Hurley and Melton

[2020] FamCA 689

FAMILY COURT OF AUSTRALIA

HURLEY & MELTON [2020] FamCA 689

FAMILY LAW – CHILDREN – where final parenting orders were made in May 2017 changing the child’s living arrangements from living with the mother to living with the father and spending supervised time with the mother – where the mother seeks orders that the child spend unsupervised day time with her – where the father asks that the court determine the Rice & Asplund question as a threshold issue – where the father’s application for summary dismissal of the mother’s Initiating Application is refused.

Family Law Act 1975 (Cth)

Bennett and Bennett (1991) FLC 92-191
CDJ & VAJ (1998) 197 CLR 172
G & G [2000] FamCA 12
Hayman & Hayman (1976) FLC 90-140
In the marriage of McEnearney (1980) FLC 90–866
Marsden & Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
Newling & Newling;  Mole (Applicant) (1987) FLC 91-856
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Ms Hurley

RESPONDENT: Mr Melton

FILE NUMBER: BRC 503 of 2013

DATE DELIVERED: 6 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 6 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The matter is listed for final hearing for three (3) days before Justice Hogan commencing at 10.00 am on 2 December 2020, at the Family Court of Australia at Brisbane.

2. All parties attend the hearing in person.

3. Pursuant to s 68L(2), the interests of the child, B, born … 2012, be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the child’s interests.

4. Forthwith upon appointment, the person arranged by Legal Aid Queensland to be the Independent Children’s Lawyer file a Notice of Address for Service.

5. Upon filing a Notice of Address for Service, the Independent Children’s Lawyer has leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

6. Within seven (7) days of being notified of the details of the Independent Children’s Lawyer, each party provide to the Independent Children’s Lawyer copies of all documents relied upon by that party in these proceedings commenced by Initiating Application filed on 7 November and as continued by the Further Amended Initiating Application filed on 21 July 2020. 

7. Pursuant to s11F of Family Law Act 1975 (Cth) the father attend an appointment with Ms KK, Family Consultant, Child Dispute Services, Brisbane Registry in November 2020 on a date and time to be advised.

8. Pursuant to s11F of Family Law Act 1975 (Cth) the mother attend an appointment with Ms KK, Family Consultant, Child Dispute Services, Brisbane Registry in November 2020 on a date and time to be advised.

9. Pursuant to s11F of Family Law Act 1975 (Cth) the father arrange for the child, B, born … 2012, to attend the appointment with Ms KK, Family Consultant, Child Dispute Services, Brisbane Registry in November 2020 on a date and time to be advised.

10. Pursuant to s 62G of the Family Law Act 1975 (Cth) Ms KK, Family Consultant, provide the Court with an updated report.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION

(A)The Court today declined to accede to Mr Melton's Application to dismiss the Further Amended Initiating Application filed 21 July 2020.

(B)Given that the matter has been listed for final hearing on 2, 3 and 4 December 2020, the Court respectfully requests that Legal Aid Queensland allocate this matter appropriate priority.

(C)Once a Notice of Address for Service is filed by the Independent Children’s Lawyer, the matter will be listed for a further case management hearing for the making of trial directions to facilitate the final hearing of this matter commencing on 2 December 2020.

(D)The Court notes that the issue to be determined in December 2020 is whether it is now in the child’s best interests to spend unsupervised time with her mother.

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 Hurley & Melton 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 BRISBANE

FILE NUMBER: BRC 503 of 2013

Ms Hurley

Applicant

And

Mr Melton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 25 May 2017, Carew J made final parenting orders in relation to B, who was born in 2012.  The orders made by Carew J were made after a total of five hearing days. 

2. The consequence for not-then-quite five year old B of the implementation of the May 2017 orders was, in summary, that she moved to live primarily with her father;  that after a one-month moratorium over her interaction with her mother (save for her mother being able to send her cards, letters and gifts once per week and on special occasions) she was to spend two hours of supervised time with her mother per fortnight, together with the telephone or other electronic means of communication once per week and the receipt of cards and gifts on special occasions.  That was to occur for a period of 12 months.

3. After the expiration of this 12-month period, B’s supervised time with her mother was increased to a duration of seven hours per fortnight, again to supplement the continuing telephone or electronic-means communication and receipt of cards or gifts on special occasions. 

4. B is now eight years of age.

5. At paragraph 331 of the Reasons for Judgment delivered by Carew J, her Honour said the following:

   While long-term supervision for such a young child is far from ideal, the child has a right to spend time with her mother if it is safe to do so.  It may be that in some years and with the assistance of Dr D, the mother is able to change her mindset and persuade a court that there has been a significant change in circumstances warranting the removal of supervision, but until such time, I consider that B would still benefit from spending some time with her mother.

The current proceedings

1. The current proceedings which I am asked to determine today commenced when the mother filed, on 7 November 2019, an Initiating Application by which she sought, by way of final parenting orders, that: for one month, B spend time with her between 9.00 am and 4.00 pm each Saturday; and thereafter, spend time with her in the manner particularised, which, ultimately, would include B spending overnight and weekend time with her mother.  It was also sought that the venue for changeover be changed.

2. It seems that, on 20 November 2019, the mother filed an Amended Initiating Application, by which she sought a final parenting order that would accord to each of B’s parents equal shared parental responsibility for the major long-term issues relating to B and, on an interim basis, sought that B spend time with her between 9.00 am and 4.00 pm each Saturday, with such time to increase over time – first to overnight time and then to weekend time, as the Court determined appropriate.

3. As a consequence of the initiation of new proceedings – these proceedings – for parenting orders in relation to B, Registrar Brooks made an order on 14 January 2020 that a Family Report be prepared.  The mother’s interim Application (contained in the Amended Initiating Application filed on 20 November 2019) was listed for an interim hearing on 4 June 2020.  Further directions were made to facilitate that.

4. As a consequence of the order made by the Registrar, Ms KK, a Family Consultant, interviewed the parents, B and Mr JJ, the mother’s partner, on 12 and 13 May.  She subsequently authored a Family Report, dated 21 May 2020.  This report was released to the parties as a consequence of an order made by the Registrar on 27 May 2020.

5. On 24 June 2020, the mother filed an Application in Case by which she sought some interim parenting orders in relation to B and her time with her daughter.  She also sought some orders that would provide for B to spend time with the maternal grandmother. 

6. Ms Hurley subsequently filed a Notice of Discontinuance on 16 July 2020, by which she indicated her intention to discontinue the Application in a Case (filed 24 June 2020) in its entirety.

7. On 4 June 2020, Senior Registrar Spink made some orders, which included the dismissal of Ms Hurley's Application for interim orders.  The Senior Registrar also ordered that Ms Hurley’s final Application that B live with her parents on an equal shared time basis be referred to the Case Management Judge for consideration of how the Application should progress, given Mr Melton’s position that it should be dismissed because, as described in the order, “the requirements of Rice & Asplund[1] have not been met”.  The Senior Registrar also referred the matter to the Case Management Judge for consideration of whether it is appropriate to appoint an Independent Children’s Lawyer.

   [1] (1979) FLC 90-725.

8. In the Reasons delivered by the Senior Registrar in support of the orders made that day, he said as follows at paragraph 12:

   In my view, having regard to the findings of Carew J and the concerns raised by the family report writer, the movement of the child’s time with the mother to occurring without supervision is not one that can be dealt with without testing of the evidence, particularly the mother’s evidence, the family report writer and perhaps Dr D, that is, in my view, it is not in the child’s best interests that the mother’s application be heard on an interim basis in accordance with the usual practice of this Court.

9. On 21 July 2020, Ms Hurley filed a Further Amended Initiating Application, by which she sought, by way of broad summary, that final orders be made to remove the imposition of supervision over her time with B and that their time together progress in the manner set out in the proposed draft consent order attached to the Further Amended Initiating Application – that is, in essence, until their time reaches a point where B spends time with her mother on three days per fortnight between 9.00 am and 5.00 pm and that the mother be permitted, in essence, to attend at B’s school and participate in activities and events in which parents are routinely able to participate. 

10. It is that Application, then, that is the subject of consideration today.

11. Mr Melton’s position remains as it was conveyed to the Senior Registrar earlier this year: that is, his position is that the evidence relied on by Ms Hurley does not contain sufficient basis to persuade the Court that there has been a sufficient or significant change in circumstances so as to warrant the Court concluding that it is in B’s best interests for there to be a revisitation of the existing parenting orders which impose supervision over her time with her mother.

12. A broad summary of the parties’ respective positions now follows.

Broad summary of the parties’ respective positions

The mother

1. Ms Hurley’s contention is, in essence, that she brought the November 2019 Application because she contends that she no longer holds the view or position that B is at risk in her father’s care.  She says, rather, that over the course of the supervised visits, she has observed B to be happy and content.  She also says that, since the May 2017 orders were made by Carew J, she has attended upon Dr D, a psychiatrist, to whom she provided a copy of the Reasons for Judgment delivered by her Honour in support of the May 2017 orders.

2. Ms Hurley has annexed one page of a copy of Dr D’s report, dated 13 October 2019.  The full report, comprising two pages, is Exhibit 1 in the proceedings before me today. 

3. Ms Hurley relies upon the contents of Dr D’s report, his assessment and expressed opinions as constituting one aspect of her case that circumstances have changed sufficiently as to warrant the Court revisiting the parenting orders which currently pertain to B.

4. In addition, she relies upon her evidence, contained within her affidavit material relied upon at this stage, of the fact that she has completed a Parenting Orders Program, and a Parenting Course.  She contends also that Mr Melton has failed to comply with the terms of the May 2017 orders in relation to facilitating B’s time and/or communication with her but contends that, rather than commencing contravention proceedings, she has sought to focus upon the future communications and relationship between them. 

5. Ms Hurley contended, in essence, that the Court would be persuaded that the following, taken together, constitute a sufficient change of circumstance so as to justify the Court embarking on a further hearing of her Application.  She submits, that the circumstances, taken together, are significant enough to persuade that it is in B’s best interests for the Court to consider the Application for changes to the May 2017 parenting order.

6. In particular, that the Family Report writer, Ms KK, in her report filed 21 May 2020, supported a change to unsupervised time and noted that little was being achieved by supervised contact.

7. Whilst that appears to have been Ms Hurley’s interpretation of paragraph 192 of Ms KK’s report, it seems to me that Ms KK expressed her opinion that she would support B’s visits shifting to unsupervised time, given that there appeared to be little that was being achieved by supervision at this stage, on the premise that the Court was positioned to determine whether there should be any change to the final orders.  It is clear, I think, that Ms KK’s opinion is expressed in such a manner as to accord appropriately to the Court responsibility for the determination of whether and if it is in B’s best interests for there to be a change to the current parenting regime, implemented by operation of the May 2017 parenting orders.

8. The mother also says that a further circumstance to be taken into account is that a significant period of time has elapsed since the May 2017 order was made, during which, on her evidence, she has made a concerted effort to move forward and maintain a relationship with B that supports her best interests.  She says that she has attended on Dr D until October 2019, when he terminated that attendance because of his view that she was no longer required to attend upon him. 

9. She relies, as I said, upon his report, dated 31 October 2019, and the contents of the same, which include his assessment that she has reflected and addressed many of the issues which, according to the Reasons of Carew J, were present during the 2017 proceedings.  He opines that she has a sensible and realistic appraisal of B’s health, amongst other things.  He also proffers opinions in relation to the issue of the continuation of supervision over B’s time with her mother. 

10. As I understood the mother’s position, she, in essence, asserts that Dr D’s evidence, if accepted in its current form, would persuade the Court that the risk identified by Carew J (as referred to in her Honour’s Reasons) is now ameliorated such that it is no longer in B’s best interests for her time with her mother to remain supervised.

11. The mother also relies upon her evidence that she has changed the nature of her employment.  She advances that the supervised time between her and B since the May 2017 order was implemented has proceeded without incident and, on occasion, has proceeded to offsite, supervised outings.  She contends that, more recently on a number of occasions, B has expressed a desire to spend more time with her. 

12. She contends that the ongoing imposition of supervision over her time with B has the consequence of, in essence, restricting or removing – to use her phrase – B’s maternal family from her life.  She relies upon her evidence that she has recently become engaged to Mr JJ, her partner, and she relies upon her assertion that the costs of the ongoing supervised visits place an undue strain upon her finances; she further contends that, as Mr Melton has failed on occasion to comply with the terms of the May 2017 order, absent further parenting orders, B’s relationship with her will, in essence, be adversely impacted into the future.

13. It is really for those reasons – which I have summarised broadly – that Ms Hurley submits the Court would be persuaded to refuse Mr Melton’s application that her Further Amended Initiating Application seeking unsupervised time parenting orders be dismissed summarily.

    The father

14. Mr Melton’s case is, in essence, simply that the evidence relied upon by Ms Hurley does not establish that there has been a sufficient change of circumstance so as to warrant the Court, acting in B’s best interests, revisiting the existing parenting arrangement.  His position remains that despite the changes to the orders sought by Ms Hurley, as reflected in the various formal documents filed by her over time, to which I have already adverted.

15. Mr Melton’s position, again summarised very broadly, is, it seems to me, simply that, in proffering to the Court the evidence that she has, Ms Hurley has done nothing more than provide - to use his term - “lip service” to the issues raised and found by Carew J in the Reasons provided in May 2017.  His case, again in broad summary, is simply that he does not accept that the mother has, in fact, changed the attitude or positions or has, in fact, addressed them but may simply be saying that she has arrived at those changes in order to facilitate and support her position and the orders that she now would seek from the Court.

The ‘rule’ in Rice & Asplund[2]

[2] (1979) FLC 90-725.

1. I should say at this point that, whilst I intend in a moment to discuss principles set out in a variety of authorities, I do not intend to read into the record the citations for those authorities or even them, but reserve to myself the right to ensure that, when the settled reasons are provided to the parties, the authorities I rely upon for the principles I am about to express will be provided in footnote form.

2. In Rice & Asplund, Evatt CJ, with whom the other members of the Court agreed, said[3]:

   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.

   [3] Ibid, 78,905 – 6.

3. In Hayman & Hayman[4]:

   These are not necessarily matters for a preliminary submission, but they are matters 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.  Once the Court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.

   [4] (1976) FLC 90-140.

1. In Poisat & Poisat[5], the Full Court said at 13:

   Whether or not the principle might properly be called a “binding rule” in the sense used by Mason and Dean JJ, for present purposes, it can be said that the rule in Rice & Asplund is of long standing, has been consistently recognised and applied both in this Court and at first instance and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.

   [5] (2014) FLC 93-597.

2. The rationales underlying the Rule, which is itself merely a manifestation of the best interests principle[6] at whatever stage of proceedings it is applied[7], have been outlined in other Full Court and first-instance decisions.  As long ago as In the Marriage of McEnearney[8], Nygh J said:[9]

   The last thing, of course, that this Court would wish to see would be a perennial football match between parents who, because the strict principles of res judicata are not applicable, might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.

   [6] See the discussion of Warnick J in SPS & PLS (2008) FLC 93 – 363.

   [7]SPS & PLS (2008) FLC 93-363, 82,451 [48].

   [8] (1980) FLC 90–866.

   [9] Ibid, 75, 499.

3. In Newling & Newling;  Mole (Applicant)[10], Nygh J[11] said:

   Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel.  What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. 

   [10] (1987) FLC 91-856.

   [11] With whom Barblett and Fogarty JJ agreed; referred to by the Full Court in Poisat & Poisat (2014) FLC 93-597.

4. In CDJ & VAJ[12], the majority of the Court remarked, albeit in the context of an appellant, appealing an order changing children’s living arrangements, seeking leave at the hearing of the appeal to tender further evidence pointing to changes in circumstances, outlook or apparent welfare, that[13]:

   So, too, the public and private interest in the finality of litigation must be given some weight, even in cases of this kind.  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. 

   [12] (1998) 197 CLR 172.

   [13] Ibid, 204 [118].

5. In G & G[14], Holden and Jerrard JJ commented that the emphasis is whether the Court is satisfied that a child’s best interests are being served by further litigation on a matter already decided upon and already the subject of court orders, whether made by consent or after a contested hearing. 

   [14] [2000] FamCA 12.

6. Further authority to which I have had regard also, relevantly, establishes the following:

   a)the best interests issue arises because, given that there are so many changes in the lives of families, those changed circumstances which will permissibly allow relitigation of a decision must be circumscribed,  otherwise there would, in some cases, exist the “spectre of endless litigation”, which ends only when the child attains 18 years of age and the Court no longer has jurisdiction[15]; and

   b)the application of the rule is closely connected with the nature and degree of change sought to the earlier order[16]; and

   c)the rule is founded on the idea that continuous litigation over a child is not generally in that child’s interests, it being usually hoped that the determination of a controversy concerning a child by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on parents and children[17]; and

   d)the Court must determine whether the parties seeking to vary or discharge an existing order has established there is a sufficient change of circumstances so as to justify embarking on a further hearing of the application[18].

   [15]Marsden & Winch (2009) 42 Fam LR 1, 19 [48].

   [16]SPS & PLS (2008) FLC 93-363, 82,451 [48]; adopted in DL & W (2012) FLC 93-496, 86,322 [70].

   [17]Marsden & Winch (2009) 42 Fam LR 1, 19 [49].

   [18] Miller & Harrington (2008) FLC 93-383, 82,857 [81].

7. It is clear that, in discharging this obligation, the Court is bound to take into account the best-interests considerations and to apply the relevant legislative requirements[19].  It is also clear that determination in any particular case about whether the Court is willing to embark upon another hearing involving the parenting arrangements for a child needs to be made having regard to matters which include:  the past circumstances, including the Reasons for the decision and the evidence upon which it was based; whether there is a likelihood of orders being varied in a significant way as a result of a new hearing; and, if there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child caused by the litigation itself[20].

   [19] Ibid, 82,856 [72].

   [20]Marsden & Winch (2009) 42 Fam LR 1, 19 [50].

8. Authority also seems to establish that it is appropriate to adopt a two-step process and that the Court is required to consider whether a prima facie case of changed circumstances has been established and to consider whether such case represents or constitutes a sufficient change of circumstances so as to justify embarking on a hearing[21].

   [21] Ibid, 21 [58].

Should the ‘rule’ be applied on a preliminary basis?

1. There remains within the Court a discretion about whether the “rule” in Rice & Asplund[22] is applied on a preliminary basis.  In Poisat & Poisat[23], the Full Court said at paragraph 18:

   In Miller & Harrington, this Court said at paragraph 72:

   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 & Asplund is considered at a preliminary stage.  This is because, as we seek to emphasise, at whatever stage the rule in Rice & Asplund is applied, the Court is bound to take into account best-interests considerations and also because specific requirements, including legislative requirements, apply.

   [22] (1979) FLC 90-725.

   [23] (2014) FLC 93-597.

2. As the application of the rule in Rice & Asplund[24] occurs within proceedings to which the provisions of Division 12A of Part 7 of the Family Law Act 1975 (Cth) applies, then it seems to me that I am bound to apply the provisions of that Division, included within which are the mandatory requirements that I decide which of the issues in the proceedings require full investigation; which may be disposed of summarily;[25] and which require me to deal with as many aspects of the matter as possible on a single occasion[26].

   [24] (1979) FLC 90-725.

   [25] s 69ZQ(1)(a) of the Act.

   [26] s 69ZQ(1)(g) of the Act.

3. It also seems to me that, as a consequence of the provisions of Division 12A of Part 7 of the Act, the Court must consider the needs of B: the impact that the conduct of the proceedings may have on her in determining the conduct of the proceedings.[27] I have taken those matters into account in arriving at my determination.

   [27] s 68ZN(3) of the Act.

4. I have also take into account and had regard to those matters which I consider to be encompassed by or within s 68ZN(3) of the Act and which I summarise as being the importance of there being an end to litigation and the implementation of those aspects of principle which I have already outlined. 

5. In the present case, there is, in my view, sufficient evidence adduced by Ms Hurley, if it were accepted, to establish that she has, to some degree at least, addressed the underlying issues identified by Carew J in the Reasons for Judgment her Honour delivered in May 2017. 

6. However, as has been said elsewhere, the qualitative question of whether these asserted changes are sufficient to persuade the Court that it is now in B’s best interests to remove supervision from her time with her mother is difficult to answer at this preliminary stage and on a preliminary basis – especially where there remain a number of facts in dispute as between the parents[28].

   [28]Miller and Harrington (2008) FLC 93-383, 82,857 [82].

7. As I have already adverted to, summarised very broadly, Mr Melton simply does not trust or accept Ms Hurley’s assertions about her change of attitude toward him and the allegations previously prosecuted before Carew J.  In summary, I apprehend his case to include that she is paying no more than “lip service” to the proposition, so as to advance her position rather than her evidence being demonstrative of real change. 

8. Of course, Ms Hurley’s position is the contrary.  She advances in her submission that what she has sworn to in her affidavit and the contents of Dr D’s report will establish that the change is real, and it is not something about which she has simply provided “lip service”. 

9. Those matters are, it seems to me, only capable of resolution through a trial process at which Ms Hurley is cross-examined – perhaps, Dr D is cross-examined – so as to determine whether, in fact, the changes about which Ms Hurley gives evidence have, in fact, occurred or whether that is not the case. 

10. Given that I consider that the most significant of the bases on which Carew J determined it to be in B’s best interests to impose supervision over her time with her mother include the assessment of Ms Hurley’s attitudes and asserted beliefs and that B was at an unacceptable risk of harm if exposed to the same and would in the future be at an unacceptable risk of harm if exposed to the same, I consider in the exercise of discretion[29] that I am unable to apply the rule in Rice & Asplund[30] at this preliminary stage of the current proceedings. 

    [29]Bennett and Bennett (1991) FLC 92-191, 78,262.

    [30] (1979) FLC 90-725.

11. I arrive at this conclusion despite a full appreciation of the potential impact on B of again having her parents engage in litigation about those parenting orders which are in her best interests.

12. As I have already conveyed to Ms Hurley during the course of taking her submissions, I do not accept the contention that the removal of supervision over her time with B – as imposed by the orders made by Carew J – is a small change. 

13. The removal of supervision, in my view, would amount to a significant change in the current parenting regime, which operates to regulate B’s care arrangements.

14. I consider that the pervasive issue in determining Ms Hurley’s application to vary the May 2017 parenting orders to allow B to spend unsupervised time with her is really a determination of whether she has – in fact as opposed to “in assertion” or, as Mr Melton would phrase it, by “lip service” – undergone the changes in attitude she professes. 

15. As I have said, it seems to me that the only way in which this asserted change can properly be assessed is to permit Ms Hurley’s application by way of Further Amended Initiating Application filed 21 July 2020 to proceed to a final hearing at which, as is the usual case, witnesses called by each of the parents can be subjected to cross-examination.

16. In order to minimise, to the best of my ability, the potential adverse impact on B of the existence of this current litigation, I intend to expedite the hearing of the same, I intend to set for final hearing before myself the issue of whether it is now in B’s best interests that her time with her mother is unsupervised.  Those hearing dates will be in December of this year – more particularly, for three days on 2, 3 and 4 December 2020.  I do so noting the relief sought by Ms Hurley in the Further Amended Initiating Application she filed on 21 July 2020.

17. It is for these Reasons, then, delivered orally today in disposing of the matter of Mr Melton’s application for the dismissal of the current parenting proceedings that I have determined not to take that course. Consequently, I decline to make an order dismissing the Further Amended Initiating Application filed 20 July 2020. 

18. Having arrived at this decision, I have reflected and concluded that it is in B’s best interests in these proceedings that she be independently represented by a lawyer, and, as I am empowered to do on my own initiative, I intend, pursuant to s 68L of the Act, to make an order appointing an Independent Children’s Lawyer.

19. In addition, I intend to make orders for the preparation by Ms KK of an updated Family Report.  I do so fully cognisant of the fact that Ms KK interviewed B and her parents in May 2020 for the preparation of the May 2020 report.  I am also cognisant of the desirability of avoiding B being consistently and repeatedly interviewed for litigation purposes – for that reason, the orders that I will make will afford to the parties the opportunity to be heard at a later date about whether, in fact, a further updated report should be prepared.  The purpose for making the orders I intend to make at this stage for the preparation of a report is simply to ensure that, if the parties agree that a report would assist the Court (given that interviews would occur some six months after the May 2020 interviews) then Ms KK will be in a position today to mark out time in her calendar to ensure that such interviews occur in November of this year and a report is prepared prior to the December 2020 final hearing dates.

20. It is my intention to make orders to ensure that the Independent Children’s Lawyer, once appointed to this proceeding by Legal Aid Queensland as a consequence of the order to be made today, will be able to be heard further in relation to the issue of the preparation of an updated report by Ms KK and also in relation to trial directions. 

21. It is my intention that, once the Notice of Address for Service is filed by the Independent Children’s Lawyer, this matter is brought back before me for a case-management appearance so that I can make directions for trial to ensure that the matter proceeds to its hearing on the December dates I have allocated to it.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 6 August 2020.

Associate:     

Date:              6 August 2020