JOHNS & JOHNS

[2020] FamCA 31

FAMILY COURT OF AUSTRALIA

JOHNS & JOHNS [2020] FamCA 31

FAMILY LAW – JURISDICTION – Whether there is a significant change in circumstances to warrant a fresh hearing in respect of parenting arrangements – Consideration and application of the rule derived from Rice & Asplund (1979) FLC 90-725 – Best interests of the child – Where the applicant seeks to reverse existing parenting Orders – Where the Court is not satisfied there has been a sufficient change in the child’s circumstances that it would be in her best interests for the question of her parenting arrangements to be reconsidered by the Court.

Johns & Johns [2012] FamCA 1060
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Prewett & Mann [2013] FamCAFC 130
In the marriage ofRice & Asplund (1979) FLC 90-725

APPLICANT: Ms Johns

RESPONDENT: Mr Johns

FILE NUMBER: SYC 6836 of 2010

DATE DELIVERED: 24 January 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 9 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self represented

COUNSEL FOR THE RESPONDENT: Mr Othen

Orders

1. That the mother’s Initiating Application filed 19 December 2018 be dismissed.

2. The father file and serve any affidavit and written submissions with respect to his application for costs within 28 days from this date and the mother file and serve any affidavit and submissions in response thereto within a further 14 days thereafter.

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 Johns & Johns 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 PARRAMATTA

FILE NUMBER: SYC 6836 of 2010

Ms Johns

Applicant

And

Mr Johns

Respondent

REASONS FOR JUDGMENT

Introduction

1. This application concerns B aged 12, the only child of the parties (“the child”). Final parenting orders were made in this Court on 12 December 2012 (“the December 2012 orders”) following a six day hearing. These orders provide in summary that the child live with each parent in a “week about” equal shared care arrangement. The December 2012 orders also deal with numerous other parenting issues including the child’s first name. With the consent of the parties an order was also made that they have equal shared parental responsibility for the child.

2. In December 2018 the mother filed an Initiating Application seeking to revisit the final parenting orders. In her subsequent Further Amended Initiating Application filed 13 May 2019 she seeks orders which include that she have sole parental responsibility for the child, that the child live with her, spend time with the father every second weekend and one weekday night in the “off” week and half of each school holiday period and that she be permitted to change the child’s first name.

3. The father in response seeks orders that the mother’s application to revisit the orders be dismissed and that the mother pay his costs.

4. For reasons that will be explained I am not satisfied that there has been a sufficient change in the child’s circumstances that it would be in her best interests for the question of her parenting arrangements to be reconsidered by the Court.

Background

1. The mother who is now 46 and the father who is now 44 married in 2007. The child who is now 12 was born later in the same year.

2. The father has a child of a previous relationship, Mr F (“the half-brother”) who was born in 1997. This child lived with the parties for the entire period that their relationship was intact and continued to live with the father following the breakdown of the parties’ relationship.

3. The mother alleged that in early October 2010 the child, who was then three years old, disclosed to her that the half-brother had sexually abused her. The mother reported the child’s alleged disclosures to the Department then known as Family and Community Services (“the Department”).

4. On 21 October 2010, following an argument between the parties, the mother left the family home taking the child with her. The next day, the mother was interviewed by police and subsequently an Apprehended Domestic Violence Order (“ADVO”) was issued for her protection against the father. It appears that the mother and child may have then returned to the family home.

5. The mother commenced proceedings on 28 October 2010 in relation to parenting matters only in the Federal Magistrates Court as it was then known.

6. The mother moved out of the family home with the child on 2 November 2010 on a final basis. She alleged that in the course of the move the father intimidated her and she made a complaint to the police about the father’s conduct.

7. The notification made to the Department was assessed and considered suitable for investigation by the Joint Investigation Response Team (“JIRT”)[1] as this team was then known in November 2010. In the course of that investigation the parties and the child’s half-brother were interviewed.

   [1] The Joint Investigation Response Teams were made up of officers from the Departments and police and investigated allegations of serious child abuse.

8. The parties were subsequently advised about the outcome of the JIRT investigation. The parties were apparently told that it could not be proven that anything happened or did not happen and were encouraged to remain vigilant with the children and not leave the child and her half-brother unsupervised together.

9. In a document titled “Assessment Record” dated 15 December 2010 the Department records that it was considered unlikely that the half-brother had harmed the child. In the same document, the mother is assessed to be a “person causing harm” to the child and it is recorded that this concern had been made known to the mother in prior interviews. The risk was expressed as a substantiated “risk of psychological harm” and it was considered that as the child was in the primary care of her mother “it is a highly probable that the risk of harm will continue as [the mother] has limited insight into how her actions and comments affect the children”.

10. On 15 December 2010 various orders were made in the Federal Magistrates Court with the consent of the parties including that the child spend time with the father each week for two full days and overnight, that the father be present at all times the child and her half-brother were together and that the child sleep in the same room as her father.

11. In January 2011 the father filed an application seeking interim orders that the child live with him. In March 2011, orders were made with the consent of the parties that provided for the child to spend time with the father each alternate week from Thursday morning to Friday afternoon and each alternate Sunday. The other interim order remained in place concerning supervision and the sleeping arrangements for the child. Orders were also made restraining the parties from providing any information to any person in relation to the JIRT investigations and restraining the mother from recording the child and father.

12. The mother alleged that on a number of separate occasions from April 2011 to June 2011 the child disclosed to her that the father had sexually abused her. A friend of the mother’s also alleged that while babysitting the child in June 2011 the child disclosed to her that she had been sexually abused by the father. The child was again interviewed by JIRT regarding these allegations but they also were not substantiated. The mother refused to facilitate the child’s time with her father after the allegations were made despite the findings of JIRT.

13. In June 2011 the police withdrew the application for an ADVO made against the father for the protection of the mother.

14. A third JIRT investigation occurred following a notification to the Department by a doctor who had previously treated the child. After interviewing the child JIRT concluded that the disclosures made by the child arose from the father’s toilet training rather than a sexual assault and the investigation was then suspended.

15. On 21 September 2011, orders were made with the consent of the parties restraining the mother from causing the child to be assessed except as agreed by the father and the Independent Children’s Lawyer (“ICL”) or as ordered by the Court.

16. The proceedings were listed for final hearing in the Federal Circuit Court in March 2012 but on that date were transferred to the Family Court due to their complexity.

17. The final hearing proceeded over six days in November 2012.

18. The December 2012 orders brought about a parenting regime in which the child lives with each parent “week about”, that is for blocks of one week alternating between the parents. The orders also provide for the child to spend half of each school holidays with each parent and that she be known by a particular first name. Other orders and restraints were made relating to a range of other parenting matters to which I will return where relevant.  

19. With the consent of the parties, an order was made that the parties have equal shared parental responsibility for the child.

20. For the ensuing six years it appears that the child’s living arrangements were governed by these orders without any significant incident. Although the mother makes various complaints about the father’s conduct there is no history of any contravention applications having been filed.

21. On 19 December 2018 the mother initiated proceedings in this Court seeking to revisit the child’s parenting arrangements. In this application and her amended application she seeks orders that would see a significant change to the child’s arrangements. The mother proposes that she have sole parental responsibility for the child, that the child live with her, that she have permission to change the child’s name, that the child be “granted access to see her father and half-brother … upon the child’s request or upon the father or brother’s written request” and other orders.

22. On 25 January 2019 the father filed a Response seeking that the mother’s application be dismissed and that the mother pay his costs in the proceedings.

23. The hearing on 9 September 2019 was concerned only with the question of whether it is in the best interests of the child for her parenting arrangements to be revisited.  

The “Rule” in Rice & Asplund[2]

[2]In the marriage ofRice & Asplund (1979) FLC 90-725

1. As is clear from recent Full Court decisions, such as Prewett & Mann[3] (27 August 2013), there is no doubt that the principles established in Rice & Asplund (supra) and the subsequent line of authority apply to proceedings such as these where a party is seeking to have final parenting orders reconsidered.

   [3] [2013] FamCAFC 130

2. The so-called “rule in Rice & Asplund” arises from remarks made by Evatt CJ in that case at [78,905-06]:

   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 in an ever present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant … 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 …

   Evatt CJ continued:

   These are not necessarily matters for a 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.

3. As further explained in Prewett & Mann (supra) at [9]:

   The rule is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).

4. The way in which the rule is to be applied had also been set out by the Full Court in Marsden & Winch[4], where it was said at [50]:

   … 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.

   [4] [2009] FamCAFC 152

5. As the Full Court said in Miller & Harrington[5], the applicant is required to establish a prima facie case of changed circumstances.

   [5] (2008) FLC 93-383

The past circumstances- reasons for previous decision and evidence

1. The previous parenting proceedings were determined when the child was five years old. The dispute between the parties arose from their disagreement about the child’s future parenting arrangements following the breakdown of their three and half year marriage when the child was three after the mother alleged that the child made a complaint that her half-brother aged about 12 had sexually abused the child.

2. The trial judge in the previous proceedings identified the issues requiring the Court’s determination[6] at [33] as consisting of the following:

   [6]Johns & Johns [2012] FamCA 1060

   ·The assessment of the allegations of sexual abuse against the father.

   ·The assessment of the allegations of sexual abuse against [the half-brother].

   ·[The child’s] living arrangements – on the mother’s application, when should the week about arrangement commence? On the father’s application, should she live with him for nine nights each fortnight?

   ·Supervision of the child and the half-brother and the mother’s application that a movement sensor alarm be placed on [the child]’s bedroom door.

   ·Where the child will start school in 2013.

   ·Applications by each party in relation babysitters employed by the other.

   ·The mother’s allegations of excessive consumption of alcohol and domestic violence against the father.

   ·The mother’s application to have the child’s name changed to include an additional first name

   ·Who is to hold the child’s passport?

   ·Whether the family should engage in family therapy and whether the mother’s weekly attendance on her own therapist should be a condition of any time that the child lives with her mother.

   ·Where the child’s dog should live.

   ·In submissions it became clear that there was a serious challenge to the mother’s credit both by the ICL and by the father.

3. In relation to the mother’s credit, counsel for the ICL and the father concentrated on her evidence concerning the Department and JIRT investigations, particularly that a departmental officer had deliberately falsified records of conversation with the parties and the mother and had colluded with the father. The trial judge concluded that there was no cogent reason put forward by the mother as to why the departmental officer would falsify her notes, but did not make a finding that the mother deliberately and knowingly gave false evidence. Her Honour observed that “It is more likely that [the mother’s] heightened anxiety, particularly about sexual abuse, combined with her outrage at being labelled a ‘person causing harm’ by the Department, have distorted her recollection.”

4. The trial judge further said:

   If the mother’s evidence in relation to her interaction with [the departmental officer] cannot be accepted, then her evidence about other matters, particularly where it relates to sexual abuse, should be treated with extreme caution where it is contested, in the absence of independent support.

5. In relation to the sexual abuse allegations against the half-brother, Her Honour found that absent any eye witness evidence, as was conceded by the father, it can never be possible to make an absolute finding that the half-brother did not improperly touch the child. Her Honour considered that even though the half-brother’s firm denials of improperly touching the child were not able to be tested under cross examination given his age, he was interviewed by experienced police and care workers and the expert appointed in the proceedings. The Department did not substantiate the allegation of sexual abuse and assessed the probability of harm by the half-brother to the child as “unlikely”. The trial judge also considered it relevant that it was the mother’s uncorroborated evidence that the child made the disclosure, which given her findings as to unreliability must be “treated with extreme caution.” 

6. Her Honour determined that there was no unacceptable risk of harm while the child is in the father’s care related to the half-brother.

7. The trial judge then turned to the sexual abuse allegations made by the mother against the father.  Although at final hearing it was the mother’s evidence that she had no concern for the child on this basis she had previously maintained concerns about the father up until at least March 2012 being the commencement of hearing before the Federal Magistrate.  The mother proffered no explanation as to her change in position a short time later.  In these circumstances Her Honour considered it necessary to conduct some assessment of the allegation in the context of considering the child’s best interests.  

8. In her first report to the Court, the expert child and adolescent psychiatrist (“the expert”) explored the weaknesses of her mother’s allegations and possible explanations for the allegations. 

9. The expert concluded:

   …there is no evidence to suggest that the father has the boundary, impulse control, mentalisation and empathy failures which would allow him to sexually or emotionally abuse [the child] or to be grossly neglectful of her welfare.

10. Her Honour accepted the opinion of the expert in the proceedings that the child was not at risk in her father’s care.

11. The trial judge in the earlier proceedings also considered the mother’s allegation of excessive alcohol use and domestic violence against the father. Given Her Honour’s previous findings regarding the unreliability of the mother’s evidence, she considered it necessary to turn to extrinsic material to determine whether there was any substance to these allegations.  There was no independent evidence in those proceedings of the father drinking to excess. Under cross examination, the mother and child’s family doctor said that the mother had not complained of any violence between she and the father and neither the doctor’s report nor his notes referred to any complaints of overuse of alcohol.

12. File notes taken by a child protection caseworker record that when asked about whether she had ever experienced domestic violence in her relationship with the father, the mother confirmed that she had no fears in this regard. Somewhat inconsistently however it is later recorded in the caseworker’s notes that the mother reported that even though the father did not hit her she was scared that he would.

1. Neither of the two reports prepared by the mother’s therapist mention the mother complaining of violence perpetrated by the father or excessive use of alcohol.  Having regard to the extrinsic evidence, Her Honour found that was not established that the father used alcohol to excess or that he had been violent towards the mother as she alleged.

2. There was no dispute between the parties that they should have equal shared parental responsibility for the child. There was also no dispute that the child should ultimately spend at least half her time in the father’s care.  The dispute between the parties so far as the mother was concerned related to when the equal shared time arrangement should commence while the father’s proposal was that the child should in fact spend more than half her time with him.

3. In her first report the expert recommended that the child continue to spend significant time each week with both parents with the aim that the week about arrangement should commence when she turned seven. The expert did not support the father’s proposal that the child spend nine nights a fortnight with him, saying that this would be a dramatic change that would make the child and mother anxious. 

4. In her second report, the expert had modified her position and recommended that the child immediately commence living in a shared care arrangement as soon as she turned five and before she commenced school.

5. The expert was of the view that the mother clearly had unresolved anxiety about the child’s safety in her father’s care which she was unable to contain at the hearing and continued to demonstrate a lack of self-reflection on how she contributes to the ongoing hostility between herself and the father. The expert referred in particular to text message correspondence that had been annexed by the mother to her most recent affidavit which illustrated the mother’s “propensity to perceive [the father] as ‘making trouble’ if he questions her actions, as well as her sensitivity to perceived criticism and her tendency to react with anger by attack.” In this context, the expert expressed concern about the mother’s “capacity to escalate difficult situations into more than they need to be” creating a drama rather than settling difficulties.

6. The trial judge extracted the expert’s evidence in relation to the foregoing matters extensively in her reasons and accepted the opinion that a week about arrangement would be necessary to allow the child to have the opportunity, independently of her mother’s anxieties, to establish a relationship with the father and the half-brother.

7. It is clear from the Reasons for Judgment in the previous proceedings that the expert did not base her rejection of the father’s proposal that he assume the majority care of the child on any assessment that he posed risk to the child. It is also apparent from the extracts set out in Her Honour’s Reasons that the greatest concern for the child was the mother’s anxiety and mistrust of the father becoming uncontained which could lead to significant damage being done to the child’s development “through further disruption of significant relationships and should she develop her mother’s mindset about these issues.”

8. Her Honour also considered the mother’s proposal that all time between the child and her half-brother be supervised until the child turned 10 years old, and that an alarm be installed in the child’s room.  Her Honour found that if the child was at such risk of harm in her father’s household that an alarm would be necessary and should be court mandated, then she should not be spending time unsupervised in that environment.  The trial judge found that the child was not at risk of harm in her father’s household either from her father or half-brother and did not make an order that an alarm be maintained but opined that if the father was of the view that maintaining the alarm would provide protection for the child and the half-brother from the possibility of further allegations that he could maintain such an alarm. 

9. The expert considered that the child’s time with her half-brother did not need to be supervised but for her half-brother’s protection it would be advisable to have another adult in the house if the father was not present.  Her Honour made an order that the father have an adult babysitter available if he is not at home with the children until the child turns 10 years old.

10. Her Honour also considered the mother’s application in relation to the child’s first name. Her Honour found that although it may have been the intention of the parties to refer to the child in the form the mother sought when she was younger, that intention did not appear to have been carried out in her lifetime. Her Honour was satisfied having regard to various documents containing the child’s name, the way in which the child was referred to by several of the mother’s witnesses and the evidence of the way the child herself writes her name, that the child identifies herself as the name used by the father and did not make the orders sought by the mother for that to be changed.

Circumstances Following the First Hearing

1. It is the mother’s case that the following significant changes in circumstances have occurred since the earlier proceedings.

   ·The child has been exposed to family violence including verbal denigration of the mother and been subjected to psychological abuse in the father’s care

   ·The father has impeded the child receiving proper medical and psychological care and neglected her in other ways which has caused her harm

   ·The father refuses to engage properly with the mother in the exercise of their joint parental responsibility

2. An examination of the mother’s affidavit reveals that most of the allegations of the father’s abusive conduct towards the child or to which the child is said to have been exposed depend upon complaints the child is said to have made to the mother herself.

3. In the course of submissions the mother was asked to identify the paragraphs in her affidavit relating to her allegations of the father perpetrating family violence or abuse against the child or to which the child was said to have been exposed. In my view the main events or incidents relied upon in this regard are extremely trivial and could not amount to family violence even if accepted in their entirety. For example, under a heading “[The father’s] bullying of [the child] and undue punishments” the mother asserts that the child reported to her that the father had screamed at her for walking some of the way in her cross country race and told the child that she “didn’t even try”. The mother also complains that the father enforces “unduly hard” punishments upon the child and in support of this assertion deposes to an occasion where the father took away the child’s necklace and “cuddle toys” after she had been caught stealing from the father’s partner. The complaints allegedly made by the child about the father’s conduct in my view are typical of ordinary day to day and relatively minor interactions often encountered in the parenting of a pre-adolescent child.

4. The second alleged change in circumstances which receives particular attention in the mother’s affidavit is her complaint that the father allegedly impeded the child receiving proper medical care and psychological care to her detriment.

5. It is the mother’s case that since the December 2012 orders the father has not met the child’s emotional needs in order to minimise her anxiety. She makes a litany of complaints about a whole range of the father’s parenting practices which are clearly different to her own and the tenor of her affidavit is that the father’s parenting (especially where it differs from her own) has caused the child to suffer depression and/ or anxiety.

6. It is also a clear theme in the mother’s affidavit that she informs the father when she feels his parenting style is inappropriate and that his repeated requests that he does not want her “parenting input” is itself objectionable.

7. The mother sets out in her affidavit a range of the child’s concerns such as bullying, difficulties in establishing a relationship with the father’s new wife and negative self-image and some associated physical issues particularly in relation to the child’s bladder which appears to be anxiety related.

8. Although complaining about the father’s lack of involvement in relation to organising psychological support for the child, the mother’s affidavit indicates that the father had recognised concerns arising from these matters and at one stage made arrangements for the child to see a counsellor. The mother’s complaint then shifts to a suspicion about the father’s “sudden interest” in the child’s welfare and selection of a counsellor without consulting her first. The mother also deposes to considering it important that the child would “have a counsellor who would not be swayed by the Reasons for Judgment”. The mother’s affidavit also reveals that although there continued to be some disagreement between the parties about an appropriate counsellor the issue was resolved within a couple of months and the child thereafter received appropriate counselling.

9. The mother also raises in her affidavit a large number of complaints about the father repeatedly placing the child at risk through his behaviour, some of which she contended in the course of oral submissions amounted to the father placing the child’s life at risk. These complaints include the father having the child on his motorbike as a passenger allegedly without appropriate attire, leaving the child and a friend alone at a beach and permitting the child to belay for him on his sailing boat without appropriate safety equipment.

10. The father takes issue in his affidavit with each of the allegations that he placed the child at physical risk and provides an alternate account of each event. It is submitted on behalf of the father that in any event, none of these matters could amount to a significant change in the child’s circumstances that would justify revisiting the parenting orders as even the mother herself does not contend that they amount to an unacceptable risk of harm in the father’s care as she proposes that the child spend substantial and significant time with him. It is the father’s contention that each of the matters, in a similar vein to the complaints about medical care and psychological care, are simply differences between the parents concerning day to day parenting attitudes and parenting style.

11. The mother also appears to raise the spectre of the father’s inappropriate conduct of a sexual nature when she complains that he exposed the child to “his improper conduct” such as having a woman in her underwear in his bedroom and failing to install a “parental app” on the child’s IPad which resulted in pornographic images appearing on the child’s IPad. It is clear from the interchange of email messages between the parents annexed to the mother’s affidavit (which are consistent with the father’s affidavit) that there was a dispute between the parents in relation to the particular internet filter or block that each was using in their respective households, and this matter was ultimately resolved. Once again the matters of complaint made by the mother do not reach the level of an allegation of unacceptable risk in the father’s home and may in my view be more appropriately described as a difference of opinion in relation to a day to day parenting practices.

12. One of the mother’s other contentions that she says justifies a revisiting of the parenting arrangements for the child is that the father refuses to “healthily engage” with her about a range of matters concerning the child including her medical needs, schooling and extra-curricular activities.

13. So far as appropriate medical attention for the child is concerned, the mother’s complaints appear to relate to a difference in opinion as to when it is appropriate to present the child to a doctor rather than to decisions in relation to a major medical matter. While the issue of the child’s schooling and particularly her attendance at high school did involve some negotiation and differences in attitude between the parents, the matter was in fact resolved satisfactorily between them.

14. Prior to hearing the parties had also reached agreement about their respective liability for the payment of school fees and both parties had already paid an instalment of school fees pursuant to this agreement. Despite this matter having already been resolved, the mother still relied upon this issue as one of the reasons to revisit the parenting orders and to seek a specific order in relation to the payment of school fees.

15. Overall, it is the father’s position that there is no change in the child’s circumstances that would indicate it is in the child’s best interests to return to litigation concerning her parenting arrangement. He contends that the child has lived in a settled equal time arrangement between the households of himself and the mother for seven years. Although he readily concedes that he and the mother have continued to have a different approach to some day to day parenting matters from time to time they have managed to resolve those differences. He attaches weight to the fact that the December 2012 orders have been adhered to, that there have been no contraventions and the parties have been able to ensure that the child experiences an appropriate and stable living arrangement that best meets her needs.

Is there a likelihood of orders being varied in significant way as a result of a new hearing?

1. In my view there is little likelihood of the orders that were made in December 2012 being varied in the significant way as the mother seeks for the following reasons.

2. First, the father takes issue with the mother’s version of events relating to many of the matters which she says found her contention as to a significant change such that the current parenting arrangement does not best meet the needs of the child. In this regard, I attach weight to the fact that many of the mother’s allegations rely upon reports about the father’s conduct that she maintains have been given to her by the child and are otherwise not supported by other evidence.

3. Unfortunately the tenor of the mother’s affidavit evidence appears to indicate that she continues to display many of the features that caused the expert to have concern about her care of the child.  These matters include the mother’s unresolved anxiety about the child’s safety in the father’s care, her inability to contain and process her own unpleasant feelings about such matters, a continuation of her inability to reflect upon her own contribution to the difficulties in communication between herself and the father, her propensity to perceive the father as “making trouble” when they have a disagreement about parenting style and the mother’s capacity to create a drama and escalate difficult situations. Each of these matters may affect the reliability of the mother’s evidence and more significantly her perception of risk said to be posed by the father.

4. Further, even on the mother’s own case, none of the alleged shortcomings in the father’s parenting capacity or his behaviour raise the suggestion that he poses an unacceptable risk of harm for the child or indeed raise any risk of harm if the father’s evidence is preferred over that of the mother’s.

5. Although the parties had agreed in the previous proceedings that the child should ultimately spend at least equal time in each parent’s care the mother had been seeking a much slower transition to that end point. It is clear from Her Honour’s Reasons for Judgment that she accepted the evidence of the expert that it was appropriate for an equal time regime to be implemented immediately and on this basis such orders were made. As the expert had changed her opinion and recommended an immediate implementation of an equal care regime due to concerning features of the mother’s behaviours and patterns of thinking and it appears that none of those behaviours or thinking have changed, it is in my view highly unlikely that the change to the parenting arrangements as proposed by the mother would be found to be in the child’s best interests.

6. The mother also seeks an order that she be permitted to change the child’s first name. This was a live issue in the previous proceedings and was determined by the trial judge for the detailed reasons given. The mother asserts that since the making of the final orders the child has experienced confusion as to her true birth name and identity. The mother deposes to a number of occasions where the parties have been in dispute as to the child’s first name demonstrating that the mother herself has had difficulties complying with that final order. On the evidence available I consider it unlikely that the Court would consider it to be in the best interests of the child that an order be made changing the trial judge’s decision as to the child’s name. Nonetheless the child is at liberty to adopt a “pet name” for herself if that is what she wishes and such does not require an order of the Court.

7. In addition to seeking to revisit the previous orders for parental responsibility, where the child shall live, the child’s time with the other parent and the child’s name the mother also seeks some quite restrictive, specific orders such as that the parents be required to live within 15 kilometres of the child’s school. The mother provides no evidence as to why such an order in in the child’s best interests and is highly unlikely in my view to be made.

8. The father does not seek any change in the child’s parenting arrangements and in particular does not propose that he become the child’s primary carer. In my view it is likely that his position would be accepted by a court if there were to be further litigation. In particular I am of the view on the evidence available that a court would find, as he contends, that although there have been some difficulties over the years having regard to the different attitudes and parenting styles of the parties, in general the orders governing the child’s parenting arrangement have worked well and are consistent with the best interests of the child.

The potential detriment to the child caused by the litigation itself

1. As discussed I am required to weigh the nature of the likely changes against the potential detriment to the child caused by the litigation itself. This relates to the notion that continuous litigation over the child is generally not in her interest. The father contends that the mother’s evidence fails to establish a change of circumstances sufficient to justify such an intrusion in the child’s life and relationships as is entailed in family law litigation and the high risk of psychological harm arising from the litigation process itself.

2. The father submits that the impact of the first parenting proceedings where the child, only of preschool age, was heavily enmeshed in the proceedings cannot be understated. He submits that the impact of further litigation on the child must be magnified given that on both parties’ evidence the child now suffers from anxiety. 

3. The father also contends that the mother has already demonstrated how intrusive further proceedings would be for the child by adducing evidence of extracts from the child’s diary to support her case. I agree with the submission that such behaviour demonstrates an egregious lack of insight into the impacts of her actions on the child.

4. As stated, in my view it is highly unlikely that the general structure of the child’s parenting arrangement would be changed even if revisited. So far as some of the other less significant and additional orders sought by the mother are concerned, I attach weight to the paucity of evidence adduced as to the change in the child’s circumstances. Further given the undisputed evidence of the mental health difficulties experienced by the child, I am easily satisfied that the potential detriment to the child from further litigation outweighs any possible minor changes to the parenting arrangements that may be made if the proceedings were to be reopened.

Costs

1. The father seeks an order that the mother pay his costs of and incidental to the proceedings in the lump sum amount of $11,715. He annexes his invoices from Counsel to support the order sought.

2. I indicated at the day of hearing that I would deal with the issue of costs after I had delivered judgment and informed the parties that I would provide a timetable for the filing of submissions as to costs. Orders will be made to such an effect.

3. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 January 2020.

Associate: 

Date:  24 January 2020