HOLST & BLAKESLEE

[2018] FCCA 195

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLST & BLAKESLEE [2018] FCCA 195

Catchwords:
FAMILY LAW – Parenting – consideration of principle in Rice & Asplund – Father’s Application dismissed including for the failure by the Father to file any evidence in support of his Application.

Legislation:

Family Law Act 1975

Cases cited:

Carriel v Lendrum (2015) 53 Fam LR 157
CDW v LVE [2015] WASCA 247
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1979) FLC ¶90-725

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Walter & Walter [2016] FamCAFC 56

Applicant: MS HOLST

Respondent: MR BLAKESLEE

File Number: CAC 1823 of 2013

Judgment of: Judge Neville

Hearing date: 25 October 2017

Date of Last Submission: 10 November 2017 (matter determined “on the papers”)

Delivered at: Canberra

Oral reasons delivered on: 16 November 2017

Written reasons provided on: 15 February 2018

REPRESENTATION

Solicitors for the Applicant: Legal Aid NSW

Solicitors for the Respondent: Self represented

Solicitors for the Independent Children's Lawyer: Evans Family Lawyers

ON A FINAL BASIS, THE COURT ORDERS THAT:

1. The Independent Children’s Lawyer be discharged.

2. The Initiating Application filed by the Mother on 16 February 2017 and the Response filed by the Father on 20 March 2017 be dismissed.

3. Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

4. Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

5. All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1823 of 2013

MS HOLST

Applicant

And

MR BLAKESLEE

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 16^th November 2017 I delivered detailed oral reasons in relation to a very small number of discrete issues regarding the ongoing parenting contest between these parties.  For reasons not explained the Father did not attend the delivery of judgment; nor did he attend by telephone (the Father lives (omitted) New South Wales, as does the Mother).  After delivery of reasons, the Father later contacted my Chambers to ask for written reasons.  These are those reasons, slightly revised, but in no substantive way, from the transcript. 

2. The matter was dealt with by way of written submissions, which is also to confirm, contrary to any belief of the Father, that there was no actual hearing of the matter in Court.

3. This matter has not infrequently come before the Court.  It involves basically good parents who have, since they separated, become parents of other children in addition to the child who was the subject of final Consent Orders in 2015.

4. The Father seeks to re-visit those final orders, by virtue of a Response that he filed on 10^th April 2017.  This was a Response to the Mother’s Application, which solely sought the return of the child to attend the school originally agreed to by the parents, which Order was made on 13^th April 2017.  The Father’s Response sought Orders in relation to four discrete issues regarding (a) the child’s schooling, (b) vaccinations, (c) Christmas holidays and (d) sibling birthdays.

5. Very significantly, the Father did not file any evidence in support of his “Application” to the Court to re-visit these issues.  This is concerning.  What is also concerning if not troubling is the report by the Independent Children’s Lawyer (“the ICL”) that the Father walked out of a Family Dispute Resolution Conference held on 25^th October 2017.  That was a very serious step to take, particularly where the Father now seeks to re-agitate issues that he chose not to address at the mediation.  Just even in terms of “Court and resource management”, he has chosen the most resource-intensive course, namely to litigate rather than to mediate.

6. In addition to the evidentiary lacuna to which I have referred, according to long-established principle, beginning with Rice & Asplund, and more recent Full Court authority such as SPS & PLS and Carriel v Lendrum (these and other cases I will return to shortly) the Applicant is required to establish that there has been a significant change in circumstances such as to warrant the Court effectively re-opening the litigation.  Part of the Court’s consideration of such Applications is whether to subject the child to further litigation and whether to do so would or could potentially (pursuant to any Orders made) be in the best interests of the child.

7. In what follows, I set out firstly basic principles to which the Court needs to have regard.  Then I set out the submissions received from the parties and the ICL, it being noted in Orders made on 25^th October 2017 that the matter would be dealt with, primarily but not only because of the inability of the Court to find hearing-time in Court, by way of written submissions. 

8. Finally, by reference to the evidence (such as it is/was) before the Court, and by reference to the principles outlined, I record the Court’s conclusion that the Orders as proposed by the ICL should be made, which results in the Father’s attempt to re-open and re-litigate parenting issues between the parties being dismissed.  This is so because, in my firm view, he has not satisfied – either as a matter of evidence or as a matter of legal principle - the relevant “test” as prescribed by the Full Court in Rice & Asplund, and many subsequent cases.

Outline of Principle

1. I note the following from four of many Full Court decisions that deal with the principle first articulated by the Full Court in Rice & Asplund.[1] 

   [1] Rice & Asplund (1979) FLC ¶90-725.

2. Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[2] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set out all of them from his Honour’s judgment, save for Warnick J’s comments at [48] and [81], which are as follows (emphasis added):[3]

   [2] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.

   [3] Warnick J’s comments in SPS & PLS  were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].

   [48] In my view, reflection on the rule shows that:

   (i)   What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

   (ii)     In its original formulation, the rule is directed to application as a preliminary matter.  Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing.  The consequences of that determination have received little attention.

   (iii)   At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

   (iv)    Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.

   (v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   (vi)    “Shorthand” statements of the rule may contribute to its misapplication.

   (vii)   Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.

   [81] …in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”.  Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing.  Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.

3. In 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington[4] discussed further the principle and application of Rice & Asplund.  Among other things, the Court in Miller v Harrington said, at [72] (emphasis added):

   It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage.  This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.

   [4] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.

4. Then at [80] and then at [82] - [84], the Full Court noted:

   [80] In our view, that passage [at [81] in SPS & PLS] need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.

   [82] … the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.

   [83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.

   [84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….

5. In Marsden v Winch, the Full Court observed, at [50]:[5]

   Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made.  Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case.  How is that decision to be made?  The court must look at:

   1)   The past circumstances, including the reasons for the decision and the evidence upon which it was based.

   2)   Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   3)   If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.

   [5] Marsden v Winch (2010) 42 Fam LR 1.

6. Then in 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[6]  At [43], their Honours commented on the rule in Rice & Asplund:

   If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.  

   [6] Poisat & Poisat (2014) FLC 93-597.

7. Most recently, in Carriel v Lendrum,[7] a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle [or rule] in Rice & Asplund.  At [46], their Honours said (emphasis added):

   … we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled.  It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….

   [7] Carriel v Lendrum (2015) 53 Fam LR 157.

8. After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [43]), at [56], the Full Court said:

   This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Act in determining where the best interests of the child might lie.

9. Then at [57], their Honours stated (emphasis added):

   In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision.  First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making.  Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child whilst it exists, has been brought to an end by a curial order.  Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.

10. Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):

    Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother.  Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing.  She said this (at paragraph 3):

    The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):

    “… Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”

11. Most recently, in Walter & Walter,[8] the Full Court (May, Ainslie-Wallace & Murphy JJ) dealt with an appeal in relation to a so-called Rice & Asplund matter.  In the course of the disposition of that unsuccessful appeal, by reference to most of the cases to which I have already referred in these reasons, I note briefly the following.

    [8] Walter & Walter [2016] FamCAFC 56.

12. First, at [51] – [57], Ainslie-Wallace J said (May J agreed with her Honour’s reason as well as those of Murphy J):

    [51] Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.

    [52] It was argued for the mother that his Honour erred in finding that she had failed to demonstrate a sufficient change in circumstances to justify re-opening the parenting proceedings.

    [53] His Honour concluded at [100] that the facts did not establish “a new and vital change in the circumstances”, and found that it was “obvious” that (omitted) had been anxious for some time and that anxiety had from time to time manifested itself in her refusing to go to school. He went on to offer what he considered to be the reasons for this, including that she had recently commenced high school.  He thus found at [111] that the mother’s evidence did not establish a material change of circumstances in the necessary sense.

    [54] The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296.

    [55] In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not open to his Honour on the evidence before him.

    [56] Thus it was argued that, had his Honour indeed taken the mother’s evidence at its highest it was not open to him to find that there had been no material change in circumstances. It was further argued that both his Honour’s conclusion that the child had always been anxious, and that her present refusal to attend school was a manifestation of a pre-existing condition and was probably due to her attending a new school, were findings unsupported by the evidence.

    [57] His Honour’s finding that the child’s present anxiety and refusal to attend school was unsupported by the evidence. However, it was a conclusion reasonably open to his Honour given the accepted increase in her refusing to attend school and anxiety generally with the beginning of a new school regime.  It could not be said that the conclusion was not open to his Honour.  His Honour’s findings clearly accept the parties’ position that (omitted)’s anxiety and school refusal had escalated. The issue for his Honour was whether these circumstances led to the conclusion that there had been a material change in circumstances. His Honour found that they did not. That was a determination open to him and I find no error in his conclusion. This challenge is not made out.

13. In his consideration of the challenge regarding the trial Court’s assessment of whether there had been a material change in circumstances, Murphy J said, at [83] – [86]:

    [83] In any event, while the arguments in support of the contention are framed as challenges to “principles” relating to the rule, they are, in essence, challenges to the weight which his Honour attached to aspects of the evidence.

    [84] In my view, the findings made by his Honour were entirely open to him on the evidence and it was entirely open to his Honour to include the matters to which his Honour made reference in reaching a determination that a material change in circumstances was not established.

    [85] In that respect, it has been held recently that:

    … Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…[9]

    [9] CDW v LVE [2015] WASCA 247, at [88] per Martin CJ.

    [86] In my view his Honour made no error as asserted on behalf of the mother.

1. Then, after referring at a little length to Warnick J’s decision in SPS & PLS, at [110] – [116], Murphy J continued (internal citations omitted; emphasis added):

   [110] The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.

   [111] In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.

   [112] However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.

   [113] It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:

   (3)     The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

   (4)     The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

   [114] In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “… even where the evidence demonstrates a material change since the previous order”.

   [115] Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.

   [116] It is not established that his Honour erred in law; that he failed to take account of relevant considerations; that he took account of irrelevant considerations or committed any other discretionary error. No error in the exercise of his Honour’s discretion is pleaded nor can any be seen in his Honour’s reasons.

The Mother’s Submissions

1. Here I need only note that the Applicant Mother agreed with the written submissions of the ICL.  Therefore, no further submissions were filed by her.

The Father’s Submissions

1. The Father’s written submissions, filed 10^th November 2017, were as follows:

   1) On 25 October 2017 all parties attended a FDRC.  Neither the ICL nor Ms D gave any indication the mediation would bring resolve regarding the issues at hand.   With the facilitator’s expressed concurrence, I respectfully ended the session.  I reject the ICL’s inference that I have not made every effort to work towards resolve.

   2) The Final Orders (2015) were myopic in scope due to my limited foresight as a self-litigate and thus do not account for my son’s approach to teen-hood. 

   3) Nor the mother, the ICL, or the school have contested any of the evidence before the Court regarding the school’s conduct and mistreatment of our son.

   4) Since the original Orders were drafted in 2015 there have been significant problems at the school which have impacted my son in a negative way. These issues have been unable to be resolved amicably due to the biased behavior of the school favoring the mother. This is proven through submitted evidence. Significant substantiated material reveals the mother (omitted) as complicit in excluding me from my son’s education thus greatly impeding his potential and safety.  Recent events show both the mother and the school to be unchanging in such regard.  

   5) The Court is fully aware that there is no punitive facility capable of intervening in the issues outlined in my Response in any actual capacity.  His Honor himself conceded concern via subpoenaing the school stating he sought to “put the school on notice”.   In such the Court must acknowledge that ‘to not’ intervene will, in all effect, condone the school’s prior conduct and thus give sanction the school and the mother to escalate their reprehensible behavior.

   6) It is thus a reasonable request that the Court order our son to be un-enrolled from the school at the end of the 2017 year and that any subsequent re-enrollment be made conditional on ‘both’ parents’ satisfaction that the school guarantee equal and impartial parental involvement via the means of a tri-partied contract. 

   7) The Court compelled me to co-sign a re-enrollment contract newly fabricated by the school with sections of the document physically omitted, lest be found in breach of Orders (made 13/04/2017).   The forcing of me to sign such a dubious contract gives precedence to the Court’s capacity to compel all parties to come to agreement via the drafting of a contract that; obliges the school to respond to all complaints made; to provide certainty that it will cease all preferential treatment of one parent over another; and beholden itself to its own policies - lest incur significant cost and risk the removal of our son from the school.

   8) [X] not being immunized is a health risk for his sibling whilst of serious concern and I request this is immediately resolved.

   9) The 2015 Orders accommodate my son’s sister’s birthday - a significant concession made on my part and agreed to by both the mother and the ICL.  This consideration has not been reciprocated by the Mother nor encouraged by the ICL with the mother denying my son attending his new brother’s birthday.

The Independent Children’s Lawyer’s Submissions

1. The Independent Children’s Lawyer’s written submissions, filed 25^th October 2017, were as follows:

   1) In circumstances where final Orders were made by consent of all parties in 2015, and where the matters in respect to the Initiating Application filed 2017 have been resolved by the Court, the burden of demonstrating that there has been a change of circumstances must necessarily fall to the Respondent father.

   2) To re-open the proceedings and for the Court to determine the issues that remain in dispute, the father is required to demonstrate, on the available evidence, that “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.”[10]

   3) The father has filed no affidavit material in support of his Response filed 10 April 2017. The father’s written submissions and Response raise matters that require, at least on the father’s case, further judicial intervention as follows: schooling, vaccinations, Christmas holidays and sibling’s birthdays.

   4) At the time of the making of the 2015 final Orders, 3 of those 4 issues were known to the parties. Since those Orders were made, the father has had another child, giving rise to the new matter of sibling’s birthdays. However, living [sic - in] the household of the mother at the time of the 2015 Orders was the child’s elder half-sister. It could be assumed that special events involving other family members was therefore an issue that the parties were aware of, and sought to make no orders about.

   5)  The father terminated mediation 1.45 hours into a 3 hour FDRC on 25 October 2017. Mediation was an opportunity to resolve all, or some, of the outstanding issues. The father did not avail himself of the opportunity to fully engage in that process, opting to terminate the session and consequently, return the matter back to the Court.

   6) The ICL supported the parties in resolving the matter via an FDRC process. However, in light of the fact that mediation was terminated by the father, the ICL no longer supports the ongoing intervention of the Court in the resolution of the parties parenting matters, despite the Court having the jurisdiction to do so.

   7) The ICL does not support the Orders as sought by the father. In those circumstances, the ICL submits that without any evidence before the Court, the father cannot demonstrate that these has been the requisite “change in circumstances” that would warrant the Court re-opening proceedings.

   8) All outstanding Applications and Reponses should be dismissed. The appointment of the ICL should be discharged.

   [10] Rice & Asplund (1979) FLC ¶90-725.

Consideration & Disposition

1. In short, I accept and adopt the ICL’s submissions.  In particular, I note the Court’s grave concern at the risk to the child, [X], being again and or interminably embroiled in the now almost never-ending contest between his parents.  The fighting has to stop.  One small step in this regard is the Court putting an end to this round of litigation.  The parents agreed to Orders in 2015. 

2. The Father says that he was “myopic” at that time in entering those Orders.  Whatever that actually means, the old adage of ignorance of the law not being a defence perhaps most simply characterises the Father’s present position.  The child’s best interests are best served by bringing the litigation to an end.  The basic principles stemming from Rice & Asplund, SPS & PLS, and Carriel & Lendrum all confirm that it is not in the best interests of the child for the litigation to be re-visited.  Moreover, the critical lack of any evidence before the Court further confirms that there has been no relevant material or significant change in circumstances that would warrant the litigation being re-opened.  Moreover, giving every allowance for a self-represented litigant, this does not give open slather either to make broad assertions without proper evidence.  Nor does it allow the Court to ignore basic principle.

3. It is for the parties, perhaps through on-going counselling/mediation, to resolve various “day to day” issues that arise in relation to the parenting of [X].  For example, one would have thought that attendance at children’s birthday parties (especially the birthdays of siblings – full or half siblings) should reasonably be accommodated.  Likewise, in this day and age, given basic health risks, the best medical evidence confirms that it is highly advisable (and therefore in a child’s best interests) to be immunised.  Not to do so puts the child, and others, at greater risk.

4. The Orders proposed by the ICL shall be made.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:     15 February 2018