiencing at school. She says this was not occurring before but is occurring now. It is plain from the Statement of Agreed Facts provided by the parties that the child is having a difficult time at school. This matter needs to be assessed in context, and the context is as follows:
(a)It does not appear to be controversial that the child has additional needs. Those needs are extensive, and her treatment regime is extensive. I refer, in particular, to paragraphs [20]-[28] of the father’s affidavit. The difficulties that the child is experiencing at school may well have arisen from this background;
(b)It is not unusual for children, even those without additional needs, to go through difficult patches at school; and
(c)The mother conceded in cross-examination before the SJR that one reason why these issues may have arisen is because the school is holding the child, who is now older, more accountable for her actions.
It is inevitable that there have been changes that have occurred since the Final Orders were made. Many of these changes, however, occurred because of the effluxion of time and would easily have been contemplated by the parties at the time they made the Final Orders. Those matters include the child reaching puberty, the child’s views and the child’s age. Other changes such as the mother leaving Mr E or the mother moving to Suburb D are changes, but, in the context of this case, are not significant changes. The critical issue, in my view, is the state of the mother’s mental health and her capacity to make decisions that are safe for the child and in the child’s best interests. On this issue, the mother has adduced no expert medical evidence, despite an apparent history of mental health problems, to suggest that her mental health and decision-making capacities have improved. As I have noted, there must be serious doubt as to whether some of the mother’s decision-making capacities have improved, given some of the apparent conduct in this matter, including not returning the child in January and coaching the child on how to run away.
When all of this is considered, none of the matters relied on by the mother, either individually or collectively, constitute a significant change of circumstance since the Final Orders were made.
Is it in the best interests of the child to reopen proceedings?
It is then necessary to consider whether in all the circumstances, it is in the best interests of the child to reopen litigation. On this issue, the following matters are relevant.
The Final Orders were made in the circumstances where the parties were aware of the risks to the child from the mother and/or the mother’s decision-making. The mother has not produced evidence to show any improvement either to her mental health or decision-making from an expert. There is still a question, in my view, about the mother’s judgment and conduct, given her recent actions.
There is not any material available now that was not available to the Court at the time the Final Orders were made. In particular, there is no new expert medical opinion relating to the mother’s mental health. Of course, a Court hearing the matter will take evidence as to the current state of affairs and recent events, including the child’s age and views. As noted above, there has not been a significant change of circumstances.
Then there are the various matters set out in section 60CC Of the Act. In respect of these:
(a)The evidence before the Court thus far does not show that the child has been exposed to any unacceptable risk of family violence, abuse, neglect or harm. Indeed, on the mother’s own case, if she was successful, according to her case outline filed in advance of this matter, she would seek orders that the child live with each parent on a week about basis. She would not seek those orders if she considered that the child was at a risk of unacceptable harm in the care of the father or if the father was exposing the child to abuse or neglect. Moreover, given the mother has not filed any expert evidence as to her psychological state, there is nothing before the Court that would suggest that the child spending more time with the mother would promote the safety of the child;
(b)As to the child’s views, I note they have remained consistent since before the Final Orders were made in that she wishes to spend more time with her mother or live with her mother. This was a factor that existed before the Final Orders were made, and the parties were aware of it when they made the Final Orders;
(c)This is a child with high needs. The evidence of the father clearly shows that he is aware of those needs and is taking active steps to address those needs. There is not any indication that the mother has any detailed awareness of those needs or the treatment regimes which the father has put in place for the child, or that she could manage those regimes. Given her limited time with the child, it is likely she has limited knowledge of the particulars of those matters. I have also referred earlier in these reasons to the fact that there is no evidence before me that the mother’s mental health has improved, such as that her decision-making capacity has improved. On the basis of the evidence filed by the father, it would appear to be the case that the child’s development, psychological and emotional needs are being catered for by the father, although I accept that material discloses that there remain issues that the child is confronting; and
(d)The present orders ensure that the child has a relationship with both of her parents. In an ideal world, the child might spend more time with her mother. The mother has not put on, as I have said, evidence from an expert that shows she has addressed the issues which underpinned the orders that were made previously.
There is one final matter that requires mention. It is an agreed fact that the father has been recording calls between the mother and the child. That action clearly has the potential to undermine the relationship between mother and child. During the course of the hearing, the parties agreed to the Court making an order that neither the mother or father audio or video record conversations that occur. The parties have since submitted a consent order in those terms and I will make that order.
Returning, then, to the substantive matter before the Court, when these matters are considered, it is unlikely that a Court asked to reconsider this matter would choose to affect the operation of the Final Orders in any significant way.
Finally, and as I noted earlier, the Final Orders were only recently made. The progression of time contemplated under them has not yet exhausted. The application initiating these proceedings was filed in June 2020 and the matter finally resolved in October 2022. The child, and her parents, were in this Court for two years. It is relevant to consider that if proceedings are reopened, the child and her parents face another prolonged period in this Court, potentially of one to two years before the matter proceeds to a trial. In that period, the child would likely be required to undergo further assessments for a child impact report as sought by the mother and also, eventually, a family report. It is also conceivable that, given the child’s needs, she could be subjected to other types of assessment for the purposes of litigation. For example, psychological reports and the like. There might also be the prospect, given the child’s needs, that she could be required to engage with an independent children’s lawyer. I note one was appointed on the last occasion. All of this would add a considerable burden to the child, who already, because of her needs, has had to attend to multiple engagements with professionals.
CONCLUSION
When all of the circumstances are considered, I am of the view it is not in the best interests of the child for these proceedings to be reopened.
The other aspect of the review brought by the mother was a review of the costs order made by the SJR. I was not addressed at all on this issue.
In all the circumstances, the only appropriate order is that the mother’s Review Application be dismissed.
I certify that the preceding forty-four (44) numbered paragraph are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 9 August 2024
ANNEXURE A
ISSUES IN DISPUTE & STATEMENT OF AGREED FACTS
Submitted by the parties jointly pursuant to paragraph 5 of the Orders of Judge Blake made 15 June 2024 for the hearing of the Application for Review listed for 25 July 2024.
ISSUES IN DISPUTE
The following issues require determination by the Court at the hearing of the Application for Review:
1.As alleged by the mother:
a.Whether the mother’s relocation from to Suburb D from Town F constitutes a “significant change in circumstances” pursuant to section 65DAAA(1)(a);
b.Whether the mother ceasing all contact with Mr E constitutes a “significant change in circumstances” pursuant to section 65DAAA(1)(a);
c.Whether X’s increased age and (as alleged by the mother) her ability to express her individual need and wishes in relation to her living arrangements constitutes a “significant change in circumstances” pursuant to section 65DAAA(1)(a);
d.Whether disclosure of family violence and violence towards third parties made by X (as alleged by the mother) demonstrates a significant risk that justifies revisiting the final parenting orders dated 10 October 2022 pursuant to section 65DAAA(1)(b);
e.Whether the lack of support provided to X in relation to issues relating to puberty (as alleged by the mother) amounts to a significant risk that justifies revisiting the final parenting orders dated 10 October 2022 pursuant to section 65DAAA(1)(b);
f.Whether the father’s actions in recording telephone calls between the mother and X amounts to family violence and orders need to be made to protect X and the mother from this behaviour in accordance with s60CC(2)(a)(i) and (ii); and
g.Whether the father’s actions in recording the telephone calls between the mother and X is denying X from having a relationship with her mother;
2.Taking into account the determination of issues 1(a) – (g) above individually or in combination:
a.Whether (as argued by the mother) pursuant to section 65DAAA(1)(a) there has been a “significant change of circumstances” since the final parenting orders dated 10 October 2022 were made; and
b.Whether (as argued by the mother) pursuant to section 65DAAA(1)(b) the Court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting orders were made), it is in the best interests of X for the final parenting orders dated 10 October 2022 to be reconsidered.
3.Whether (as sought by the mother) the Orders of a Senior Judicial Registrar made on 26 June 2024 should be set aside, including:
a.The substantive order to dismiss the mother’s application pursuant to section 65DAAA; and
b.The order that the mother pay the father’s legal costs fixed in the sum of $7,822.
4.The costs of the Application for Review.
STATEMENT OF AGREED FACTS
Date Event 2010 Child X born. 10/2018 Mother and father separate. X in 50/50 care arrangement for
period whilst the father lived in Suburb K and the mother lived in Town G.
6/2020 Father issues previous proceedings following Mother informing him that she and Mr E (whom she had re-partnered with) had
purchased a property in City H, Queensland and intended to move there with X
Mid-2020 Mother moved to City H, Queensland with Mr E 25/8/2020 Interim Orders made by Burchardt J for, inter alia:
• That the father have sole parental responsibility for X;
• That the child live with the father;
• That the mother spend (unsupervised) time with the child should she return to Melbourne
Late 2020 Family Violence incidents occur between Mother and Mr E in Queensland. Late 2020 Victoria Police apply for FVIO on the father’s behalf naming the mother as the respondent and the father and X as protected persons Late 2020 Further family violence incident occurred between Mother and Mr E. Late 2020 Mother returned to Town G, Victoria 20/01/2021 Father files an urgent application in a case seeking that the mother spend supervised time with the child. Early 2021 Queensland Police make application for domestic violence order naming Mr E as respondent and the mother as the protected
person.
21/1/2021 Interim Orders of the Court made by Burchardt J for, inter alia, the Mother to spend supervised time with X at a contact centre, for the Mother to undergo a psychiatric assessment, and an injunction
restraining the mother from bringing X into contact with Mr E.
Early 2021 Settlement / Sale of the mother’s house in Town G. Early 2021 The Mother and Mr E settle their joint purchase of a property in Town F, Victoria, and they relocate there (having sold the property in City H) 1/7/2021 First Family Report by Ms C 4/8/2021 Interim Orders made by Burchardt J for, inter alia, the Mother to spend time with X supervised by one of 4 family members. The mother had not spent time with X since January 2021. Late 2021 Mother has “breakdown” in which, whilst intoxicated, she threatened Mr E and threatened to burn down their home and harm herself. The mother was detained by Police pursuant to the Mental Health Act.
The mother subsequently resided in a hotel for approximately one month.
Late 2021 Mother returns to Town F property where Mr E lived and lives in a motorhome on the property. The Mother claims that she and Mr E were separated under one roof at this time. Early 2022 Final FVIO made naming mother as respondent and father and X as protected persons. Full no contact order with Family Law
exceptions.
Early to mid-2022 Two further family violence incidents occur between Mr E and the mother, with Mr E consuming alcohol and threatening to harm the mother. Early 2022 Mr E has a hearing in the Magistrates’ Court for charges relating to incidents that occurred in late 2021.
The father attended the Court hearing. The mother is subsequently charged for breaching the Final FVIO protecting the Father following an exchange at this hearing.
Mid-2022 Final Personal Safety Intervention Order made against Mr E protecting the father and X. Order made for a period of [2 years]. 31/8/2022 Family report no 2 of Ms C published
In the interview for the report, the mother advised the report writer that her and Mr E had separated
27/09/2022 The mother files a trial affidavit in which she deposes (at paragraph 7) that her and Mr E were separated and had been living separately for about 3 months 4/10/2022 Parties attend FDRS (no 2) before Mr L and no agreement is reached. 10/10/2022 First day of Final Hearing before Howe J. Final Orders made by consent for, inter alia:
1. Sole parental responsibility to the father;
2. That X live with the father;
3. X spend time with the mother on a graduating basis from daytime with substantial attendance, then progressing to overnight with substantial attendance after 6 months and overnight unsupervised in 12 months
4. The mother’s progression of time was conditional upon her ongoing attendance upon her psychologist and for her psychologist to provide confirmation of her attendance at 6 months and 12 months.
At this time, the mother was living in Town F, Victoria, and deposed that she and Mr E were separated in her affidavit dated 27 September 2022.
The mother, father and Independent Children's Lawyer were all represented by Counsel at the hearing.
2022-2023 X spends time with the Mother largely in accordance with the
Final Orders
Early 2023 Mother victim of serious family violence incident perpetrated by Mr E, causing serious injuries to the mother
The mother is admitted to hospital for treatment of serious injuries.Upon her release from hospital, mother moves to Region J with her sister to recover. Early 2023 X is diagnosed with Autism & Specific Learning Disorder in addition to her existing diagnosis of Attention Deficit Hyperactive Disorder 15/10/2023 Letter confirming mother has completed Psychological treatment provided to Father. Time due to begin on an unsupervised basis. 27/10/23 Father sends email to mother requiring supervisor for spend time. 28/10/23 Disagreement about presence of supervisor at changeover. Late 2023 Mother relocates to Suburb D, 50km from X’s school 1/2024 X enters the mother’s care pursuant to final orders 1/2024 Mother informs father that X is ‘unwell’ and requests a further night with X. Mother then withholds X without the father’s consent. 1/2024 Mother communicates with father via SMS and telephone that
X does not wish to return to the Father’s care.
1/2024 A report is made to Child Protection (said by the father to be by one of X’s healthcare providers) that X overheld and related concerns 1/2024 Father reports overholding to Victoria Police as breach of current FVIO. Victoria Police conduct welfare check 1/2024 Discussions continue regarding X’s return, mother does not
return X
17/1/2024 Father issues recovery order application 23/1/2024 Mother files responding documents to recovery order 2024 Mother appeared to give evidence as prosecution witness at the Committal of Mr E for incident that occurred in early 2023. 25/1/2024 Recovery order made by an SJR, changeover occurs at around 4.10pm.
October 2022 orders resume.
27/1/2024 About 48 hours after returning to the Father’s care, X runs away from the father’s care.
With the assistance of a parent of another student at X’s school, X was located the same evening in a friend’s backyard. Father and paternal grandmother collected her from friend’s house.
Early 2024 Interim intervention order made extending Final FVIO where mother is the respondent and the father and child and protected persons – with full no contact conditions plus Family Law exceptions Early 2024 X receives suspension from school due to her behaviour Early 2024 X receives suspension from school and lost her camp and excursion privileges following an incident where she was dysregulated at school Early 2024 Mother enters plea of guilty to charges of persistent breach of FVIO and single breaches, receives adjourned undertaking to be of good behaviour for 12 months 17-18/2/2024 X spent time with the mother pursuant to orders and returned
to the father’s care with a mobile phone that had been supplied to her by the maternal grandmother, of which the mother was aware. The mother admitted this under cross-examination on 6 June 2024.
18/2/2024 X left the father’s home at about 7:15pm and said she was going for a walk to the Mother’s home. When she had not returned by 8:30pm the Father went to look for her and notified Police. The father then returned home at 9:30pm and found X there. Early 2024 X suspended from school following incident.
Incident involved X contacting the mother with mobile phone that mother had provided and meeting the mother outside without school permission. The mother admitted this under cross-examination on 6 June 2024.
Early 2024 X runs away from the father’s care. Mother collects X from Suburb M and takes her to Suburb M police station. The father and paternal grandmother collected X from the Police
station at approximately 1:30am, facilitated by Police. The Mother was charged for breach of the FVIO relating this incident.
Early 2024 X suspended from school Early 2024 Mother pleads guilty at the Magistrates’ Court for offences. Sentenced to Community Corrections. Mid-2024 X travels to Country N and Country O with the father and the paternal grandparents, the mother having signed a written authenticated consent to this travel pursuant to section 65Y of the Family Law Act 1975. 6/6/24 Discrete Issue Hearing before a Senior Judicial Registrar
The Father, under cross-examination, admits to recording ‘most’ telephone calls between Mother and X.
Mid-2024 Mother’s application for Family Violence Intervention Order against the father is heard ex parte at Magistrates’ Court. The
Court declines to make an interim family violence intervention order. The Mother’s application was listed for Mention in mid-2024.
26/06/2024 Judgment delivered by a Senior Judicial Registrar, dismissing the
mother’s application for reconsideration of final parenting orders
Mid-2024 X sent home from school camp early. Mid-2024 The first inter partes Mention in Magistrates Court of mother’s application for an Intervention Order against the father. Matter adjourned until mid-2024 and listed with father’s application for extension. No interim Intervention Order was made by the Court.
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