Henley and Henley
[2018] FamCA 694
•30 August 2018
FAMILY COURT OF AUSTRALIA
| HENLEY & HENLEY | [2018] FamCA 694 |
| FAMILY LAW – CHILDREN – Application to re-open final parenting orders – Rice and Asplund principles – Where the father applied to have the matter re-opened – Whether the issue of residence should be re-litigated – Where the application to re-open the case was refused on the basis that the father could not establish any significant change of circumstances or a previously undisclosed fact. |
| Reid and Lynch (2010) FLC 93-448 Rice and Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr Henley |
| RESPONDENT: | Ms Henley |
| FILE NUMBER: | ADC | 1876 | of | 2014 |
| DATE DELIVERED: | 30 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 25-26 July 2018 |
REPRESENTATION
| THE APPLICANT: | Mr Henley |
| COUNSEL FOR THE RESPONDENT: | Mr Roberts |
| SOLICITOR FOR THE RESPONDENT: | Harry Alevizos |
Orders
The Court is satisfied and finds that the father has failed to demonstrate sufficient changed circumstances, or a previously undisclosed fact, such as to warrant a
re-opening of the final parenting orders made by Berman J on 19 August 2018 save as to the limited remitter ordered by the Full Court on 20 July 2017.
The proceedings are referred to Austin J for further case management.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Henley & Henley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: ADC 1876 of 2014
| Mr Henley |
Applicant
And
| Ms Henley |
Respondent
REASONS FOR JUDGMENT
The proceedings
Mr Henley and Ms Henley are the parents of N, ("the child") who was born in 2010 and is presently eight years of age. On 19 August 2016 Berman J made parenting orders following a four day trial. These Orders included the following:
1.That the parties shall have equal shared parental responsibility for N born …2010 ("the child").
2.That the child shall live with the mother.
3.That the child shall spend time with the father as follows:-
(a)From the conclusion of school on Thursday or 4 pm if the child is not at school to the commencement of school on the following Monday or 10 am if the child is not at school and each alternate weekend thereafter commencing 26 August 2016.
(b)For one half of each end of term and end of year school holiday periods as agreed between the parties but in default of agreement for the first half of each school holiday period to be calculated by counting the last day of the school term as representing the first day of the school holidays and the day immediately before the first day of term as the last day PROVIDED that paragraph 3(a) herein be suspended during all periods of school holidays;
(c) Such further and other times as the parties may agree.
The Orders of 19 August 2016 otherwise addressed the child's time with each parent on special occasions, conditions of changeovers, restraint on removal of the child from the metropolitan area of Adelaide, obtaining school information and immediate notification of emergency medical treatment of the child to the other parent.
On 14 September 2016 the father filed a Notice of Appeal in relation to Order 3(a) of 19 August 2016. He sought orders that the child live with each parent in a week-about equal time arrangement. On 20 July 2017 the Full Court allowed the appeal and set aside Order 3(a) of 19 August 2016. The proceedings were remitted for retrial and the Full Court ordered as follows:
5.Pending further order of the Family Court of Australia, the appellant father spend time with the child N born on … 2010 in accordance with Order 3(a) made by Berman J on 19 August 2016.
On 29 March 2018 Orders were made, inter alia, as follows:
2.The dispute between the parties under Part VII of the Family Law Act is listed for hearing in the Adelaide Registry of the Family Court of Australia at 10:00 am on Thursday, 26 July 2018, for a period of two days to determine the threshold issue of whether the father is able to demonstrate sufficient changed circumstances to warrant
re-opening of the final parenting orders made by Justice Berman on 19 August 2016 (save as to the limited remitter of the case for re-hearing in the terms prescribed by the Full Court of the Family Court of Australia on 20 July 2017).These Orders provided further that the father file and serve any Amended Application by 13 April 2018 and the mother any Amended Response by 27 April 2018.
On 13 April 2018 the father filed an Amended Application by which he sought the following orders:
PARENTAL RESPONSIBILITY
1.The father have sole parental responsibility for the child the child [N] Born … 2010. ("the child")
2.In relation to any decision the father is required to make in relation to education, religious and cultural upbringing, health and any other decision impacting upon the long-term welfare of any of the child, the father is to undertake the following actions before making such decision:
(a)The father is to provide the mother with no less than 14 days' notice in writing of any such proposed decision; and
(b)The father is to consult with the mother (by email or text communication unless he elects to communicate by phone or in person) with regard to any such proposed decision and make a genuine effort to give consideration to her expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the mother about any such proposed decision; and
(c)In the event that no agreement is reached between the mother and father, the father shall make the final decision and within 14 days of so doing, provide the mother with written confirmation of the decision (by email or text is sufficient).
IN THE ALTERNATIVE
3.That the father and mother have equal shared parental responsibility for the child save that the father have sole parental responsibility to make all decisions about his health.
4.Such other or further order/s as the Court deems to be in the best interests of the child;
LIVE WITH ORDERS
5.The child will live with the father.
6.The mother is to spend supervised time with the child for a period of not less than 2 hours each fortnight at such times as nominated by [Z Group] and supervised by [Z Group] and that for the purposes of giving effect to the foregoing the mother is to:
(a)Contact [Z Group] within seven days and arrange an appointment for assessment as to suitability for supervised time;
(b)Attend and participate in any assessment;
(c)Attend any appointments made [by Z Group] for supervised time a (sic) shall otherwise comply with all reasonable requests and/or directions of the staff of [Z Group]; and
(d)On each occasion of supervision pay such reasonable charge/s as [Z Group] requests.
7.In addition to the time spent in pursuant to order 6 above, the mother be at liberty to spend time with the child by attending his team sporting activities as and when they occur (presently occurring on Saturdays) while the child is in the Father's care.
8.For the purposes of order 6, the father and the mother shall each within seven days do all acts and things necessary to arrange supervision by [Z Group], including participating in the intake assessment required by that service.
9.During the periods of time referred to in Order 6, the mother shall observe and comply with all directions and recommendations of the [Z Group] supervisor.
10.The father and the mother shall equally share the costs of supervision by [Z Group], and for this purpose the father shall pay in advance the full cost of each visit at first instance and the mother shall reimburse the father for one-half of the said cost by transferring monies directly into an account nominated by the father within seven days of receiving a written request from the husband and a copy of the receipt showing the father's payment to [Z Group].
11.The child shall communicate with the mother by Skype each Thursday between the hours of 6.00pm and 6.30pm and for the purpose of such communications the father shall use his best endeavours to encourage the child to speak to the mother.
IN THE ALTERNATIVE
12.That the child shall live with the father.
13.That the child shall spend time with the mother as follows:-
(a)From the conclusion of school on Thursdays or 4 pm if the child is not at school to the commencement of school on the following Monday or 11 am if the child is not at school and each alternate weekend thereafter commencing at (such time as ordered by the Court);
(b)For one half of each end of term and end of year school holiday periods as agreed between the parties but in default of agreement for the second half of each school holiday period to be calculated by counting the last day of the school term as representing the first day of the school holidays and the day immediately before the first day of term as the last day provided the terms of order 13 shall be suspended during the school holiday period which occurs at the end of Term 4 each year and the child shall spend time with each parent, unless agreed by the parties in writing, for the first half of the school holiday period with the father and for the second half of the school holiday period with the mother.
(c) Such further and other times as the parties may agree.
IN THE ALTERNATIVE
14.The child shall live: (a) with the father from after school ends or 3.00 pm on Friday, until the school day ends or 3.00 pm the following Friday and each alternate week thereafter; and (b) with the mother from after school ends or 3.00 pm on Friday until the school day ends or 3.00 pm the following Friday and each alternate week thereafter.
15.Each parent shall be responsible for the daily care, welfare and development of the child during times he is living with that parent.
16.The terms of order 14 shall be suspended during the school holiday period which occurs at the end of Term 4 each year and the child shall spend time with each parent, unless agreed by the parties in writing, for the first half of the school holiday period with the father and for the second half of the school holiday period with the mother.
17.As and from 1 December 2018, the child shall spend time with each of his parents as follows:-
(a)In odd numbered years, with the mother from 2 pm Christmas Eve until 2 pm Christmas Day and with the father from 2 pm Christmas Day until 2 pm Boxing Day;
(b)In even numbered years, with the father from 2 pm Christmas Eve until 2 pm Christmas Day and with the mother from 2 pm Christmas Day until 2 pm Boxing Day.
18.That unless otherwise agreed between the parties and where the handover of the child does not occur at the child's school:-
(a)The mother is to collect the child from KFC, [D Street, Suburb I] at the commencement of her time with the child;
(b)The father is to collect the child from KFC, [D Street, Suburb I] at the commencement of his time with the child.
19.That the parties be restrained and an injunction granted restraining each of them from changing the principal place of residence of the child from the metropolitan area of Adelaide and from removing or causing or allowing the child to be removed from the Commonwealth of Australia.
20.That each of the parties be authorised to receive direct from the child's school (at their separate expense) information regarding the child's attendance and progress including but not limited to school reports, school photos and parent newsletters.
21.That the parties will immediately advise each other of any emergency medical or dental treatment required by the child when in each of the parties separate care and shall provide details of any hospital or dental admission with the necessary authorities to enable each of the parties to contact any treating medical practitioner or dentist and obtain information in respect of the child's health, ongoing medical or dental treatment or other health related matters affecting the child.
22.The father and the mother be, and are hereby restrained from:-
(a)Discussing these proceedings with or in the presence of, or hearing of, the child.
(b)Taking the child to [Town P] during school terms.
(c)Subjecting the child to more than a total of 4 hours travel during school terms or any weekend during school terms.
(d)Denigrating or making derogatory remarks about each other or any member of the other's family to, or in the presence or hearing of, the child.
(e)Using physical discipline on the child.
23.The child spend further time and communicate with the mother as follows:
(a) for Christmas each year as follows:
(i)from 4:00pm Christmas Eve to 4:00pm Christmas Day in 2018 and each alternate year thereafter; and
(ii)from 4:00 pm Christmas Day to 4:00 pm Boxing Day and each alternate year thereafter;
(b)for Easter each year (when it does not fall during the school holidays);
for half of the Easter period in each year as agreed between the parties, and in default of agreement, for the second half thereof;
(d)on her birthday in each year:
(i) from 4.30 pm to 7.00 pm on a school day; and
(ii) from 10.00 am to 3.00 pm if a non-school day;
(e)on the child's birthday, should it not coincide with time that the child spends with the mother, in each year from 2pm – 6 pm.
24.If the father have sole parental responsibility of the child then father keep the mother informed of the child's primary school progress and otherwise he continue to attend at [V School] until the completion of his primary education.
25.That prior to the time the child must be booked into a secondary school or college the parties must discuss and make a genuine effort to reach agreement as to which is the appropriate secondary school and if agreement cannot be reached then the parties, and the child if appropriate, are to attend upon a family dispute resolution practitioner and use their best endeavours to resolve this issue prior to filing any Application and returning to Court for a further hearing.
26.The father do all acts and things and sign all necessary authorities to ensure that the mother receives all school notices, details of school concerts, sporting events and the like that parents would ordinarily receive.
27.That both parents be at liberty to attend all school activities ordinarily involving the attendance of parents.
28.Such further or other Orders as this Honourable Court deems just and fit.
On 27 April 2018 the mother filed a further Amended Response by which she sought the following orders:
1.That the infant child [N] born … 2010 live with the mother.
2.That the Mother have sole parental responsibility for the said child.3.That any contact between the Father and the said child be supervised at a contact centre.4.That the Father spend time with the said child as follows:i. from 5.30pm Thursday to 5.30pm Saturday in week one;ii. from 5.30pm Friday to 5.30pm Sunday in week two;iii. for one half of each period of school holidays;iv.at such further times on special occasions including the said child's birthday, Christmas and Father's Day as may be agreed.5.That the parties have equal shared parental responsibility for the said child.
6.That the mother be permitted to remove the said child from the Commonwealth of Australia for the purposes of a holiday in [South East Asia].7.Such further or other orders as this Honourable Court deems fit.8.That the father spend time with the said child as follows:
i.each alternate weekend from the conclusion of school on Thursday or 4.00pm if the said child is not at school to the commencement of school on the following Monday or 10.00am if the said child is not at school;
ii.for one half of each period of school holidays;
iii.in 2018 from 2.00pm Christmas Eve until 2.00pm Christmas Day and in each alternate year thereafter;
iv.in 2019 from 2.00pm Christmas Day until 2.00 pm Boxing Day and in each alternate year thereafter;
v.at such further times on the said child's birthday and Father's Day as the parties may agree.
9.That any handovers that do not take place at the said child's school shall take place at KFC, [D Street, Suburb I] or at such other location as the parties may agree.
10.That the parties be restrained and an injunction be granted restraining each of them from changing the principal place of residence of the said child from the metropolitan area of Adelaide and from removing or causing or allowing the said child to be removed from the Commonwealth of Australia save and except that the mother shall be permitted to remove the said child from the Commonwealth of Australia for the purposes of a holiday in [South East Asia] provided the mother gives the father thirty (30) days written notice prior to departure on such holiday and provides the father with a departure and return date, details of where the said child shall be travelling to and contact details for the said child during the course of such holiday.
11.That each of the parties be authorised to receive direct from the said child's school (at their separate expense) information regarding the said child's attendance and progress including but not limited to school reports, school photos and parent newsletters.
12.That the parties immediately advise the other of any emergency medical or dental treatment required by the said child when in each of the parties separate care and provide details of any hospital or dental admissions to enable each of the parties to contact any treating medical practitioner or dentist and obtain information in respect of the said child's health, ongoing medical or dental treatment or other health related matters affecting the said child.
13.Such further or other orders as this Honourable Court deems fit."
Background
The father was born in Australia in 1953 and is currently 65 years of age. The mother was born in South East Asia in 1982 and is presently aged 36 years. The mother has a child from a previous relationship, F. This child was born in 2002 and is presently 16 years of age.
The parties met on-line in October 2008. The mother travelled to Australia with her son F and the parties married in 2009. They separated on 25 May 2013 and were divorced in August 2014.
The father has four adult children from two previous marriages. In December 2014 the father married his current wife, Ms L Henley. They have a child, AA, who was born in 2017 and is presently nine months of age.
At the date of separation the parties lived in Town P, where the father worked as a public servant. In October 2013 the mother moved to Adelaide with the child and F. The father made the long trip to Adelaide from Town P to spend time with the child each alternate weekend.
The father then obtained a position at Town L, which is approximately 100 kilometres from Adelaide, and the child began to spend four nights per fortnight in his care. In October 2015 the father and his current wife moved to Suburb V, which is the suburb where the child began to attend school in January 2016.
In May 2016 the mother, F and the child moved into a house at Suburb X owned by Mr K. The mother gave evidence that Mr K "is not really my partner, he is not committed to me". Nonetheless, the mother travels to Town P and stays with Mr K at his home. Mr K travels to Adelaide and stays with the mother at the house in Suburb X.
Approach to these proceedings
In Rice and Asplund (1979) FLC 90-725 Evatt CJ, with whom Pawley and Fogarty JJ agreed, said:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material ... These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
In Reid and Lynch (2010) FLC 93-448 Finn J said:
21.... [A] court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment, unless the court can be satisfied that there is some changed circumstance which would justify such a serious step, or some fact which was not previously disclosed which would have been material in the making of the orders.
22.I would also in this context refer to the observations of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 (albeit made in the context of the admission of further evidence on appeals in parenting cases) that the “important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings."
The orders of the Full Court of 20 July 2017 will result in a new hearing on the issue of the time which the child spends with the father. Order 2 of 19 August 2016, which provided that the child lives with the mother, was undisturbed and remains on foot. Essentially the issue for my determination in these proceedings is whether the father has demonstrated some changed circumstance, or previously undisclosed fact, which would justify the serious step of a re-litigation of the issue of residence.
Consideration
In his affidavit of 8 June 2018 the father alleged that the mother "at various times has behaved in a sexually inappropriate manner towards the child". The father deposed that in 2013 the mother "sucked the child's penis" in his presence. This event is remote in time and obviously could not constitute a change in circumstances or a previously undisclosed fact.
The father deposed that the child "complained to [Ms L] and me that his mother had twice videoed him on the toilet and had shown the video to others". The mother stated in her oral evidence that she and the child "were playing at the time". The father maintained that the child was "humiliated and angry at this" but offered no evidence of the basis of this belief.
The father deposed further that the mother "behaved sexually inappropriately to a young female teacher" during the marriage. Leaving aside the difficulty of vagueness of this allegation, the mother's supposed conduct during the marriage could hardly constitute a relevant change in circumstances or a previously undisclosed fact. The father's allegation that the mother "has been extraordinarily tactless in relation to sexual matters" after the separation is so vague and generalised as to be of no assistance to his case.
The father deposed that the child said to him "mum is hitting me" in approximately March 2018. The father advanced no details or particulars whatsoever of this allegation of family violence on the part of the mother.
It appeared that the father sought to bolster this suggestion of family violence on the part of the mother by reference to her alleged conduct toward F during the marriage. As noted above, alleged conduct of the mother during the marriage does not assist the father's case for present purposes.
The father's only other evidence of alleged violence perpetrated upon the child by the mother was the child's alleged statement to him "some months before" he swore his affidavit of 8 June 2018 that "I like [Mr K] because he said to mum 'why are you getting angry with the child?'" The father provided no evidence at all as to the context of this alleged comment by the child.
The mother denied that she hits the child. She conceded that she hit F "because that is how I was brought up" but she maintained "I learned from that". In my view, the evidence of the father and his current wife did not establish that the mother subjects the child to physical violence.
The father complained that the child sleeps with the mother, a fact which was conceded by her. Nothing in the father's material indicated that this situation of co-sleeping has arisen since the trial in 2016.
The father deposed that the child was absent from school for 28 days in 2016. A total of 15 days of absence occurred prior to the trial in June 2016, thus the father had the opportunity to present evidence in relation to this concern if he had elected to do so.
At the hearing in July 2018 the father tendered school absence records for the period 1 January 2016 to 5 April 2018 (Exhibit 3). These records demonstrate that the child was fully or partially absent for 36 days in 2017 and 13 days in 2018 up to 5 April 2018.
The mother conceded that she has taken the child out of school to travel to Town P but maintained that she has done so on only one occasion. Her evidence was that she travels to Town P with the child on long weekends and during school holidays. The mother said that the child's absences otherwise were due to illness or for visits to a temple.
The child's Semester 1 2018 school report (Exhibit 2) could reasonably be described as favourable and reflects that he applies himself to his school work and achieves "satisfactory" or "good" results. The evidence demonstrated no deterioration in the child's performance at school since the orders of 19 August 2016. In fact the father's own evidence was that, in 2017, the child's teacher said to him "[the child] has blossomed".
The father's next area of alleged change in circumstances was entitled "the child's wellbeing". In his affidavit in this context the father made the following generalised allegations:
1.The child is "negative and emotionally brittle" and "lethargic" during his Saturday soccer matches, after he has spent Friday nights in the care of the mother.
2.In November 2017 the child "was very tired, he had a persistent cough and he also complained of a sore throat."
3. Early in 2018 the child lost three kilos in weight.
4. On 31 May 2018 the child was constipated and had a nosebleed.
The father's own evidence was that he sought medical attention in relation to the child's cough in December 2017. The father adduced no medical evidence as to any of his alleged concerns in relation to the child's health. There was no evidence of any causal connection between the father's contentions as to the child's health and the mother's care of the child.
The father deposed that the child complained to him "some months" before he swore his affidavit on 8 June 2018 that "[F] punched me in the head". The father deposed further that the child said "[F] is making me eat eggs" as an explanation for a bout of crying when the father attempted to serve him eggs for breakfast.
There was no evidence of any physical violence towards the child on the part of F, other than the child's alleged statements to the father. The Family Consultant observed in her report of 26 February 2018 that "observation [of [the child] and [F]] was characterised by comfortable and close interactions".
In his affidavit the father referred also to the birth of the child AA; the trial judge's mistaken assumption that he lived at Town L rather than Suburb V and to criticisms made by Berman J of the mother's trial affidavit and her solicitor as justifications for a new parenting hearing. The birth of a child to the father and his wife was a matter within the contemplation of the trial judge, as his Honour referred to their seeking medical assistance with conception.
The trial judge's erroneous finding as to the father's place of residence was a matter which was considered by the Full Court. Thackray CJ, Strickland and Johnston JJ held that:
39.It has not been shown that the mistaken belief by the primary judge about the father's place of residence has led his Honour into substantive error. Accordingly, we are satisfied that there is no merit in this ground.
In these circumstances, it seems to me that it is not now open to the father to rely upon this erroneous finding of the trial judge as evidence of a change in circumstances or a previously undisclosed fact.
The trial judge did level criticism at the trial affidavit of the mother and her solicitor. I can see no reason why these criticisms can assist the father for present purposes.
The father raised also in his affidavit "the mother's psychological health" and complained that the trial judge accepted into evidence and relied upon a report from a psychiatrist named Dr BB. The father relied upon this matter in his appeal and the judgment of the Full Court indicates that their Honours found merit in this ground.
The only evidence of the father which could conceivably pertain to the mother's psychological health was the child's alleged statement to him on 2 June 2017 "mum is going to die soon because she has a rose in her head". The father gave no evidence as to context of this alleged statement and there could be any number of reasons why the child might make such a remark. In my view, this evidence does not assist the father's case for present purposes.
The father relied upon an affidavit of his current wife,
Ms L Henley, sworn on 8 June 2018. Ms Henley deposed to a number of alleged complaints by the child as to the conduct of the mother and F. None of these matters were set out in proper form as direct speech.
Examples of the defective evidence contained in the affidavit of
Ms L Henley were as follows:
4.During those chats on 2017, he said some things that make [Mr Henley] and I worry, and these are:
a.[the child] (teary-eyed) mentioned about his mom smacking him often.
b.[the child] asked if he can try my milk (I was pregnant with [AA]) because his Mom told him to ask me if he can drink my milk when he asked her about it. I was shocked and disrespected and explained to him gently that it is not for him and that he and [AA] can share pureed fruit when she will be bigger. He appeared upset and on occasions stared at my breasts and made licking sound and said "yum" and commenting he really wants to try the milk.
c.His Mom asked the child to put his finger on [F's] (the child's brother) bum crack. [F] was washing the dishes and his Mom saw that his bum crack was showing, Then his Mom motioned the child to put his finger to [F's] bum. Also, he said that he did it to his [Mr K] (his Mom's bf) and his [Mr K] didn't get angry.
It is impossible to discern from evidence of this nature precisely what the child allegedly said to Ms L Henley. The difficulty in determining what weight, if any, should be attached to any of these alleged matters is compounded by the lack of any evidence of the context of these supposed statements by the child. Another difficulty with this evidence is the possibility or probability that the deponent has placed her own interpretation on statements and gestures which may have been made by the child. For these reasons, I conclude that it would be dangerous for any significant weight to be attached to the contents of this affidavit.
I had the benefit of a Family Report dated 26 February 2018, prepared by Ms CC, in which she offered these assessments and opinions of the child's current life circumstances:
96.[The child] presented as a happy child who appears to be doing very well in all aspects of his development currently. This is particularly positive given the information provided by his teacher about his insecurity and distress when he first started school. The information from the school is very positive about the child's social and overall development. At the assessment, he was spontaneous,
age-appropriately independent and expressive. He may be a little immature for his 7 years. It is conjectured that this is within normal range and that with ongoing settled arrangements and support from his school he will continue to reach milestones very adequately.The Family Consultant opined further:
99.While the overall picture is very positive, [the child] demonstrated some clear signs of a child exposed to enduring parental conflict. These included his clearly coached assertions about wanting to live equally with both parents. When further investigated, the reality that he is too young to understand the implications of what he had said, was clear. Another indication emerged more laterally. All three of the adults mentioned [the child] making comments to them (presumably about the other parent). It was clear that all three adults were implying that sometime [the child] makes negative statements about his other parent. One of the classic indications that children have been affected by unresolving distrust and tension between their parents is that the child will begin to say different things to each parent including making negative statements about each parent to the other. This is a well-established consequence of the deep and hard-wired need of children to maintain security with each of their parents and is an unconsciously motivated phenomenon. Essentially it indicates that the child has some anxiety which emerges in the form of these verbal expressions.
100.Therefore it can be concluded that [the child] is negatively affected by his perception of ongoing acrimonious tension between his caring adults. It is likely that this causes a low level of anxiety for [the child] which is not necessarily particularly apparent in everyday life.
Conclusion
The father now seeks to re-litigate the issue of residence on the basis of three alternate outcomes:
1.that the child lives with him and spends a minimum of two hours supervised time per fortnight with the mother.
2.that the child lives with him and spends four nights per fortnight and half of all school holidays with the mother.
3.that the child lives with each parent in an equal time arrangement.
The father was unsuccessful in his quest for an equal time arrangement at the trial in 2016 and now seeks to use the remitted proceedings to press again for orders for such an arrangement.
The father must be taken to hold an intention to conduct a parenting case which, at least in part, will be an attempt to establish that the child is placed at unacceptable risk of harm in the care of the mother. I have outlined above the evidence upon which the father appears to rely for that purpose and the difficulties which I see with that material. I have concerns as to the potential impact upon the child of his being the subject of litigation with such a focus.
I am mindful of the expert evidence of the Family Consultant, in relation to the child's generally favourable life situation at present, subject to his exposure to "acrimonious tension between his caring adults". This evidence satisfies me that it is likely that the child would be adversely affected by renewed and
wide-ranging litigation in relation to parenting orders.
It was my impression that the father has grasped for reasons to criticise the mother and her care of the child, in an attempt to justify a re-litigation of the issue of residence. I do not doubt his love and concern for the child but I am of the view that his focus is on achieving the primary care of the child or an equal time arrangement.
It is my view, and I find, that the father has not demonstrated a change in circumstances or some undisclosed factor which is sufficient to warrant a
re-opening of parenting issues save for the limited remitter ordered by the Full Court on 20 July 2017.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 30 August 2018.
Associate:
Date: 30 August 2018
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