Galvis & Galvis (No 2)
[2024] FedCFamC2F 557
•7 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Galvis & Galvis (No 2) [2024] FedCFamC2F 557
File number(s): PAC 6181 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 7 May 2024 Catchwords: FAMILY LAW – PARENTING – Rice & Asplund – threshold hearing relating to the mother commencing fresh parenting proceedings. Cases cited: Barr & Barr (No 3) [2023] FedCFamC1F 873
Mahoney v Dieter(No 3) [2022] FedCFamC1F 151
Rice & Asplund [1978] FamCAFC 128
Division: Division 2 Family Law Number of paragraphs: 39 Date of hearing: 19 April 2024 Place: Parramatta Counsel for the Applicant: Mr Ahmad Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Mr Baston Solicitor for the Respondent: Hills Family Law Centre ORDERS
PAC 6181 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GALVIS
Applicant
AND: MR GALVIS
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 MAY 2024
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The mother is granted leave to commence fresh parenting proceedings seeking interim orders as set out in her Minute of Orders sent to the Court on 19 April 2024.
2.Within 7 days, the mother is to file an Amended Application in a Proceeding embodying the above Minute of Orders.
3.Within a further 14 days, the father is to file any Amended Response to the above Application in a Proceeding.
4.The matter is listed for directions hearing on 3 June 2024 at 9.30 am.
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 NEWBRUN:
INTRODUCTION AND BACKGROUND
This threshold hearing relates to final parenting orders made by the Court on 27 March 2023, by consent of the parties, in relation to the children W (aged 13), X (aged 11), Y (aged 9), and Z (aged 9) (“the children”).
The mother, ultimately relying on a proposed Minute of Orders sent to the Court on 19 April 2024 (she had initially filed an Application in a Proceeding on 31 October 2023), is seeking to, inter alia, suspend certain of those final parenting orders relating to the children spending time with the father, on the basis of her contention that there has been a significant change in circumstances since the orders were made having regard to the so-called rule in Rice & Asplund [1978] FamCAFC 128; (1979) FLC 90–725 (“Rice & Asplund”). This is opposed by the father who contends that there has not been a significant change in circumstances since the orders were made.
The parties commenced cohabitation in 2008. They separated in June 2021.
All children have ADHD and have been prescribed medication. Additionally, the child W suffers anxiety, X has autism and developmental delays, and Y has autism.
Since separation the children have lived with the mother in Region B, Queensland. The father resides at Suburb C in Sydney.
In respect to the children’s time with the father post separation, Covid-19 impacted their time with the father. They spent limited time with the father in 2022 and the father commenced proceedings in November 2022.
The final parenting orders of 27 March 2023 included consent orders that the parties have equal shared parental responsibility, the children live with the mother, the child W spend time with the father in accordance with his wishes, and the other children spend time with the father supervised but graduating to unsupervised time with the father- initially in Region B and then specific holiday time in Sydney. Changeovers for that latter holiday time in Sydney was to occur by the father collecting the children from Brisbane or Region B airport.
Since mid-2023 the child X has not spoken to the father nor spent time with him. The mother decided to no longer facilitate telephone calls between the father and the children from about early 2024. In about late 2023 the mother’s solicitors informed the father’s solicitor that the mother would no longer facilitate the children spending unsupervised time with the father in Sydney.
MATERIAL RELIED UPON
The mother relied upon:
(a)Her Application in a Proceeding filed 31 October 2023;
(b)Her Minute of Orders sent to the Court on 19 April 2024;
(c)Her affidavit filed 15 March 2024; and
(d)Her Case Outline filed 5 April 2024, in particular at paragraphs 4.1 to 4.31.
The father relied upon:
(a)His Response to an Application in a Proceeding filed 17 April 2024.
The Child Impact Report dated 1 February 2023, author Dr D, Family Consultant/social worker, became Exhibit A at the threshold hearing.
EVIDENCE
In determining this case, the Court has had regard to the written material referred to above, and the parties’ submissions.
As the parties were not cross-examined on this Rice & Asplund issue, where there is a factual dispute between the mother and the father, the Court is required to assume the mother’s evidence is correct unless it is inherently unbelievable or contradictory.
RELEVANT LEGAL PRINCIPLES
In relation to the so-called rule in Rice & Asplund, the Court adopts the following excerpts from the mother’s Case Outline:
4.8The purpose and operation of the principles in Rice & Asplund are well known. As was recently restated by Bennett J in Mahoney v Dieter (No 3) [2022] FEDCFAMC1F 151 at [6]:
The rule in Rice & Asplund is aimed at preventing a party from re-litigating simply in the hope of obtaining a more favourable result from a re-exercise of a discretion. The purpose of it is to protect children […] from the disruption and uncertainty of serial litigation. In cases subsequent to Rice & Asplund this Court has confirmed that the rule operates to protect the child based on the best interests not being served by repeated applications to vary orders.
This view that Rice & Asplund operates to protect the child from “the disruption and uncertainty” of repeated litigation has also been stated in Freeman & Freeman [1986] FamCA 23, where Strauss J had additional mind to the effects on the parties themselves, the financial effects of re-litigation and the “proper and orderly administration of the law” in general:
… Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and will likely to affect the children adversely. It impairs the ability of the custodian […] to deal with the present and plan the future of the family. It is financially burdensome. For these and like reasons the Court may, in an appropriate case, scrutinise with some care an application such as the one in question here where a party applies for what is, in effect, the reversal of an order made a short time previously. The Court may enquire what the facts and circumstances are before it embarks on what might be a lengthy and costly hearing.
The welfare of the children is […] the paramount consideration. But once the Court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the best interests of the children that the order made by the Court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential pre-requisite to their wellbeing. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are a part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubts on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
…
4.10Furthermore, in Barr v Barr (No 3) [2023] FEDCFAMC1F at [26]-[28] (Barr v Barr), Hartnett J recently affirmed the following:
[26]In Walden & Cooper [2020] FamCA 104 , Austin J set out the current guiding legal principles, on which I proceed, as follows:
9.The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision ( Rice & Asplund (1979) FLC 90–725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93–363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“ Marsden v Winch ”); Langmeil & Grange [2013] FamCAFC 31 at [43]–[48]; Poisat & Poisat (2014) FLC 93–597 (“Poisat & Poisat”)).
10.The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]–[41]; Marsden v Winch at [46]–[47]; Miller & Harrington (2008) FLC 93–383 at [80]–[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed ( Marsden v Winch at [56]).
11.In order to determine the existence and materiality of the asserted change in circumstances, consideration should be given to (Marsden v Winch at [50]):
(a) the past circumstances, including the reasons for the original decision and the evidence upon which it was based;
(b)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; and
(c)if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause.
[27]In Baisman & Cartmill [2022] FedCFamC1A 36 at [11], the Court stated that any change or any non-disclosed evidence from a previous proceeding must be “significant” to justify revisiting parenting arrangements.
[28]In DL & W (2012) FLC 93–496 at [77] and Carriel & Lendrum (2015) FLC 93–640 at [56], the Court stated that in such a consideration as set out above, the Court is not required to adopt the process as set out in Goode & Goode (2006) FLC 93–286 , nor is the Court required to discretely address and consider many of the s 60CC of the Act factors.
(As per original)
DISCUSSION
The Family Consultant interviewed the family in early 2023.
As to the children’s views expressed to the Family Consultant, the child Z stated she was very keen to see the father and overall expressed no issues of concern in spending time with him. As to the child Y, she stated that she wanted to see the father. As to the child X he stated that he likes to see the father at E Family Service where he feels very happy. He stated that he didn’t really want to go to the father’s place because it has other people there.
The mother states in paragraph 153 of her affidavit that since the Orders of 27 March 2023 there have been several incidents which have occurred that have made adhering to these orders challenging and simply not workable. She proceeds to give examples of these incidents.
The mother then variously describes past events relating to the children’s time with the father including the following events after the orders of 27 March 2023:
(a)The child X and the parties’ twin daughters, Y and Z, were due to spend time with the father in Sydney in the 2023 school holidays. The child X did not join the daughters on the trip. In late 2023 at the airport in Queensland the maternal grandmother, who was present there with the daughters, was verbally abused (including swearing) by the father who apparently was objecting to the presence of the maternal grandfather. The daughters were crying. The father had yelled at the daughters to hurry up;
(b)Since mid-2023 X has refused to take any phone calls from the father, and he has not seen the father since this time;
(c)In early 2024 the mother overheard a telephone call that the father had with Z; the father had said that the mother would go to gaol, the mother would have to pay the father’s court fees, the mother was a liar, the mother would not let him see Z, and this child came to the mother crying and distressed.
The mother states that telephone communication between the father and the three youngest children has been consistent since separation up to early 2024. The mother avers that in early 2024 she caused her solicitors to send a letter to the father’s solicitor stating that she would no longer facilitate telephone calls between the father and the children.
Under the heading, “Deterioration of [the father’s] relationship with [X]”, the mother states, at paragraphs 173 to 180 of her affidavit, inter alia, as follows:
173.[Mr Galvis] spent unsupervised overnight time with [X], [Y] and [Z] [in mid]-2023. [In mid]-2023, I am aware because the children told me when they got home that [Mr Galvis] took [X], [Y] and [Z] to [an amusement park]. [X] said to me when he was returned into my care "I broke [Y]’s [toy]. Dad started screaming at me and I ran away, it went on for 10 minutes and Dad called me "a stupid idiot". I was so scared he was going to hit me with the [toy]." From [mid]-2023 to date, [X] has suffered from nightmares on an almost nightly basis and also daily meltdowns lasting between 30 to 45 minutes.
174.In or around [mid]-2023, [X]'s Counsellor, [Ms F] said to me "[X] has disclosed to me that he is scared about seeing his Father in Sydney". I am aware that [X] told [Ms F] about two incidents in [late] 2020 at the breakfast table where [Mr Galvis] twisted [X]'s arm behind his back, because [Ms F] said to me "I believe that [X]'s previous memories of abuse are resurfacing now that he is in a safe environment at [Town G]."
175.[In late] 2023, [X], [Y] and [Z] were to spend time with [Mr Galvis]. In between around [mid]-2023 to [late] 2023, I had multiple conversations with [X] in the times since [X] last spent time with [Mr Galvis] in or around [mid]-2023 and in the lead up to the [late] 2023 school holiday period and [X] has said: "I'm scared of what dad might do to me". At these times, [X] has said words to the effect of:
(a)‘I am scared of what Dad is going to do to me next time he sees me don't make me go':
(b)'I really don't want Daddy to swear at me, I hate it when he calls me a stupid idiot, and cunt'; and
(c)'I am scared Dad is going to hit me or twist my arm behind my back again. Mum why are you making me go'.
176.At the start of [late] 2023, in preparation of sending [X] to Sydney, I said to [X] "you are going to visit daddy in a few weeks with [Y] and [Z] and you will get to go on an aeroplane to Sydney and visit [grandma] like last holidays." [X] said "I don't want to go, I'm scared of daddy because of the [toy]. He is very angry at me. I'm very scared of him." I said “but you have to go." [X] said, “I don't want to I'm scared please don’t make me go mummy."
177.[In late] 2023, I caused my solicitor to send a letter to [Mr Galvis] enclosing the letter from [Ms F] dated [late] 2023 and outlining that [X] expressed strong wishes and resistance to the prospect of spending time with [Mr Galvis] in [late] 2023. The letter advised [Mr Galvis] that [X] would not be forced to attend the airport to spend time with [Mr Galvis] during the school holidays.
178.[In late] 2023, I said to [Z] and [Y]: "[X] will not be going with you to Sydney'. [Y] said: "Daddy yells at me all the time and I don't want to go visit him either he is not nice". [Y] and [Z] have both said to me after the school holiday visits, words to the effect of 'he takes it out on [Y]' and that [Mr Galvis] yells at them "all the time".
179.[In late] 2023 when it came time to take [X], [Z] and [Y] to the airport to meet his father he became very distressed. He started screaming and yelling at the top of his voice "I don't want to go I am scared of daddy." I said to [X] "you have to go visit daddy with [Z] and [Y], I'm sure you will have fun." Then, [X] even more and he started pulling out his hair and hitting himself in the head which is what he does when he is really distressed and is a coping mechanism for him. He then proceeded to cry and yell "I don't want to go I hate daddy he is stupid and he twists my arm when I don't listen". [X] was getting louder and louder and becoming more distressed yelling and screaming “I don't want to go... I want to not go like [W]... Daddy was mean to him too". It was then getting late and [Z] and [Y] would miss the plane if we didn't leave. I had to pick up a distressed [X] who was kicking and screaming and still pulling his hair and hitting himself in the head and took him down to the car. When we got to the car [X] held the car door frame and refused to get in. [X] was now to the point of making himself sick and so distressed I was worried he would hurt himself. I did everything I could in my power to bring [X] to the airport, but in this state of distress and for the wellbeing of [X] I could not make him go. I took [X] back in the house and I took the girls to the airport to meet their father.
180.Because of the above events, despite my best efforts to facilitate a relationship between [X] and [Mr Galvis], which I provide examples of below at paragraphs [185], [187], [189], [190] and [194] [X] has not seen or spoken to [Mr Galvis] over the phone since [mid]-2023.
The mother refers to her solicitor’s letter to the father’s solicitors of late 2023, in which the mother’s solicitors, inter alia, refer to the mother’s concerns as to the father’s mental and physical well-being. The letter refers to the mother’s instructions, inter alia, that at a supervised visit between the father and the children in early 2023 he said to them that he has an illness and not long to live, and that during a FaceTime call with the children the father said to Y that he would put the mother in gaol if she did not send X to visit the father.
The mother states that she has had significant difficulties communicating with the father since the orders of 27 March 2023, giving examples.
The mother, through her solicitors, on 22 November 2023 informed the father that the children would not be spending unsupervised time with him from November 2023 onwards, “because of the earlier unsupervised visits”. A later confirmatory letter from the mother’s solicitors, on 30 November 2023, also referred to the father’s long history of poor communications about parenting between the parties.
The mother alleges that in late 2023 the child X told Ms F, counsellor, that he didn’t want to go overseas with the father and he wanted the father to be stopped from taking him away and hurting him again and saying mean things to him.
Under the heading, “[Mr Galvis]’s Mental Health”, the mother states, inter alia, as follows:
·In relation to the father’s supervised time with the children on three occasions in mid-2023, three of the children told the mother separately that the father has an illness and that he doesn’t have long to live;
·In late 2023 the father spoke to X’s counsellor and discussed the letter of Ms F of late 2023. Ms F told the mother that the father had called her and said that he only had 6 months to live. In late 2023 Ms F wrote a letter to the mother stating, inter alia, her concern for the father’s mental health.
·At the father’s pain specialist appointment with Dr H on about mid-2023 the notes state that the father was insistent and demanded a prescription for an opioid medication.
·In mid-2023 the father’s solicitor wrote to the mother’s solicitors stating that they no longer held substantive instructions in relation to parenting matters (from the father). The father elected to represent himself in relation to parenting issues. The mother states that this had made communicating with the father since late 2023 practically impossible. She gives examples of the father’s erratic communications with her since late 2023 in paragraph 234 of her affidavit. The mother states that the messages from the father had made her feel distressed and anxious.
The mother, under the heading “Current Circumstances”, states that she has seen that the father’s behaviour, as detailed in her affidavit, has affected the children. She refers to the child W who continues to refuse to speak with the father or communicate with him despite about three years of therapy sessions intended to support this child in reconnecting with the father. She refers to the child X not having spoken to or seen the father since mid-2023, and this child continues to have nightmares almost daily. She refers to X having refused to speak with the father on the phone from mid-2023 to early 2024. The mother states that despite her encouragement to this child to speak with the father, X has told her that he will not speak with the father as the father will yell at him, is “too mean”, and he is scared of the father. The mother states that early 2024 was the last occasion that Z and Y spoke with the father on the phone. She states that in early 2024, the child Z had told Ms F that she likes it better when the father is watched as he behaves himself.
The mother states that for the reasons outlined in her affidavit, if the parenting Orders of 27 March 2023 remain in place, she has no confidence at all that she will be able to facilitate those arrangements with the children to spend time with the father, without some changes and interventions to address the unworkable conflict and complete absence of functional communication with the father. The mother states her belief that some protective measures for herself and the children need to be put in place so that herself and the children are not subject to verbal and emotional abuse when interacting with the father. She also states that the father may be in need of support with communication, parenting and anger management issues.
In the view of the Court, since the Orders of 27 March 2023, again assuming the mother’s affidavit evidence to be correct, there has probably been a significant change in circumstances since those orders by reason of, inter alia:
(a)The child X’s views in relation to spending time with the father have changed and he has become oppositional to spending time with the father. This child has not seen the father since mid-2023 and has refused to take any phone calls from the father since this time. When required to transition into the father’s care in late 2023 he exhibited disturbing self-harming behaviour. He has expressed fear of the father. His relationship with the father overall has deteriorated since the Court’s Orders of 27 March 2023;
(b)The father’s behaviour in front of the children since the Orders of 27 March 2023 is of significant concern; for example, in late 2023 at the airport in Queensland he swore at the maternal grandmother in front of the children and yelled at the children. Another example is the telephone call the father had with the child Z in early 2024 when he had stated to that child, inter alia, that the mother would go to gaol, and the mother was a liar, resulting in the child coming to the mother crying and distressed; the mother has ceased telephone communication between the three youngest children the father since about early 2024. On the mother’s evidence, there is a significant suggestion that the children have been adversely emotionally affected by the father’s behaviour since the orders of 27 March 2023;
(c)Concerns are raised by the mother in relation to the father’s mental health and physical well-being, including, for example, the father’s behaviour in early 2023 in telling the children that he had an illness and not long to live, as well as the father informing Ms F (X’s counsellor) that he had only 6 months to live;
(d)The mother’s significant difficulties in communicating with the father since the Orders of 27 March 2023, including the father’s erratic communications with the mother since late 2023 and the mother experiencing consequential distress and anxiety.
The Court’s views above have taken into account that the parties’ children have vulnerabilities and special needs in that they all suffer neurodivergent conditions including ADHD, and two of the children, X and Y, are on the autism spectrum.
The Court observes that the Orders of 27 March 2023 were made by consent.
Broadly, the father, through his counsel, submitted that the mother’s contended material changes in circumstances since the Court’s Orders of 27 March 2023 were matters that she had complained of prior to those Orders and accordingly there could not be said to be any relevant material changes in circumstances so as to permit the mother to prosecute her proposed Minute of Orders.
The Court acknowledges that, to a not insignificant extent, the mother’s present complaints were mirrored in her complaints in relation to the father prior to the Court’s Orders of 27 March 2023.
However, X’s position, vis-à-vis the father, has changed and to a significant extent.
Again, on the mother’s evidence, the father’s behaviour towards the children since the Court’s Orders of 27 March 2023 is of concern in circumstances where the mother asserts that the children’s emotional position has been adversely affected by such behaviour. In this latter context, the Court observes that there is a significant suggestion that despite the family consultant’s opinion (paragraph 65 of her Child Impact Report) that the father’s vulnerability to at times respond in an angry manner may be mitigated by the father living with his mother who can provide some support, as well as his current partner, and attendance at a parenting program, this mitigation does not seem to have been borne out by reference to the mother’s evidence relating to the father’s adverse behaviour.
As to the father’s mental health, the Family Consultant had stated in her Child Impact Report that this issue does not appear to be a risk currently; however, an expert opinion from a treating specialist may well be helpful taking into account the mother’s evidence in this context.
The Court observes that despite the Orders of 27 March 2023 providing for a graduated increase in the three youngest children’s time with the father, and despite the children pursuant to those orders only to spend face-to-face time with the father (ultimately) during school holidays, thereby limiting the extent to which the parties need to co-parent the children, the above significant changes in circumstance have occurred. The Court observes that, on the mother’s evidence, since the court’s orders of 27 March 2023, the parties’ ability to adequately communicate in relation to the children has been unsatisfactory and the mother has experienced distress and anxiety in communicating with the father.
Having regard to relevant legal principle relating to the so-called rule in Rice & Asplund, the Court considers that there has been a sufficient change in circumstances to justify allowing the mother to reopen parenting proceedings and seek orders as proposed in her proposed Minute of Orders which was sent to the Court on 19 April 2024 and referred to on the hearing of this interlocutory application. This proposed Minute of Orders is set out in the Appendix to these reasons.
By reference to the mother’s evidence, the Court is satisfied that there is a significant prospect, if not a likelihood, that the mother’s proposed parenting orders set out in her Minute of Orders would be made should she be allowed to prosecute those proposed orders. The Court is satisfied that it will be the best interests of the child to permit the mother to prosecute such proposed orders. In this case, in the view of the Court, the interests of the children in allowing the mother to prosecute such proposed orders are more powerfully in the children’s welfare than to disallow the mother to prosecute such proposed orders.
Accordingly, the mother will be given leave to prosecute her proposed orders as set out in her Minute of Orders sent to the Court on 19 April 2024.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 7 May 2024
APPENDIX
MINUTE OF ORDERS
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT PARRAMATTA File No. PAC6181/2022BETWEEN MR GALVIS
Applicant
AND MS GALVIS
Respondent
PENDING FURTHER ORDER:
1.That the operation of Orders 1-3, 10, 12 – 23 inclusive of the Orders of 27 March 2023 (‘the Orders”) be suspended in relation to the Children W and X and the Court NOTES the provisions of Order 2 hereof shall apply in relation to each of these children.
2.That the operation of Orders 5 and 13 be discharged.
3.That the operation of Order 27 be suspended, pending further Order.
4.That the children, W and X spend time and / or communicate with the Husband in accordance with their respective wishes.
5.That the Husband pay 100 % of the costs of the Children’s airfares for any time the Children spend with him pursuant to Order 10 of the Orders of 27 March 2023.
6.That forthwith following the date of these Orders, the Wife do all acts and things necessary to arrange for the children, W and X attend with a psychologist, counsellor or such other suitably qualified mental health care-provider:
6.1As soon as appointments can be facilitated by such practitioner; and
6.2With such frequency as recommended by the children’s treating General Practitioner; and
6.3At such times as may be facilitated by the nominated therapist, and for such period of time as recommended by the therapist, for the purpose of therapeutic intervention and counselling regarding their respective relationship(s) with the Husband.
7.That the parties shall share equally in the cost of such therapeutic counselling for the children, W and X, under Order (6).
8.Within 14 days of the date of these Orders, the Wife provide to the Husband:
8.1a list of 3 proposed Single Expert psychiatrists or clinical psychologists; and
8.2 the curriculum vitae for each proposed Single Expert: and
8.3 a summary of available dates for interview and estimated costs,
8.4for consideration by the Parties for appointment as a Single Expert pursuant to Division 7.1.2 of the Rules to enquire into and report upon matters relating to the welfare of the Children.
9.Within 7 days of the date of provision of the list by the Wife to the Husband referred to in the immediately preceding order, the Husband shall nominate in writing, his preferred Single Expert.
10.In the event of the Husband’s failure to comply with the provisions of Order (14) hereof within the time provided, the Wife will in such instance nominate her preferred Single Expert.
11.Within 7 days of the date of receipt by the Wife of the Husband’s nomination of Single Expert, or should the provisions of Order (8) hereof apply in the event of the Husband’s default:
11.1the Wife shall then circulate to the Parties the proposed letter of appointment to such Single Expert; and
11.2the Husband and the Independent Children’s Lawyer will provide any request for amendment to the letter of appointment within a further 7 days; and
11.3the Wife will then forthwith forward the joint letter of instruction to the Single Expert.
12In preparing the report to the Court, the Expert appointed pursuant to these Orders be and is hereby requested to consider the following matters:
12.1The nature of the relationship between the child and each of the parents (and any other relevant family members);
12.2The likely effect of any change in circumstances including the likely effect on the child of any separation from either parent, grandparents, siblings or other relative of the child;
12.3The capacity of the parents or any other person to provide for the needs of the Children including physical, emotional and intellectual needs;
12.4The maturity, sex, cultural background and any other characteristics of the child or either parent that the Expert thinks are relevant to the welfare of the Children;
12.5Any risk of physical or psychological abuse which has occurred or is likely to occur;
12.6Any ill treatment or family violence or other abusive behaviour that is directed towards the Children, a member of their family, extended family or significant person and the likely impact of that on the Children;
12.7The attitude of the parents to the responsibility and duties of parenthood;
12.8What, if any, parenting or relationship education and/or training and/or counselling would be of benefit to any of the parents in order to improve their parenting capacity and relationship with the Children and other parent;
12.9The effect on the Children of spending time with each parent having regard to the parent’s current and future capacity to:
12.9.1Implement such an arrangement;
12.9.2Communicate with each other and resolve difficulties that might arise;
12.10The mental health and/or special needs of the Children; and
12.11Any mental health diagnosis or cognitive conditions of the parents and whether such diagnosis impacts on parenting issues and parental capacity;
12.12Such other issues as the Expert considers relevant.
13The Parties shall attend upon the Expert at times provided to each Party by the Expert.
14The wife shall ensure the Children’s attendance upon the Expert at times provided to them by the Expert.
15The Parties shall provide to the Expert as a consolidated, indexed and paginated electronic brief:
15.1A copy of these orders;
15.2Copies of all documents produced under subpoena, excluding financial documents;
15.3Copies of all material filed by either party in these proceedings; and
15.4Such further documents as the Parties may agree upon, and in the event of no consensus as between the Parties, that the Parties have liberty to apply for relisting before the Court in relation to a resolution of that discrete issue.
16The remuneration of the Expert be paid in equal shares by the Husband and the Wife.
17That payment shall be made in relation to these costs of the Expert by the Husband and the Wife making payment directly to the Expert within 7 days of any request for payment and any report prepared by the Expert shall not be released until such time as payment is made in accordance with this order.
18The parties shall sign all documents and give all consents to allow preparation of the Expert of the report to occur.
19That within 4 weeks of the date of these Orders, the Husband shall at the Husband’s cost, attend upon his GP for a referral for a comprehensive examination by a suitably qualified Specialist Medical Practitioner, for preparation of a report addressing Mental Health and Neurological Conditions including but not limited to consideration of:
19.1Any cognitive, mental health or behavioural issues that may be affecting the Husband;
19.2The implications of any identified mental health or neurological conditions in relation to the safety of other persons including children who the Husband may come into contact with;
19.3Any treatment or other allied Health care services that may assist the Husband in relation to an specific issues identified; and
19.4Any recommendations as to further assessments that should be conducted whether forensic assessment, or other psychological or psychiatric assessments.
20That the for the purposes of briefing the Husband’s Expert for preparation of the report referred to above:
20.1That within 7 days of selection of the Expert referred to in Order 16 above (“the Husband’s Expert”) the Husband shall issue all authorities and consents as necessary to his legal representatives to prepare the initial draft letter of instruction to the Husband’s Expert and provide to the Wife by her legal representatives, for settling/amendment;
20.2That within 7 days of receipt of the letter of instruction referred to in the immediately preceding paragraph of these Orders, the Wife by her legal representatives shall provide her responses and requests for amendment/inclusions to the letter of instruction to the Husband by his legal representatives;
20.3That for the purposes of assisting the Husband’s Expert in providing the requested opinion, the Husbands’ Expert be provided by the Husband with the following documents:
20.3.1All medical records and reports as may be available upon request for production from his current treating medical practitioners by the Husband’s Expert;
20.3.2A copy of all medical records produced in response to Subpoena’s issued in these proceedings;
20.3.3A copy of any Expert report prepared to date or otherwise in relation to the current proceedings;
20.3.4A copy of these Orders,
with the Husband by his lawyers to copy the Wife to all communications with the Husband’s Expert.
21The Report for the Husband referred to in the immediately preceding order shall be prepared by a forensic psychologist, psychiatrist, or clinical psychologist as recommended by the by the Husband’s GP, or as otherwise as agreed as between the Parties.
22That the Husband be restrained by injunction from:
22.1Abusing, denigrating, or humiliating the Wife or the Children either verbally, impliedly, by email, text message or any other means of electronic communication;
22.2Using obscene and/or foul language in any form of communications with the children or the Wife, or within their presence or hearing if the Husband is spending time with the Children;
22.3Making any comment either express, implied, in writing or otherwise, within the presence or hearing of the Children, that has as its intention or effect the denigration of the Wife and/or any member of the Wife’s family, and will take all reasonably steps necessary to ensure no third party does so within the presence or hearing of the Children;
22.4Contacting the Wife directly in any way other than in relation to the Children as necessary and strictly only in accordance with these Orders.
22.5Discussing the current proceedings with the Children or showing the Children any document or report prepared in relation to the current proceedings.
23That the Husband pay the Wife’s costs of an incidental to this Application.
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