Keats & Halloran - [2022] FedCFamC2F 1724

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Keats & Halloran [2022] FedCFamC2F 1724

File number(s): CAC 2603 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 15 December 2022

Catchwords: FAMILY LAW – Parenting – Application to re-open proceedings following final consent Orders being made in 2018 – Consideration of Rice v Asplund principles – no sufficient change in circumstances to qualify re-opening proceedings – re-commencing litigation not in the best interests of the children – Application dismissed with an Order for costs in favour of the Father – Potential conflict of interest.

Legislation:
Evidence Act 1995 (Cth) s. 79

Family Law Act 1975 (Cth)

Cases cited:
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Banham v Banham (2021) 64 Fam LR 361

Birkett & Birkett [2017] FCCA 2503

Carriel v Lendrum (2015) 53 Fam LR 157

Charisteas & Charisteas [2022] FedCFamC1A 160

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641

Honeysett v The Queen (2014) 253 CLR 122

Jacobs (a Pseudonym) v The Queen [2019] VSCA 285

Jones Dunkel (1959) 101 CLR 298

Marsden v Winch (2010) 42 Fam LR 1

Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654

Mahoney & Dieter [2020] FamCAFC 88

Poisat & Poisat (2014) FLC 93-597

Porter v Dyer (2022) 402 ALR 659

Rice & Asplund (1978) 6 Fam LR 570

Shan & Prasad (2020) 61 Fam LR 440

Sidhu v Van Dyke (2014) 251 CLR 505

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295

Stephens v Stephens (2011) 44 Fam LR 117

Swenson & Brantley (No.2) [2020] FamCAFC 205

Spencer v Commonwealth (2010) 241 CLR 118

Walter & Walter [2016] FamCAFC 56

Division: Division 2 Family Law

Number of paragraphs: 153

Date of hearing: 24 November 2022

Place: Canberra

Counsel for the Applicant Mr I Duane

Solicitor for the Applicant Farrar Gesini Dunn

Counsel for the Respondent Ms R Curran

Solicitor for the Respondent Robinson + McGuiness

ORDERS

CAC 2603 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HALLORAN
Applicant

AND:
MR KEATS
Respondent

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

15 december 2022

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Application filed 16 August 2022 be dismissed.
2.By no later than 14 February 2023, the Mother pay the costs of the Father’s Counsel.
3.By no later than 28 February 2023, the Mother pay two-thirds of the Father’s solicitor’s costs.
4.If there is any dispute regarding Order 3, by no later than 31 January 2023, the parties are to file submissions of no more than 1 page in length.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Keats & Halloran has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

Litigation involving the Mother, perhaps even more so than the children, has been a regular feature of her life, doubtless an exhausting and difficult one – with the exhaustion and more not being confined to the Mother. Some of it has patently been beyond her control. The current Application seeks to re-visit final parenting Orders regarding the three children of her relationship with the Father that were made by consent in June 2018. Although a number of the Orders are set out in the body of these reasons, for convenience and ease of reference, a copy of those Orders is Annexure A to these reasons.
I have not the slightest doubt that the Mother loves her three children very much and seeks their best interests. The same comments apply to the Father, with whom the children have lived since the June 2018 Orders. Since the making of them, the Mother has spent very little time with the children; indeed, only relatively recently has that time been undertaken, supervised at a contact centre.
The Father resists the Application on a number of grounds or bases.
For the reasons that follow, the Application, filed 16^th August 2022, as amended and filed on 23^rd November 2022, must be dismissed. The reasons seek to make plain not only why the Amended Application must fail, but also why it was almost certainly doomed to do so, which almost begs the question – here only asked somewhat rhetorically – why was it ever filed, or at least, why was it filed in its current form with the multiple errors and omissions in the evidence in support of it?
Put shortly here, but explored and explained later, (a) the evidence upon which the Application was made was deficient; (b) there were significant if not glaring omissions in the evidence, most notably there being no evidence from the Mother’s current general practitioner, treating psychologist, or treating psychiatrist (these omissions were never explained and generally glossed over); and (c) the surprising, one year old expert evidence relied upon by the Mother from psychiatrist, Dr B, did not comply with the prescriptions in s.79 of the Evidence Act 1995 (Cth), and more particularly as that section has been applied by the High Court in Dasreef Pty Ltd v Hawchar.[1] As summarised in the later High Court decision in Honeysett v The Queen (“Honeysett”), at [25], the issue there, and in the present matter with Dr B’s report, relates to (emphasis added):[2]
As explained in the joint reasons in Dasreef Pty Ltd v Hawchar,the starting point in determining the admissibility of evidence of opinion is relevance: what is the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving …
[1] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (“Dasreef”) especially at [31].
[2] Honeysett v The Queen (2014) 253 CLR 122.
As set out later in these reasons, the “facts in issue” here were never relevantly addressed by Dr B. The principal “facts in issue” related to (a) the diagnoses of the Mother (and the bases for them) by Dr C and Dr D prior to the June 2018 Orders, and (b) possible risks to the children in spending unsupervised time with the Mother in the light of those diagnoses. The relevant diagnoses included (according to Dr C) “a [mental health disorder].” Dr D’s Report expressed a concern that the children’s best interests “would not be able to be met” in the care of the Mother, and that she required “longer term psychotherapeutic interventions … to address her personality vulnerabilities.”
In addition to the above, importantly and respectfully, the Mother’s evidence was, in a number of respects, inapposite to support her Application and otherwise was generally deficient. Indeed, the Mother’s Affidavit evidence, in my view, seriously undermined her Application, as explained below.
On any one of the matters just recorded, the Application must be dismissed. A fortiori, when combined, the matters noted, a number of which were simply not addressed by the Applicant (and obviously should have been), necessarily doomed the Application almost as soon as it was filed.
Applicant’s Orders Sought
The Applicant’s Final Orders sought were contained in the Amended Initiating Application filed on 23^rd November 2022 and were as follows (emphasis in original):
Final Orders Sought
1.        That all previous parenting orders be discharged.
2.That the Mother have sole parental responsibility for [X] born [in] 2009, [Y] born [in] 2012, and [Z] born [in] 2012 (collectively “the children”).
3.        That the children live with the Mother.
4.That unless otherwise agreed between the parties in writing, the children spend time with the Father as follows:
(a)During school terms, each alternate weekend from 6.00pm on Friday until 5:00pm on Sunday; and
(b)During school holidays, for one half of school holidays as agreed between the parties, and failing agreement, with the Father in the first half of the school holidays in even years and second half of the school holidays in odd years.
OR IN THE ALTERNATIVE:
1.        That Order 5 of the Orders made 20 June 2018 be discharged.
2.That Orders 15, 16, and 17 in the Minute of Consent Orders annexed to the Orders made 20 June 2018 be discharged.
3.That the children, [X] born [in] 2009, [Y] born [in] 2012, and [Z] born [in] 2012 (collectively “the children”) spend time with the Mother as follows:
a.During school terms, each alternate weekend from 6.00pm Friday until 5.00pm Sunday;
b.During school holidays, for one half of school holidays as agreed between the parties, and failing agreement, with the Mother in the first half of the school holidays in even years and second half of the school holidays in odd years.
4.That unless otherwise agreed between the parties, changeovers shall be at [E Park] in [Town F].
5.That on Wednesdays, the parent who has care of the children facilitate a telephone call with the other parent for one hour as agreed between the parties or failing agreement from 5:00pm to 6:00pm.
6.That during the scheduled video and telephone calls between the children and the parent who does not have care of the children, the parent who has care of the children ensure that the children are afforded privacy, and not interrupt or allow any other person to interrupt the calls.
7.That the Father facilitate any other video or telephone calls as reasonably requested by the children with their Mother.
Interlocutory Orders Sought
Procedural
1.That leave be granted for the Mother’s Affidavit filed in support of this Application to exceed 10 pages in length.
Discharge Existing Orders
2.        That Order 5 of the Orders made 20 June 2018 be discharged.
3.That Orders 15, 16, and 17 in the Minute of Consent Orders annexed to the Orders made 20 June 2018 be discharged.
Spend Time With
4.That until further order, the children, [X] born [in] 2009, [Y] born [in] 2012, and [Z] born [in] 2012 (collectively “the children”) spend time with the Mother as follows:
(c)       From the date of these Orders until the start of Term 1 2023:
i.On the first, third and fifth weekend after the making of these Orders, from 10.00am until 4.00pm on Saturday;
ii.On the seventh, ninth and eleventh weekend after the making of these Orders, from 9.00am until 5.00pm on Saturday;
iii.Thereafter, each alternate weekend from 9.00am Saturday until 5.00pm Sunday.
(d)       Commencing from the start of Term 1 2023:
i.During school terms, each alternate weekend from 6.00pm Friday until 5.00pm Sunday;
ii.During the school holidays following Terms 1, 2 and 3 in 2023, for a period of five consecutive nights during each school holiday period, and unless otherwise agreed between the parties, commencing at 6.00pm on Friday during the weekend that the children would normally be in the Mother’s care pursuant to the preceding subclause.
(e)       Commencing from the school holidays following Term 4 2023:
iii.During school terms, each alternate weekend from 6.00pm Friday until 5.00pm Sunday;
iv. During school holidays, for one half of school holidays as agreed between the parties, and failing agreement, with the Mother in the first half of the school holidays in even years and second half of the school holidays in odd years.
5.The Mother shall ensure that her partner, [Mr G], or another adult agreed between the parties in writing, is present for the time set out in Order 4(a) above and substantially present for the time set out in Order 4(b) above.
6.That unless otherwise agreed between the parties, changeovers shall be at [E Park] in [Town F].
7.That on Wednesdays, the parent who has care of the children facilitate a telephone call with the other parent for one hour as agreed between the parties or failing agreement from 5:00pm to 6:00pm.
8.That during the scheduled video and telephone calls between the children and the parent who does not have care of the children, the parent who has care of the children ensure that the children are afforded privacy, and not interrupt or allow any other person to interrupt the calls.
9.That the Father facilitate any other video or telephone calls as reasonably requested by the children.
Family Report
10.That pursuant to section 62G the of the Family Law Act 1975 (Cth) the parties jointly engage [Ms H] to prepare an updated family report, whether that be in the capacity as a Court Child Expert (practicing under an appointment as a family consultant) or a privately funded Single Expert, and that the Father bear the costs associated with the preparation of that report.
11.That [Ms H] be provided with a copy of the report of [Dr B] dated 6 October 2021, any documents filed by the parties in these proceedings, and any other documents as agreed in writing between the parties.
Respondent’s Orders Sought
The Respondent’s Final Orders sought were set out in the Response to Final Orders, filed 14^th September 2022. They were as follows (emphasis in original):
1.That pursuant to section 143 of the Federal Circuit and Family Court of Australia Act 2021 and Part 10.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the application filed 16 August 2022 be dismissed.
2.That in the alternative to paragraph 1 hereof, the application filed 16 August 2022 be dismissed, as having failed to demonstrate a change in circumstances for the children justifying reconsideration of the orders made 20 June 2019 and it is not in the best interests of the children for such proceedings to be permitted.
3.That in the alternative to paragraphs 1 and 2 hereof, the application filed 16 August 2022 be dismissed, as such application is brought contrary to the orders made by consent of the parties on 20 June 2018.
4.The applicant pay the respondent’s costs on an indemnity basis.
Interlocutory Orders Sought
1.That these proceedings be jointed with proceeding number PAC1187/2015 between [Mr Keats] and [Ms Halloran].
2.That the evidence, including expert reports, admitted in proceeding number PAC1187/2015 be evidence in this proceeding number CAC2603/2021.
3.That the proceedings are transferred to Judge W Neville for ongoing case management and determination.
4.That pursuant to section 143 of the Federal Circuit and Family Court of Australia Act 2021 and Part 10.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the application filed 16 August 2022 be dismissed.
5.That in the alternative to paragraph 4 hereof, the application filed 16 August 2022 be dismissed, as having failed to demonstrate a change in circumstances for the children justifying reconsideration of the orders made 20 June 2018 and it is not in the best interest of the children for such proceedings to be permitted.
6.That in the alternative to paragraphs 4 and 5 hereof, the application filed 16 August 2022 be dismissed, as such application is brought contrary to the orders made by consent of the parties 20 June 2018.
7.That the applicant pay the respondent’s costs on an indemnity basis.
The Applicant Mother’s documentary evidence
The Mother filed two Affidavits: the first on 16^th August 2022; the second on 17^th October 2022. Her fiancé, Mr G, also filed an Affidavit on the Applicant’s behalf on 16^th August 2022.
The Mother’s first affidavit (August 2022)
At the outset, it is important to record that at par.3 of her first Affidavit, the Mother confirmed that in her Final Orders as set out in her Application she sought (a) to discharge the June 2018 final consent Orders, (b) for the children to live with her and spend time with the Father, and (c) on an interim basis, that there be a gradual increase of unsupervised time with the children, for some overnight time with them, and for the preparation of a Family Report. The last Family Report was prepared by Ms H in March 2018. In my view, the issue of “Reports” loomed large in this matter but was not properly addressed by the Mother.
The Mother did not highlight in either of her Affidavits, the further Final Order sought of having sole parental responsibility for the children. In all of the circumstances of the matter, this was, and is, a remarkable, and in my view, a completely inappropriate Order to seek. I explain why in detail later in these reasons.
Pars.4 – 15 of her first Affidavit, set out what the Mother describes as “[the] relationship history, [the] procedural history, and [the] history of care arrangements.” At one level, there was little to object to in these paragraphs. The relevance of such various and varied claims from 4 years ago (and earlier) to Orders sought in late 2022 was largely “left hanging” so to speak. Whatever the Mother “felt” (e.g. at par.13) about certain earlier reports being “unfairly critical of me”, again is of no moment, or assistance, at all. The Final Orders by consent in June 2018 finalised the issues between the parties. Whatever pre-dated them was then, and is now, (apart from some historical context and other matters noted later) largely irrelevant. The persistent reference to earlier matters, and much other material, was never explained how it was relevant, and how it would assist the Court, to determine the Mother’s current Application.
The Mother then summarised (at par.16) the 2018 Orders, and noted or complained somewhat (par.17) that notwithstanding the June 2018 Orders, she had not spent any face-to-face time with the children between June 2018 and December 2020. She said that part of the reason for this, but without giving any other, was that the Father did not complete an “intake” form with the contact centre, J Contact Centre. The Father gives rather different evidence, noted below.
What is immediately remarkable in the Mother’s Affidavit is the complete absence of any reference to any Contravention Application brought, or explanation of why a contravention Application was not brought, by her in the period she complained about in par.17 regarding not spending time with the children. This obvious lacuna regarding evidence and/or process, was never explained. Put another way: if the Mother was so concerned about not spending time with the children, why did she not bring any Application before the Court?
Next she expressed concern (par.18) regarding the cost of supervision, and again sought to place at least some of the blame for this upon the Father. Again, the Father’s account is rather different, which we will get to shortly.
Par.19 summarily recorded the Mother’s one Skype call each month, which she deposed as having gone well.
At par.20, the Mother deposed to face-to-face time with the children being facilitated by the Father after an FDRC in December 2020, but still with a degree of criticism directed to the Father. She confirmed that since January 2021, there had been “10 successful face-to-face contact visits with the children at [J Contact Centre], being the supervised contact centre.” The Mother noted (at par.21) that she sought that there be a gradual increase in these visits, with them moving to being supervised by her fiancé, Mr G, before moving to unsupervised and overnight time. The time-frame for such transitions was not specified in this paragraph. Par.24 proposed a general time-frame of approximately 12 months by which time the children would be spending each alternate weekend, plus half school holidays, with her. She noted that the drive between the residences of the parents, the Mother in Town L and the Father in Town M, was just over two hours.

Par.22 set out the circumstances that led to obtaining a psychiatric Report from Dr B. In the same place she set out Dr B’s “assessment”. In full, this paragraph provided as follows (emphasis in original):
22.The Orders set out various obligations on me that I needed to meet to apply vary the children’s time with me. These include for me to obtain a psychiatric report, which I have done and served upon [Mr Keats]. I engaged [Dr B] ([Dr B]) to perform a psychiatric evaluation of me. [Dr B] is a specialist in Child and Adolescent Psychiatry and Forensic Psychiatry [...]. The interview was originally scheduled to be in-person but due to the COVID-19 border restrictions, [Dr B] was no longer being permitted to travel from Queensland to [City K]. The medical service provider [Company N] who referred me to [Dr B] therefore switched the appointment to telehealth. I attended [Company N]’s offices at [Suburb O] for the appointment. [Dr B]’s assessment was that “Despite several instances of trauma and abuse, [Ms Halloran] currently does not present with any active symptoms in relation to those except some nightmares and a diagnosis of PTSD in relation to the most recent trauma of a car accident. I believe that [Ms Halloran] is currently doing well and has a good prognosis. I also believe that she should continue to engage with her psychiatrist and psychologist and any treatment decisions should be made in conversation with her treating team.” [Dr B]’s report dated 6 October 2021 and curriculum vitae is annexed hereto and marked “A” on pages 18 to 27.
At par.23 the Mother noted that three prior mediations had not been successful.
Par.25 was central to the Mother’s Application because there she set out the essential reasons why the Orders she sought should be made. That paragraph, over some 2½ pages or thereabouts, was in the following terms. These paragraphs fall into the following general categories:
(a)the Mother’s primary care of the children prior to the June 2018 Orders (this conveniently ignores the reasons why Care and Protection authorities removed the children from her care);
(b)the children have lived with the Father and [now] have a meaningful relationship with him (the sub-text here is that the Father’s “time” should now somehow expire because he has had enough time with the children but the Mother has not; other explanations are possible but not set out);
(c)the Mother will promote and support the children’s ongoing relationship with the Father;
(d)her 13 year old daughter X has expressed a view of wanting to live in City K, allegedly saying also that her Father said that this could happen when she turns 15. As important as the views of children can be, this is little more than an unsubstantiated assertion. Further, none of the matters here noted amount to a relevant change in circumstances
(e)the Mother’s child from an earlier relationship (P, now Q) lives in City K. The Mother generally described the incidents of her relationship with Q and the support she provided during Q’s gender transition. She also deposed that if the children lived with her they would be able to see Q more regularly. It was not explained how, or why, this information could or would constitute “a material change in circumstances” with respect to the children here;
(f)the Mother said that she had many close friends in Town L who had children of similar age(s) to the children here. Likewise, she said that her fiancé has a nephew and nieces with whom her children could relate, and similarly with other children “on our street in Town L”. It was not explained how, or why, this information could or would constitute “a material change in circumstances” with respect to the children here;
(g)the Mother set out her various work endeavours as a carer and educator (which she still does and enjoys), where changeover would or should take place (Town F), some general details about her fiancé who has indicated his willingness to assist her with the children, plus some details of his house with four bedrooms. The Mother said she could assist the children with their homework because of her previous work as an educator, and she said that she and Mr G hope to marry soon but would not do so without the children present. It was not explained how, or why, this information could or would constitute “a material change in circumstances” with respect to the children here;
(h)if the children lived with the Mother, she said that they could attend Town L Public School, and provided details of the school and its facilities (actual and proposed). The Mother said that she and Mr G have also considered private schools in City K for the children. Again it was not explained how, or why, this information could or would constitute “a material change in circumstances” with respect to the children here;
(i)The Mother noted the children’s hobbies and some of their personality traits. It was not explained how, or why, this information could or would constitute “a material change in circumstances” with respect to the children here; and finally
(j)the Mother noted her more recent employment and how she had flexible work hours. It was not explained how, or why, this information could or would constitute “a material change in circumstances” with respect to the children here.
In general terms, many of the matters mentioned by the Mother in par.25 are either (a) aspirational, e.g. if, or when, the children come into her full-time care (e.g. changeovers in Town F, wedding with the children present, if/when a High School is built nearby), and therefore irrelevant, (b) highly generalised (e.g. the children playing with other children in her street) as to be of no utility at all, and/or (c) otherwise do not come into any category of features that would come close to constituting a “material/relevant change in circumstances”, to use or to satisfy the long-standing test for Rice & Asplund purposes.
At par.26, this time over approximately 4 pages, the Mother deposed to, or rather commented upon, her concerns if the children continue to live in the Father’s care. Yet many of the matters she recorded arose (on her account) in September 2018 regarding difficulties about time-with arrangements at J Contact Centre. No Application arising out of, or in relation to, these incidents was filed until August 2022. The Mother here also recorded what she says were a series of difficulties with the Father in arranging time with the children between 2019 and 2020. As earlier noted, none of these historical matters gave rise to any Application by the Mother. Why they were set out here to assist her present Application was never explained.
Like almost all of the Mother’s contentions and information in par.25, the matters set out in par.26 are essentially historical, have no bearing on the present Application, have never given rise to a complaint such as to warrant filing any Application, do not constitute (on any view) a relevant change in circumstances, and in consequence, should never have been put in the Affidavit or otherwise filed. They assist the Court not a jot.
Pars.28 – 35 purport to provide the Court with an update regarding the Mother’s “mental health.” This was, or should have been, a central plank of her Application.
The Mother deposed that her mood is good and has improved throughout 2021 and 2022. She is in a “stable and loving” relationship with Mr G. She noted various courses she has done. All but one, presumably, were online only. Perhaps the other course was online also.
She said that she does not drink alcohol or consume illicit drugs. On her then psychologist’s advice (Ms R), the Mother stopped seeing her. She said that her current diagnosis is anxiety and PTSD. The Mother said that she takes medication prescribed by her GP (Dr S), which was continued by her psychiatrist (Dr T) since early 2021, relating to her car accident. She had been seeing her psychotherapist and psychologist (Ms U) until December 2021, again relating to her car accident in 2020.
None of these health professionals provide any information to the Court. Nor was it confirmed or explained whether any of them had been provided with any of the expert Reports (especially that of Dr C) that led up to the June 2018 Orders. The Mother’s material, and similarly that of Dr B, provides no information at all regarding the crucial diagnoses of and recommended treatment by, Dr C (and others around the same time) and the Mother’s engagement with those diagnoses and the treatment he recommended. As discussed below, Dr B was provided with copies of the earlier Reports. But that alone is insufficient to address the diagnoses then made, the strong cautions expressed by Dr C regarding the Mother’s diagnoses and her treatment, and what happened in relation to the recommended treatment of the Mother.
The Mother deposed that she is working with a child and family therapist in the employ of her lawyers.
Perhaps as useful as this information was generally, maybe by way of background, it did not address the crucial diagnoses made by the experts prior to the June 2018 Orders. Alas, again the Court must record the extreme difficulty in having a large amount of material put before it, most of which not only did not assist the Mother’s Application, but seriously undermined it. Perhaps this rather explains her experienced Counsel’s approach at the recent hearing, who patently took a “small target” approach, and limited his submissions as much as he could to the somewhat less dramatic changes to the children’s living situation proposed by the Mother, presumably on the basis that the Mother’s material was so antithetical to her cause.
This was highlighted, for example, by the submission that the Court should really only consider the Mother’s interim Orders sought, which did not canvass any change in residence, for example, and therefore were not so radical. Among many problems with this submission was the Mother’s most recent Affidavit (October 2022) which, at par.20 and following, addressed the Mother’s thinking and reasons behind her “decision to seek that the children live with me on a final basis” (quoting from the heading at this part of this paragraph).
The Mother’s Affidavit ploughed on. At pars.37 – 42 of this Affidavit, she summarised her account of how the supervised, face-to-face visits with the children have gone. She annexed to her Affidavit the contact centre notes.
Par.43 deposed generally to allegations of domestic violence against the Father “during and after my relationship with [Mr Keats].” Why and how this is relevant to the current Application was never explained. Again it glosses over the reasons for Departmental involvement that resulted in the children being removed from her care. Like many other paragraphs in this Affidavit, it should not have been included in the Mother’s material and, in its current form, never filed.
Pars.44 – 47 noted a number of the Mother’s concerns with existing Orders. As a matter of form and procedure, these paragraphs should never have been included. If the Mother had concerns about the Consent Orders in June 2018, she should have done something about them either at the time, or much more expeditiously than including them at the end of her primary Affidavit to re-open the litigation. They are very close to an abuse of process.
Finally, at par.49, the Mother deposed: “I am mindful that the Orders I am proposing represent a significant change to the current arrangements but I am confident that I can be responsive to their needs and their best interests.”
Respectfully, leaving to one side that there is no mention directly of the children in this aspirational, starry-eyed but utterly improbable and evidentiary deficient paragraph, how the Mother’s lawyers allowed this paragraph to remain in the Affidavit, and/or to be filed with it, is astonishing. Among many comments that are apposite: (a) it is a form of admission that the Mother’s Application and Orders sought are, at least, almost wayward and inappropriate in the light of the history of the matter, the limited and often inapposite evidence, and in the face of the Mother’s very limited time with the children, still only supervised; (b) a further, implicit, admission that there is no expert evidence (and properly, almost no objective evidence otherwise) provided by her that directly addresses her diagnoses by experts leading up to the June 2018 Orders (this also partly assumes that the Mother was properly aware of or advised about such an essential part of her Application); and (c) there is a very large disconnect between the radical Orders sought by the Mother, which she seems to recognise, and the lack of relevant evidence to support them, which she apparently does not. How and why the Application was filed in the light of the immense evidentiary issues noted, is a concerning mystery.
Put another way, this statement by the Mother in par.49 confirms that her current Application is aspirational and is based on her hope and intention (as opposed to relevant evidence) of the children coming into her care and of being able properly to care for them. Nowhere does she (and likewise Dr B) address the reasons why the children were removed from her care; nor does she address her diagnoses, and strongly recommended treatment, by the experts leading up to the Consent Orders in June 2018. These were, and remain, fundamental flaws in her Application.
The Mother’s second affidavit (October 2022)
Pars.4 – 7 outline (a) the Mother’s sadness at the Father seeking to have her Application dismissed because, in her view, she had complied with the 2018 Orders; (b) her concern (expressed in her earlier Affidavit) about what she sees as the Father not properly engaging in steps to progress her time with the children; (c) how the Father’s summary dismissal Application is likely to increase her costs; and (d) how grateful she is for the Court having appointed an Independent Children’s Lawyer (“ICL”). The unfortunate, but relatively brief, but completely unnecessary imbroglio regarding the ICL is canvassed briefly at the end of these reasons.
Pars.8 – 11, purport to outline briefly the processes that led to the June 2018 Orders. Some of the material here referred to what transpired in discussions obviously between lawyers and the parties at that time. This material should never have been included in the Affidavit. Among other things, it was obviously privileged.
Pars.12 – 14 set out the difficulties the Mother said she had in securing a psychiatrist and the reasons why. This included confirmation that her appointment with Dr B was via Zoom. How and why this was relevant to any issue for the Court to decide is not apparent; nor is it explained.
The Mother said that her appointment with Dr B lasted “approximately one hour.” She listed the documents that were provided to Dr B. Again, why this was necessary was not explained, especially since Dr B listed the documents he was provided with, in accordance with usual practice.
Pars.15 – 19 set out what the Mother says took place upon providing the Father with Dr B’s Report. She extracted a copy of the email response of the Father, dated 18^th April 2022.[3] In it the Father made clear that, among other things, he did not consider Dr B’s Report addressed “the serious diagnoses made by [Dr D] and [Dr C].” The Father confirmed that he did not agree with the children spending unsupervised time with the Mother. In particular he noted:
I am very concerned that [Dr D] and [Dr C] diagnosed [Ms Halloran] as possibly having a personality disorder but [Dr B] does not address this in any meaningful way. There is no discussion about this in his report. He also seemed to conclude that [Ms Halloran] only suffers PTSD in relation to a recent car accident. This is the history that [Ms Halloran] herself reports to him.
[3] The email from the Father of 18^th April 2022 is Annexure B to the Mother’s Affidavit.
The Father noted further in his correspondence in April 2022 that Dr B did not address any risk issues for the children if they spent unsupervised time with the Mother. He noted too that Dr B seems to have accepted the history given by the Mother.
In the remainder of these paragraphs, which were more by way of a form of submission, the Mother confirmed that she provided the Father with reports from Dr T’s and Ms U. A copy of correspondence between the lawyers enclosing the letter of instruction to Dr B was noted and annexed.
Almost by way of remonstration, the Mother said that the Father “never responded to my pre‑action procedures notice. He did not make an offer, nor did he say what Orders he intended to seek if I commenced proceedings.” To state the obvious: the Father made his position clear in his email to the Mother, dated 18^th April 2022. That email, sent to the Mother’s lawyers, was a respectful and detailed account of why he did not accept the opinion of Dr B. In the light of this email, the Mother could have been in no doubt of the Father’s position.
Pars.20 – 23 set out, but largely repeat from her earlier Affidavit, the reasons why she says she seeks that the children should change residence and live with her. She averred that “many things have changed since 2018”, including …
(a)She is engaged to Mr G, who is supportive of her in all ways, including the children. Mr G is “steadily employed in areas related to the community and is undertaking a course of study in community work”;
(b)The Mother has secured steady employment, and has flexibility to enable her to be available for the children when they are with her. She is undertaking a tertiary degree;
(c)She has previously volunteered with a number of agencies and has made “close friends and mentors in the wider community”;
(d)She shares a four bedroom house with her fiancé. The house is in a “family friendly” neighbourhood;
(e)The Mother deposed that she had successfully sought treatment for mental health issues that have occurred since 2018, namely PTSD from a car accident. But, again, there is no reference anywhere to the diagnoses and treatment recommended by Dr C (among others); and
(f)She set out Dr B’s three line assessment of her mental health, but which focusses only on “any active symptoms in relation to those except some nightmares and a diagnosis of PTSD in relation to the most recent trauma of a car accident.”
Then follows very briefly what appears to be the Mother’s primary reason for bringing the Application namely (par.22) “because I am very concerned about [Mr Keats] being so opposed to having a relationship with me.” It is unclear if this is a typographical error because it refers, on its face, to the Mother’s lack of relationship with her former Husband. I assume, however, that she intended to say here that her concern relates to the relationship with her children; this is somewhat clarified in par.23. These matters, even as a matter of proper drafting, should have been clarified by the Mother, or at least with, or by, the Mother’s lawyers. Again, attention to helpful detail was not a strong feature of the Mother’s material.
In all of the circumstances, I do not consider it necessary or helpful to outline the unsurprisingly completely supportive Affidavit of the Mother’s fiancé, Mr G. I will consider Dr B’s Affidavit after addressing the Father’s material.
The Respondent Father’s Affidavit
The Father filed an Affidavit on 14^th September 2022. He deposed as follows.
Pars.3 – 6 provide a brief overview of the history of the litigation, including the children being removed from the Mother’s care in 2015 by Care and Youth Protection Services (“CYPS”).
At par.5, the Father set out part of the Report of Dr C in which he said that the Mother “suffers from a [mental health disorder].” He quoted also from Dr D’s Report and expressed concern that the children’s best interests “would not be able to be met” in the care of the Mother, and that she required “longer term psychotherapeutic interventions … to address her personality vulnerabilities.”

In par.6, the Father expressed the same comments notified to the Mother’s lawyers in April 2022, regarding Dr B not addressing the diagnoses of the Mother by the experts prior to the June 2018 Orders.
In pars.7 – 9, the Father contests (and rejects) the Mother’s claim that he did not engage in “pre-action procedures.” He noted in particular that the June 2018 Orders [at Order 22 and in Notation A] preclude the Mother seeking to vary the Orders in relation parental responsibility and for the children to live primarily with him. The Mother seeks to have the Court address her interim Orders primarily or only, which she submits (according to her written submissions at par.13) obviates almost any and all issues regarding, for example the principle in Rice & Asplund. Such would also (she submitted) counter, if not thwart, the Father’s arguments.
On its face, to adopt this course would mean that, whatever the Court’s determination regarding the Mother’s interim Orders sought, it would necessarily leave that part of her Application regarding Final Orders untouched and to be determined at a later time. So viewed, this would be effectively to have “two bites of the [one] cherry.” Moreover, as noted earlier in these reasons, the Mother’s most recent evidence in her October 2022 Affidavit addresses specifically her decision to seek to have the children live with her on a final basis. Raising it even more recently also makes it impossible to ignore and to deal with it at some later time.
Further, such a bifurcation of an Application into interim and Final Orders sought would be completely inappropriate. Among other things, such would be wholly inconsistent with the principles in AON Risk Services Australia Ltd v Australian National University regarding proper or robust trial management and the diligent and careful use of scarce public resources.[4]
[4] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 especially at [5] and [6] (French CJ) and at [113] and [114] (plurality of Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In my view, the Mother’s Application must be considered as a whole. It would be remarkably artificial to consider one part of it and to ignore to some undefined later time the other part of it regarding Final Orders sought.
Pars.10 – 12 describe the very limited time the children have spent with the Mother since the June 2018 Orders. The Father also recounted various anonymous threats to two contact centres, which resulted in the supervised time not going ahead for quite a period of time. The Father further noted that the Mother spent no time with the children between late 2016 and January 2021. However, there were regular Skype calls between the children and the Mother during this time. The Father confirmed that the children have spent approximately 10 supervised sessions with the Mother, of approximately 2 hours each, since January 2021. This is the only “in person” time the Mother has spent with the children since 2016.
Simply by way of observation here: there seems little dispute about this very limited face-to-face time between the Mother and the children as deposed to by the Father. In my view, it is alarming in the extreme that the Mother was permitted by her lawyers to seek (a) unsupervised time with the children, and (b) a change in residence of the children on the singular bases of (i) so little and limited time between the Mother and the children, (ii) the Mother never having addressed such circumscribed time, other than by reference to her hopes and aspirations, and (iii) Dr B never addressing the very strong diagnoses and treatment regimens recommended by the experts prior to the 2018 Orders.
In pars.16 – 29, the Father outlined the current care arrangements for the children. I do not need to recount them here. In passing, I note that at par.30, the Father said that, contrary to the Mother’s contention that she pays $1500.16 per month in child support, he had never received such an amount. He said that he currently receives $774 per month in child support. He said that since 2014, for most of the time, he received less than $30 per month.
Pars.31 – 38 provided further “background” and a response to, plus a refutation of, the Mother’s various accounts. Again, I need not, and will not, canvass all of these paragraphs, which are largely irrelevant to the current Application. It is sufficient for current purposes (without noting all of the specific denials and explanations by the Father) that:
(a)Par.34 recounted criminal proceedings in 2016 commenced by the Mother against the Father around the time the children were to be transitioned into his care. Ultimately, during the Mother’s evidence, the charges were withdrawn and the Domestic Violence Application was dismissed. The Father was not required to give evidence. He contended that various text and other messages were in fact sent by the Mother to herself, from a phone that was registered in the Father’s name;
(b)The Father said that he always complies with the 2018 Orders and makes the children available for Skype calls and the like;
(c)The Father said that the children are “generally ambivalent” to spending time with the Mother, and that she has difficulty “engaging with [the children] in an age-appropriate manner”, and that the Mother “appears to still be fixated on the children having health conditions that they do not experience.” The Mother’s fixation and “treatment” of such matters was part of the reason(s) the children were removed from her care in 2015;
(d)The contention that the Father cancelled an appointment at J Contact Centre was denied, and confirmed (by attaching the relevant record, Annexure A to the Affidavit) that it was cancelled by J Contact Centre; and
(e)The Father denied that Mr G has ever met the children face-to-face, and opposed any time between him and the children.
The Report of Dr B
Dr B’s Report was annexed to his Affidavit, filed 19^th November 2022. The 28 pages of this Affidavit (including annexures) contained (a) the formal adoption of the Court Rules and Regulations regarding experts, (b) his letter of instruction, (c) the 11 pages of his CV, and the Report itself, which runs from pages 21 – 28.
Relevantly, at pages 22 – 23, Dr B recorded that the assessment was conducted by video conference and the materials with which he had been provided, which was confined to the Affidavits of the parties, together with the three earlier Reports from Dr C, Dr D, and Ms H. He then noted some “background information” and the occupational history of the Mother.
Next, Dr B noted, as recounted to him by the Mother, her “medical history.” This included reports from July 2015 with the Mother presenting at the mental health unit at City K Hospital with odd behaviours when seen by a nurse (Nurse V). Dr B recorded that Nurse V noted that the Mother did not have “acute mental health issues …”
Dr B noted the Mother’s “current medication” regime but in this section of his Report, he also noted that the Mother denied any ongoing flashbacks, but continued to experience “panic attacks” following her car accident.
The Mother’s psychiatric history was noted summarily between pages 25 – 27. The Reports began with reference to a Ms W, a social worker in February 2014, and concluded with the Mother’s own assessment, which included her seeing Dr T since the beginning of 2022. Among a number of curiosities, the reports from Dr AB (dated 28^th April 2016) and Dr AC (dated 6^th May 2016) are not among those listed by Dr B as having been provided to him by the Mother’s lawyers. It would appear, therefore (without any other evidence) that Dr B’s account is largely dependent upon the Mother’s own report. This assumption may be incorrect but the basis of Dr B’s comments is not otherwise clear.
It is also somewhat curious that the “reports” of these psychiatrists, from 28^th April 2016 and 6^th May 2016, are dated so close together. How and why this is so was not explained. In any event, Dr AB recorded that the Mother had a long history of “recurrent depressive episodes” and that she would likely require “long-term support” from a team that included a psychologist or psychiatrist. The brevity of this report, and likewise of Dr AC, render them of very little use here.
Notably, as remarked elsewhere in these reasons, there is nothing before the Court from the Mother’s current treating psychiatrist, Dr T. This omission was and is remarkable. It is not remedied by Dr B’s Report.
Rather remarkably, Dr B does not refer to the detailed Report of Ms H at all. This is even more curious (and unfortunate) given that the Recommendations of Ms H were, in large measure, the foundation for the June 2018 Orders. Why there was no reference to this Report was not explained by Dr B, or anyone else. I note, among other things, that at par.83 of her March 2018 Report, Ms H stated the important “risk” issue as follows (emphasis added):
A more pertinent question is whether [Ms Halloran] represents any current risk to her children, bearing in mind she is not seeking to assume the role of primary carer and indeed has indicated that she would agree to her time with the children being supervised initially. This demonstrates both insight into the children’s needs, into her ex-husband’s concerns as well as a capacity to be realistic…
With “risk” to the children spending time with the Mother being directly raised by Ms H in 2018, and that her Report was provided to Dr B, it is very concerning that this critical issue was never addressed by him.
No less remarkable are the apparently incompatible comments by Dr B regarding Dr C’s detailed assessment. On the one hand, Dr B said that Dr C noted that no mental illness was confirmed in relation to the Mother, but on the other hand, he went on to note that Dr C diagnosed the Mother with a possible mental illness which was a personality disorder. “Inpatient assessment” was recommended but never addressed by Dr B.
Dr B noted Dr D’s observations that the Mother had personality vulnerabilities.
Dr B then opined (at pp.27 – 28 of his Affidavit; pp.7 – 8 of his Report) about the Mother in 7 short paragraphs, summarised as follows:
(a)The Mother was well groomed and made good eye contact during the session with him. She was oriented in time, place and person. She was pleasant during the interview.
(b)The Mother’s speech was “relevant and coherent” with normal volume, tone and tempo. On her own report, the Mother said that her mood was good. There were no thought or perceptual abnormalities; the Mother denied any delusional thoughts or hallucinations.
(c)Ms Halloran “appeared to have good insight and judgment and understood that she needed to continue with her medication at present.” Whether the “judgment” was meant to refer only to the taking of medication was not clarified or confirmed.
(d)The Mother stated that she “did not believe” she had any issues except her PTSD.
(e)According to Dr B, the Mother presented as a woman with an extensive history of trauma throughout her life, who has been subjected to both physical and sexual abuse.
(f)The Mother does not currently present “with any active symptoms in relation to those except some nightmares and a diagnosis of PTSD in relation to the most recent trauma of a car accident.”
(g)Dr B concluded his Report in the following terms: “I believe that [Ms Halloran] is currently doing well and has a good prognosis. I also believe that she should continue with her psychiatrist and psychologist and any treatment decisions should be made in conversation with her treating team.” Alas, there was (and is) nothing from the Mother’s current “treating team” before the Court.
(h)Nowhere in Dr B’s report is there any consideration of the matters set out in the Father’s Affidavit of 1^st June 2018.
Subject to what is set out below, the generality of Dr B’s Report, its failure to engage with the details of Dr C’s, Dr D’s, and Ms H’s Reports, together with the relative brevity of the consultation with the Mother (she said it was approximately 1 hour), and that it is approximately one year old, makes it of extremely limited, if not negligible, utility for the purposes of the Mother’s Application.
Written Submissions on Behalf of the Applicant Mother
The Applicant’s written submissions were filed on 18^th November 2022 in a Case Summary Document; they were as follows (emphasis in original; footnotes omitted):
Documents Relied Upon:
1.        Initiating Application filed 16 August 2022;
2.        Reply filed 18 November 2022;
3.        Affidavit of [Ms Halloran] filed 16 August 2022;
4.        Affidavit of [Mr G] filed 16 August 2022;
5.        FDR Certificate filed 16 August 2022;
6.        Affidavit of [Ms Halloran] filed 17 October 2022; and
7.        Family Report of [Ms H] dated 18 March 2018.
Submissions on the Respondent Husband's Application to Dismiss
1.These are fresh proceedings commenced by the Applicant Mother ("the Mother") on 16 August 2022, approximately 4 years after the conclusion of previous parenting proceedings finalised on 20 June 2018, though Orders were substantially made by consent ("the 2018 Orders").
2.The Mother is seeking, on an interim basis, that her time with the children gradually increase and ultimately lead to unsupervised time. On a final basis, the Mother is seeking that the children live with her and spend time with the Father.
3.The Respondent Father ("the Father") seeks to dismiss both the interim and final application on three purported grounds, summarised at Order 6 of Orders made 4 October 2022 as: an application for summary dismissal; Rice v Asplund, and the construction of the previous Orders.
Summary Dismissal
4.The Father is seeking summary dismissal pursuant to Part 10.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Rules"). The grounds for applications under this Part are: that the court has no jurisdiction (Rule 10.09(1)(a)); the other party has no capacity to apply for the orders sought (Rule 10.09(1)(b)); it is frivolous, vexatious or an abuse of process (Rule 10.09(1)(c)); and there is no reasonable likelihood of success (Rule 10.09(1)(d)). Presumably, the Father is also relying on section 45A of the Family Law Act 1975 (Cth).
5.Procedurally, in applications for summary dismissal, the Court does not undertake a preliminary trial, nor is a detailed hearing of the case on its merits required. Instead, the Court must take the party resisting the summary dismissal's case at its highest (unless it was inherently incredible or unreliable).
6.It was observed by the Full Court, in Stativa & Stativa [2015] FamCAFC 170, that the court should take a cautious approach to summary dismissal of proceedings. The Full Court said at [8]:
"The power to summarily dismiss an action must be rarely and sparingly used (see Pelerman v Pelerman [2000] FamCA 881; (2000) FLC 93-037). The Full Court discussed the power of the court to summarily dismiss proceedings in Bigg v Suzi [1998] FamCA 14; (1998) FLC 92-799 at 84,974–84,975 and adopted the articulation of the principles of Kirby J in Lindon v The Commonwealth (No 2) [1996] HCA 14; (1996) 70 ALJR 541 (“Lindon”) at 544–545, which may conveniently be summarised thus:
•It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
•The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
•That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
•If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
•Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a court will ordinarily allow that party to reframe the pleadings; and
•         The “guiding principle” is doing what is “just”."
7.It is submitted the Mother's case is not inherently incredibly or unreliable. Her evidence is that she has had multiple successful face-to-face visits with the children at [J Contact Centre], her overall mental health prognosis is improved (described by [Dr B] as "good"), and her partner is a willing, able and suitable supervisor to facilitate supervised time between her and the children. Those matters, it is submitted, support interim orders being made that are different to the current orders.
8.On a final basis, the Mother's evidence suggests the Father refuses for the Mother to have any meaningful relationship with the children. She seeks that the children live with her on a final basis. The evidence underpinning the Mother's contention that the Father is completely unsupportive of the children having a relationship with her includes:
(a)There have been a series of unusual incidents, including anonymous email threats issued to [J Contact Centre] which have prevented the Mother from having contact with the children for a number of years. The Father denies that these threats originated from him. However, the emailer was aware that the date and times of the supervised visits and the only other person who was aware of these visits and who would have an incentive to stop the visits is the Father. It is submitted the Court would want to "get to the bottom of" this issue.
(b)When [J Contact Centre] is unable to facilitate the visits on Saturdays as a consequence of those threats and needing more staff, the Mother proposes a different supervision service or that the visits be on a different day of the week, the Father refuses to agree to those changes.vi
(c)The Father seeks to summarily dismiss these proceedings and maintain the current arrangements of extremely limited time of 2 hours every two months and continue supervision indefinitely. He refuses to consider different arrangements.
9.If the Mother's evidence is taken at its highest then both her interim and final application have "reasonable prospects of success". Whilst the Court does not have to make a finding on the likelihood of her success at present time, it should be noted "that even if a case is weak, that is insufficient to justify its summary dismissal" – the bar for summary dismissal is high and not met here.
10.Respectfully, the suggestion that the application is frivolous, vexatious or otherwise an abuse of process is not reasonably open. Four years have passed since the previous proceedings concluded, the 2018 Orders provided a process for the Mother to recommence proceedings, and she has complied with that process. The bar for finding that an application is vexatious is also very high and not met. For example, in Marsden v Winch [2013] FamCAFC 177, the Father was repeatedly denied contact with his child due to allegations of public indecency involving young children. Although he engaged in persistent litigation between 2004 to 2013, the Full Court held that "Although the father has filed and prosecuted numerous applications in the court, not all of which have been successful, none has been dismissed as being either frivolous or vexatious. Similarly, the proceedings before the trial judge were unsuccessful but his Honour’s reasons do not suggest that the proceedings were vexatious." and that "His Honour was in error in making the order pursuant to s 118(1)(c) or in the alternative r 11.04(1)." Section 118 was the predecessor of section 45A of the Act, and r 11.04 was the predecessor of the current r 10.09 of the Rules.
Rice v Asplund
11.The 2018 Orders broadly followed the recommendations of the family report writer [Ms H]. One of those recommendations was that "this matter is reviewed hopefully by mediation rather than litigation in 12 months with a view to increasing the children’s time with their mother". Order 22 says "Both parties have liberty to apply to vary all Orders except 1, 2, and 10 on one occasion upon the completion of Orders 20 and 21, and this will be the occasion referred to in Notation A." Notation A says "That notwithstanding the authority of Rice v Asplund, that once the Mother has complied with Orders 20 to 21, that the parties be at liberty to seek a variation of all Orders except 1, 2, and 10 on one occasion without demonstrating there has been a significant change in circumstances since these Orders were made and neither party shall raise that as a reason the Court should not hear the application."
12.Order 1 provides the Father sole parental responsibility, Order 2 provides for the Father to keep the Mother informed about significant illnesses of the children and Order 10 provides for the children to live with the Father.
13.The Mother has complied with Orders 20 to 21. Accordingly, with respect to her interim application (where she seeks to vary the 2018 Orders by increasing her time with the children and does not seek a change of residence nor Orders regarding parental responsibility), the 2018 Orders specifically give her liberty to apply and there is no need for the Mother to meet the threshold test in Rice v Asplund.
14.Even if the Mother did not have liberty to apply pursuant to the 2018 Orders, it has long been the case that to put long-term supervision arrangements place, there must be cogent reasons for doing so. Not allowing the Mother liberty to apply to revisit the supervised time arrangements would be an error. In Gorman & Huffman and Anor [2016] FamCAFC 174, the Full Court varied the Orders made at first instance for indefinite supervised time such that the parties and the ICL have liberty to apply to seek a variation of the order for supervised time.
15.With respect to the Mother's final application, she sets out several significant changes in her circumstances including her desire to relocate, having obtained stable accommodation, having completed her degree and working as a [professional], having re-partnered, and having obtained a psychological report with a good prognosis. The change in circumstances is remarkably significant. A significant period of time has also passed between the 2018 Orders being made and this current application (4 years), whilst it was anticipated that the supervision arrangements would need to be reviewed after 12 months (1 year). Furthermore, the Father has actively resisted the implementation of the 2018 Orders until early 2020. It is submitted that the threshold for the 2018 Orders to be reviewed is met, and on a final basis, if the Father resists a change in residence that should be a matter for a contested final hearing rather than summarily dismissed at this early stage.
Construction of Previous Orders
16.The Father also seeks a dismissal on the basis that the Mother's application is contrary to the 2018 Orders. That aspect of his Response is misconceived – the 2018 Orders gave the parties "liberty to apply" to vary specific Orders and there are no injunctions restraining the Mother from seeking different Orders, nor do such injunctions exist in the Family Law Act (1975) ("the Act"). The Mother submits there is no merit to this element of the Father's position.
Submissions on Costs
17. The Father seeks that the Mother pay his costs on an indemnity basis in his Response. He has not, however, complied with Rule 12.13(4).
18. If the Father's application for summary dismissal is wholly unsuccessful that would be a factor in support of an order for costs being made in the Mother's favour. The mother's submissions against the application suggest the position adopted by the father was, in all the circumstances of this case, not least of all the mechanism in the current orders and the delay since those orders were made, ill considered.
Written Submissions on Behalf of the Respondent Father

The Respondent’s written submissions were filed on 21^st November 2022 in a Case Summary Document; they were as follows (emphasis in original; footnotes omitted):
Documents Relied Upon:
1.Response filed 14 September 2022.
2.Affidavit of [Mr Keats] dated 14 September 2022.
3.Notice of child abuse, family violence or risk filed 14 September 2022.
4.Report of [Dr AD] dated 7 September 2010.
5.Report of [Dr D] dated 17 March 2016.
6.Report of [Dr C] dated 20 March 2016.
7.Family Report of [Ms H] dated 18 March 2018.
8.This Outline of Submissions and Tender Bundle.
Submissions on Summary Dismissal
1.This Outline of Submissions is filed in accordance with Order 7 made 4 October 2022.
2.The Respondent’s application is for summary dismissal of the Mother’s Initiating Application filed 16 August 2022. The Court’s power to make such an order is found at s.143 of the Federal Circuit and Family Court of Australia Act 2021; s.45A of the Family Law Act 1975 and Rule 10.09(1) (c) and (d) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
3.An application for summary dismissal is not a hearing as to the merits of the case. It is a determination as to whether, taking the applicant’s evidence at its highest, that application has no reasonable prospect or likelihood of success. It is accepted that the Court should take a cautious approach to an application for a summary dismissal of proceedings as it is a serious matter to deprive a party of the opportunity to seek orders but the court does have power to summarily dismiss a parenting application.
4.There is no contest as to the history of the matter including involvement and proceedings taken by the Director-General, Child & Youth Protection Services (DG) and the DG’s involvement in the proceedings in the then Federal Circuit Court. The DG withdrew after orders were made placing the children in the Father’s care in [late] 2016.
5.Final orders were made (largely) by consent on the first day of trial. The parties were represented by solicitors and counsel, an ICL had been appointed, expert evidence before the Children’s Court ([Dr AD], [Dr C], [Dr D]) was admitted together with a Family Report from [Ms H].
6.The Applicant seeks final orders for a reversal of care and parental responsibility in circumstances where they were removed from her care [in mid] 2015, where she spent no time with children between late 2016 and January 2021; and has only spent approximately 12 occasions of supervised time since. The Mother relies upon, and has only belatedly, sought to place the report of [Dr B] dated 21 October 2021, properly before the Court, such report having previously only been annexed to her affidavit.
7.The Applicant files no evidence from any of her previous or current treatment providers. She provides no evidence at all which acknowledges or addresses any of the significant concerns which occupied the minds of the relevant experts in the earlier proceedings.
8.The expert evidence obtained in the earlier proceedings from Drs [AD], [AC] and [D] raises significant issues in relation to risk posed to the children in the mother’s care, in relation to her diagnosis, and need for inpatient assessment and treatment.
9.Whilst the Mother’s evidence is to be considered at its highest, it is not considered in a vacuum. [Dr C] states “I have concerns that [Ms Halloran] may be mentally ill with a [mental health] disorder […] the condition is subtle and needs further inpatient psychiatric evaluation as it may fluctuate, be well disguised or may be personality based with loss of touch with reality during stress periods…“I believe she needs to be reassessed in an inpatient setting with access to the ..reports…she would benefit from some ongoing support form a psychiatrist and counsellor or psychologist…without insight and if [issues] continue the children may need to be restricted until she is able to demonstrate her ability to not share [her] beliefs with the children..”
10.That the mother’s fails to engage in any way at all with the issues identified in the earlier proceedings is telling. It highlights the very lack of insight previously identified in the expert reports. The mother is a sophisticated litigant. She complains the father has breached orders but fails to bring evidence of contravention applications or letters to support her position.
11.The father has been the primary carer for these children since late 2016. The mother has seen the children on approximately 12 supervised occasions since. An application seeking orders reposing parental responsibility and care of these children in the mother has no reasonable prospects of success. The father should not be put to the stress, expense, and time of further responding to the application.
Rice & Asplund
12.There is no scope for doubting the correctness of Rice & Asplund. The key issues to be established in a Rice & Asplund are well settled. The evidence must be taken at its highest however the onus is on the Applicant to establish a sufficient change of circumstances to warrant a reconsideration of the parenting arrangements. His Honour Justice Strickland has said: “It also must not be forgotten that even accepting the mother’s evidence at its highest, it is still open to a court, for proper reason, to find that the evidence before the court does not demonstrate a change sufficient to embark on a full rehearing”
13.[Dr B]’s report fails to address in any way the substantive issues in the earlier proceedings: the mother’s mental health history; the opinions of the experts; the recommendation for inpatient assessment and treatment and the lack of evidence of when, how, and if the mother has in any way addressed the issues that were then identified. The mother fails to call any current or prior treating professionals whose evidence may establish a change in circumstances. Her failure to either seek a review by the previous relevant experts or at least to provide evidence of a considered review of the expert’s opinions, is fatal to her application. The other “changed circumstances” that she deposes to are insufficient to contemplate re-opening a parenting matter that has been finally determined.
14.The Court must look at the degree of the change sought to the earlier orders and here the change sought is extreme, noting the children have lived in [Town M] almost their entire life and spent time with the mother on approximately 12 occasions since late 2016.
Construction of the Previous Orders
15.The Orders made did not include an injunction and do not operate as an estoppel or restraint. The jurisdiction of the court cannot be fettered. However, respectfully, the 2018 orders are not of no consequence. They were made at a time when parties were legally represented and knew of the opinion of the experts as to the mother’s mental health. They are relevant insofar as they go to the intention and motives of the parties at the time of entering the orders. The nature of the orders sought by the mother on a final basis ignores the representations made by her, to the father, when entering the 2018 orders, and may therefore amount to an abuse of process contrary to Rule 10.09(1)(c).
Issues for determination:
A. Construction and operation of the June 2018 Orders
On their face, the June 2018 Orders are plain in their “intent” and operation. Orders 20, 21 and 22 state:
Review of Arrangements
20.That the mother may submit to an independent psychiatric assessment, involving the provision of a written report. In the event she does so she shall ensure the psychiatrist is provided with copies of the reports previously prepared by [Dr C]; [Dr D]; [Ms H]; the father’s affidavit affirmed 1 June 2018, and the mother’s affidavit affirmed 29 May 2018, and the mother shall make available to the psychiatrist any further material requested by the psychiatrist.
21.The mother must serve a copy of any such psychiatric report on the father by email or by post.
22.Both parties have liberty to apply to vary all Orders except 1, 2, and 10 on one occasion upon the completion of Orders 20 and 21, and this will be the occasion referred to in Notation A.
Three things are immediately clear. First, there is no doubt that the Mother has provided to the Father and to the Court an independent psychiatric Report. Whether that Report otherwise satisfies what should reasonably and properly be expected of, or in, such a document is considered later in these reasons.
Secondly, as a general and uncontested principle, Court’s do not (or endeavour earnestly not to do so) make Orders that are useless or futile. The converse is true also: i.e. Orders properly have “work to do”. They do not simply fill in space, so to speak. It follows from these very general propositions (for which there is ample and long-standing authority) that here, Order 20 is not, and cannot be, some sort of pro-forma requirement by which a box is ticked (to speak colloquially), which, in turn, would allow the Mother effectively to provide any sort of psychiatric report that would satisfy Order 20. Order 20 must have some actual work to do. In my view, in order to intend (and do) something of substance, Order 20 must be understood as to contemplate, and indeed to require, that it addresses the issues that gave rise to the Orders in June 2018. The Report contemplated by Order 20 would presumably (and naturally) be of such detail and import that it would enable a Court relevantly to see that the issues that gave rise to the June 2018 Orders had been addressed directly and in appropriate detail. Put another way, a Report that did not address the issues that were canvassed in the Reports prior to the 2018 Orders would serve no purpose and would not assist the Court in understanding what the Mother had done to address those issues, and how her response properly supported her current Application. Otherwise, to speak rhetorically, what would be the utility and/or relevance of any independent report? It necessarily follows that any Report that does not (or did not) directly address the issues addressed in the earlier expert Reports, and which undergird the June 2018 Orders, whatever else it does (or does not) say, will be of very little assistance to either the Mother, the Father, or the Court.
Thirdly, on its face, Order 22 plainly prohibits any variation being sought in relation to Orders 1, 2 and 10 regarding parental responsibility and “live with” arrangements. In circumstances where the Orders grant (and the Court agreed to) a liberty to bring one Application to vary all other Orders, except those specified, the question immediately arises whether the same Orders that grant a liberty can formally exclude any other action?
According to the Full Court in Miller v Harrington, it is inapposite to speak about things like “issue estoppel” or “res judicata” in the context of a Rice & Asplund Application, such as there is here (discussed below), but there was no discussion regarding estoppel by conduct.[5] There was no discussion in Miller v Harrington (or apparently elsewhere) that a Court may not have regard to principles in relation to estoppel by conduct (discussed further below).
[5] Miller v Harrington (2009) 39 Fam LR 654 at [100] – [101] (“Miller”).
Put shortly, both parties agreed, which the Court sanctioned, to the terms set out in the Orders, which obviously included Order 22. The parties represented to each other (and to the Court) that the Orders would be the basis for the future conduct of their co-parenting lives, including any Application to the Court in the future.
I accept of course the basic outline of principle by the Full Court in relation to Rice & Asplund, including the remarks quoted earlier from Miller v Harrington. In my view, the Full Court’s comments there do not, at least as a matter to consider in the exercise of discretion, preclude a Court from having proper regard to the conduct of the parties particularly in relation to procedural matters, reflected in the Orders. Thus so here regarding (a) what the Mother must do to satisfy the requirements relating to expert evidence as set out in Orders 20, 21 and 22, and (b) in relation to what can properly be asked of a Court in the future regarding parenting Orders more generally. The emphasis here, I stress, is on the Court’s exercise of discretion, which was a consideration in Miller v Harrington where the Full Court allowed the appeal but ultimately, in the exercise of its discretion, refused to alter the Orders.[6]
[6] Miller at [115] and [117].
Regarding estoppel by conduct, which here must include the test and operation of Orders 20, 21 and 22, for current purposes it is sufficient to record the following.
Two decisions of the High Court are central to the proper appreciation of principle that applies regarding estoppel by conduct: Grundt v Great Boulder Proprietary Gold Mines Ltd, and more recently in Sidhu v Van Dyke.[7]
[7] Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 (especially the judgement of Dixon J at 674-677); Sidhu v Van Dyke (2014) 251 CLR 505.
These cases discuss and outline principle regarding estoppel by convention or conduct. In both cases, as well as many others in between, the Court looks at what one party, by words or conduct, represents to the other party, and upon which this “other party” relies. In part of his detailed outline of principle in Grundt (at 674-675), Dixon J said:
… The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations. This is, of course, a very general statement. But it is the basis of the rules governing estoppel. Those rules work out the more precise grounds upon which the law holds a party disentitled to depart from an assumption in the assertion of rights against another. One condition appears always to be indispensable. That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. … the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it…
Unsurprisingly, Dixon J’s comments in Grundt were applied by the High Court in the recent decision in Sidhu v Van Dyke, the latter being a family law case.
As already noted, for my part, (a) at least in the consideration of the Court’s exercise of discretion regarding the application of the principles in Rice & Asplund (discussed below), and (b) as a matter of construction and operation of Orders 20, 21 and 22, in addition to the clear terms of the Orders, the principles regarding estoppel by conduct are a relevant and significant consideration. In my view, they militate strongly against the Mother (i) being able to rely upon just any independent Report because, in compliance with Order 20, such Report must address the issues upon which the earlier Reports and the June 2018 Orders were based, and equally strongly, against (ii) the prohibition in Order 22 being ignored.
Further still, the reality is that the June 2018 Orders mean what they say, and operate accordingly. The parties agreed, and the Court approved, that the Mother could have one opportunity to re-visit the “final” parenting Orders. Both parties agreed upon the terms [and evidence] upon which this could be done. It should be asked, rhetorically of course: why should either party be able to resile from what each of them had agreed, including the terms of any such Application? It would make a complete nonsense of any Orders if a party, at some later stage, could effectively ignore what she or had previously agreed to.
B. Legal principle: experts (the expert report of Dr B)
As earlier noted, Dr B’s Report was annexed to his Affidavit, filed 19^th November 2022. I have also earlier outlined the basic detail of his Report and therefore do not need to do so again. For the reasons that follow, it is fundamentally flawed. For the same reasons, it does not (and cannot) support the Mother’s Application.
At the outset of these reasons, I referred to (and noted) that in Honeysett v The Queen, the issue there related to the fact in issue that was purported to be addressed by the evidence outlined or discussed in the report in question. Likewise, in the present matter with Dr B’s Report, a crucial issue relates to the fundamental problem (already stated many times) of the Report’s failure to address, or even engage with, the issues and reasons of the three earlier Reports of Dr C, Dr D, and Ms H. The Report of Dr B plainly provides a most general assessment of the Mother’s mental health. It does nothing more. In Honeysett, the High Court said, at [25]:[8]
As explained in the joint reasons in Dasreef Pty Ltd v Hawchar, the starting point in determining the admissibility of evidence of opinion is relevance: what is the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving …
[8] Honeysett v The Queen (2014) 253 CLR 122.
The plurality in Dasreef Pty Ltd v Hawchar (“Dasreef”) said, at [31] regarding the requirements and operation of ss.76 and 79 of the Evidence Act 1995 (Cth) in relation to “expert reports” (emphasis added):
Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered ‘to prove the existence of a fact’. That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between ‘opinion’ and ‘fact’ or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of ‘fact’. Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s.79(1) it is thus necessary to identify why the evidence is relevant: why it is ‘evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.
Relying upon this same passage in Dasreef, the Victorian Court of Appeal recently said in Jacobs (a Pseudonym) v The Queen at [47] (emphasis added):[9]
In any case in which the admissibility of opinion evidence is in issue, the starting point is to identify precisely the fact in issue to which that evidence is claimed to be relevant. That proposition is trite, yet of fundamental importance. Plainly, evidence that is not relevant to the proof of a fact in issue is inadmissible. Further and significantly, the precise identification of the issue, to which the proposed opinion evidence is relevant, is necessary in order to determine whether, in fact, the evidence is probative of that fact in issue, and, if so, whether the witness, who is to give the evidence, is qualified to express that opinion, and whether that opinion is wholly or substantially based on the witness’ expert knowledge.
[9] Jacobs (a Pseudonym) v The Queen [2019] VSCA 285.
In the light of the authorities to which I have referred, as already noted, (a) Dr B’s report is significantly generalised as to be of very limited use; (b) much of his Report is necessarily based upon either (or both) the Mother’s general self-report, and/or the brief observations of the Mother during a tele-health video conference; (c) Dr B did not engage at all with, or otherwise relevantly consider, Ms H’s Report of 3^rd March 2018. The “facts in issue” here relate fundamentally to the diagnoses of the Mother by Dr C and Dr D. In particular, Dr C recorded as follows (the following is noted also in the Father’s written submissions) (emphasis added):
I have concerns that [Ms Halloran] may be mentally ill with a [mental health] disorder […][10] the condition is subtle and needs further inpatient psychiatric evaluation as it may fluctuate, be well disguised or may be personality based with loss of touch with reality during stress periods[11]…“I believe she needs to be reassessed in an inpatient setting with access to the ..reports…she would benefit from some ongoing support form a psychiatrist and counsellor or psychologist…without insight and if ongoing paranoid delusions continue the children may need to be restricted until she is able to demonstrate her ability to not share paranoid beliefs with the children[12]..”
[10] Dr C 20/3/16 page 17 line 706.
[11] Dr C 20/3/16 page 17 line 717-719.
[12] Dr C 20/3/16 page 18-19 line 777-785.

In the same case, the Full Court commented summarily on the award of indemnity costs, relevantly at [73]:
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
The decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (noted by the Full Court) is a regularly cited authority for relevant principle regarding the awarding of indemnity costs.[29] It was referred to in Stephens at [72] and [73]. In Colgate-Palmolive, his Honour outlined the following principles, at pp.232 – 234, which I set out in full (emphasis added):
[29] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-
1.The problem arises in adversary litigation, i.e. litigation as between parties at arm's length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority.
2.The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of Order 62, rules 12 and 19 and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3.This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4.In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata.
5.Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal)and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6.It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
For the reasons set out above, there must be an Order for costs. As the authorities make plain, a single factor alone under the Act is sufficient to found a costs Order. Here, apart from anything else, it is the remarkable and obvious flaws in the Mother’s Application, most particularly the flawed evidence (and the lack of it), that warrants a costs Order. Also in accordance with authority, such an Order is to compensate the Father for him being required, so to speak, to incur costs to oppose the Application; it is not to punish the Mother.
For completeness, I should perhaps note that no one sought a personal costs Order in the light of the unusual and unfortunate circumstances on display here.
For the same reasons, especially the significant failings in the evidence provided, or the notable and alarming lack of it, together with the equally alarming lack of explanation for the obvious omissions (and much else besides), while there is more than an arguable case for an indemnity costs Order, precisely because I do not know what the costs arrangements are as between the Mother and her lawyers, the following seems to me to be appropriate in all of the circumstances:
(a)The full costs of the Father’s Counsel are to be paid by the Mother no later than 14^th February 2023; and
(b)Two-thirds of the Father’s solicitor’s costs are to be paid by the Mother by the end of February 2023. If there is any dispute regarding those costs, the parties are to provide a single page of submissions to Chambers by the end of January 2023 and I will determine the amount on the basis of those submissions in the light of these reasons and the evidence referred to in them.
E. Excursus: the ICL issue
Because the Mother raised in her material the appointment of the ICL, I will address this issue as briefly as possible, still leaving out some other curious aspects of it. It is utterly regrettable that this needs to be done. The issues and circumstances surrounding (and certainly following) the appointment of the ICL were unnecessary, certainly a waste of time and resources, and would have been completely otiose had there been proper checking of possible conflicts, proper adherence to principle, and importantly, proper checking of facts. I also note the following matters because, unfortunately, of the apparent lack of appreciation of some basic matters of practice and procedure, as well as principle.
The following comments may appear to some to be a tad blunt. They are certainly direct; they are not trite (or meant to be) and are serious. They were communicated to the lawyers involved well before these reasons were published by detailed Notations to Orders that issued on 22^nd November 2022. Deliberately of course, no names have been used or persons specifically identified – except the long-standing, senior lawyer Ms AF, who was the original ICL in the earlier iteration of these proceedings but who was not involved at all in the current proceeding.
On its own motion, the Court made an Order (dated 4^th October 2022) for the appointment of an ICL, with a request that (if possible) Ms AF be appointed again because of her obvious immense experience, combined with the fact that she was the original ICL. As it happened, Ms AF was not able to take the appointment. As it also happened, doubtless (in part) due to never-ending funding issues and the increasing unavailability of senior practitioners to accept legal aid matters because it is simply uneconomic to do so, senior ICL appointments are often rather difficult to come by these days. No criticism is intended by such comments, least of all the Legal Aid office. Funding across the board is a perennial issue.
The person who originally accepted the appointment was someone of significantly less experience than Ms AF. Again, a simple statement of fact, not a criticism. As it happens, the solicitor so appointed has an immediate family member in the employ of the Father’s lawyers. This should have been an immediate and obvious “red flag.” The appearance of potential conflict, according to long-standing authority, is sufficient to lead to a person being “conflicted out.” This must especially be true regarding a statutory office that is formally described as “independent”, such as the ICL. Further, as already notified to the parties, again according to principle, no “agreement” can sanction or remove from the Court adherence to proper process and principle, such as in relation to conflict of interest, actual or potential.
From many authorities, it is sufficient, and important, to note the following principle.
In the Full Federal Court decision in Porter v Dyer, there was a discussion of the impact of a potential conflict of interest on the administration of justice.[30] The Court there described the relevant principle as whether a “fair-minded, reasonably informed member of the public might conclude” that there were potential hurdles to the administration of justice arising from a potential or perceived conflict of interest. The emphasis upon might was by the Full Court itself.
[30] Porter v Dyer (2022) 402 ALR 659. See also Charisteas & Charisteas [2022] FedCFamC1A 160.
Similar comments by the Full Family Court were made, relying upon Dyer v Porter, in Charisteas & Charisteas at [38], which spoke about lawyers being “observably independent.” One would hope, and expect, that if the Full Court’s relevant test of potential conflict of interest referred to a reasonably well informed member of the public, and a concern about something that “might” be perceived as a potential conflict, a lawyer, of whatever years of experience and standing, would be even more attuned to such potential, such as having an immediate family member in one of the law firms involved in the matter. It is the “administration of justice”, regardless of the office in question, which has to be kept firmly in mind. It should be noted that Charisteas involved the conduct of a Judge, while Porter v Dyer involved the [inadvertent] conduct of Counsel.
No less troubling in the current matter, in the light of the authorities mentioned, is the fact that this lawyer (the first ICL in this iteration of the litigation) works in a prominent family firm, a principal of which had previously acted for the Mother over a period of time. Apparently no “conflict check” was either done at the firm, or had found anything in this regard. In more colloquial sporting parlance, this would certainly constitute a “second strike” when the first (the close familial relationship) should have been enough for the original ICL to have “retired gracefully” from the contest. How and why this lawyer did not do so remains another mystery. The “mystery” becomes deeper and more concerning because this lawyer then informally, but in writing, challenged the Court’s request to the Legal Aid office to appoint a new ICL because of the clear potential conflict issue. Apparently a further remonstration was undertaken by this lawyer, this time (the Court infers) to higher management of the Legal Aid office, who, obviously without checking that its lower level officers had duly appointed another ICL as requested by the Court. Higher levels of the Legal Aid office took the novel step of engaging obliquely but directly in the litigation by challenging the Order of the Court by writing to the Court indicating that the original appointment would remain in place as being in the children’s best interests. It would seem that this letter was written without reference to the documents filed (properly so), and certainly without reference to the very long and very difficult history of the matter. Presumably the writer of the letter was relying solely on what had been passed on by the first-appointed ICL. The writer of this letter took the remarkable step of challenging the Court (without of course being a party, intervener, or otherwise having any statutory or other “right” to challenge or intervene – and letter alone was apparently thought sufficient anyway) without knowing that (a) the Legal Aid office at the appointment level, had already appointed a new ICL, and (b) a further check had shown that this lawyer’s firm had formerly acted for the Mother, thereby highlighting an even more glaring “conflict” for someone who was meant to be “independent.’
On either one of the grounds mentioned ([a] immediate family member working in the firm acting for the Father, and [b] his firm’s prior engagement acting for the Mother), which are of equal significance and importance, but even more so with both obvious potential “conflicts” now “flagged”, it should have been plain to anyone that it was impossible for this lawyer to remain in the matter. As it turned out, the most recently appointed ICL was conflicted out along with perhaps half of City K in this long-running matter. In the end, the Court discharged the ICL appointment completely.
As noted earlier, all of this was an immense and unnecessary, and quite unfortunate, waste of time and resources regarding the ICL issue, which should never have started in the first place. Ill-conceived remonstrations, and ill-executed thereafter. Basic and proper checking, at all levels, should have disclosed the relevant potential conflicts. According to the Full Court in Porter v Dyer, it is the potential conflict, which might be perceived as leading to a perception of a hurdle to the administration of justice, which must reign supreme.

I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 15 December 2022
ANNEXURE A
FAMILY LAW ACT 1975

IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA FILE NO: (P)PAC1187/2015
BETWEEN:
MR KEATS
(Applicant)

AND:
MS HALLORAN
(Respondent)

AND:
INDEPENDENT CHILDREN’S LAWYER

BEFORE:JUDGE NEVILLE
DATE:20 June 2018

MADE AT:CITY K

UPON APPLICATION MADE TO THE COURT by Ms AA of Counsel for the Applicant, Mr AE of Counsel for the Respondent and Ms AF as the Independent Children’s Lawyer.
ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:
(1)Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, Orders, notations and declarations be made in accordance with the attached document signed by the parties and the Independent Children’s Lawyer on 19 June 2018.

THE COURT NOTES THAT:
A.Child Youth and Protection Services formulated a “Safety Plan” on 7 December 2016, which prohibited the Mother from providing food to the children during supervised contact; accordingly,

ON A FINAL BASIS, THE COURT FURTHER ORDERS THAT:
(2)The Mother is at liberty to involve her eldest daughter, Q, born in 1998 and currently known to the children as P, in any Skype calls pursuant to these Orders, commencing from 9 months after the date of these Orders, but not prior to that date unless invited to by the Father.
(3)Until the date which is 9 months from the date of these Orders, the Mother will not:
(a)tell the children or any of them that the person they know as P is now known as Q;
(b)tell the children or any of them that the person they know as P is now living as a woman;
(c)tell the children or any of them that the person they knew as P has gender dysphoria;
(d)talk to them generally about gender dysphoria; and
(e)show the children or any of them a photograph of P as a woman.

(4)By consent, the parties are at liberty to record the content of the Skype calls.
(5)The mother is prohibited from providing the children with any food, drink or any other substance that may be digested or administered, other than commercially pre-packaged food, which must be provided in full view of the supervisors and shall not contain any powdered material.
(6)That prior to any application to the court, the parties are to attend mediation.
(7)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.
(8)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.
(9)All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

FAMILY LAW ACT 1975
FEDERAL CIRCUIT COURT OF AUSTRALIA
AT CITY KPAC 1187/2015

BETWEEN:
MR KEATS
Applicant
AND:
MS HALLORAN
Respondent
AND:
INDEPENDENT CHILDREN’S LAWYER
BEFORE THE HONOURABLE JUSTICE NEVILLE
On the 20th day of June 2018
APPEARANCES: Ms AA for Applicant
Mr AE for Respondent
Ms AF as the Independent Children’s Lawyer

IT IS ORDERED BY CONSENT:
Parental Responsibility
(1)The father shall have sole parental responsibility for the children:
(a)X born in 2009;
(b)Y born in 2012; and
(c)Z born in 2012.

(2)The father shall inform the mother of any significant (defined as a period of illness greater than 2 weeks) or chronic health issues suffered, or hospitalisation, of the children.
(3)Without admissions, the mother is restrained from taking the children to medical practitioners and from engaging with medical practitioners about the children except with the express consent of the father.

(4)Without admissions, the mother is restrained from administering any prescription or non-prescription pharmaceuticals or any form of medicine, including vitamins and other like substance, to the children.
(5)Both parents are entitled to receive copies of all school reports, school publications, and school photo order forms for the children, and this Order shall be authority from the father to the school to provide such documents as requested.
(6)The father shall inform, and keep the mother informed, of his residential address.
(7)Only where necessary, the father and mother shall communicate with each other by email, in compliance with these orders.
(8)The mother and father are each restrained from saying rude, unkind, or unpleasant things, about the other parent or their family to, or in front of, the children.
(9)That, excluding for the purpose of complying with these Orders, the parties are restrained from contacting each other, or causing a third party to contact the other party (excluding solicitors).
Living Arrangements
(10)The children shall live with the father.
Communication
(11)The father shall enable the children to communicate with the mother by an audio-visual telecommunication service (e.g. skype, or similar) at 10.00am, on the first Saturday of any month in which the children are not due to spend face to face time with the mother, and the Skype call shall be up to one hour.
(12)The father shall enable the children to communicate with the mother by audio-visual telecommunication service (skype, or similar) on the mother’s birthday; on the day before each of the children’s birthdays; on Mother’s Day; on Easter Saturday and on Christmas Eve each year, at 6.30pm for 30 minutes.
(13)The father shall initiate the call to the mother in accordance with these orders, and the father is to take all reasonable steps to encourage the children to engage with the mother and, without admissions, he will not negatively interfere in the flow of the conversation.
(14)The mother shall be at liberty to send presents to the children for their birthdays, Easter Sunday and at Christmas, and the father shall ensure the children receive those presents and are told they are from the mother. The mother shall limit the number of presents sent to the children to no more than 5 presents per child at any one time, and the mother may send 1 present to the child not celebrating the occasion (i.e. the mother can send 1 present to X on the twins’ birthday, and 1 present to Y and 1 present to Z on X’s birthday).
Face to Face Time
(15)The children shall spend time with the mother on one occasion every eight weeks supervised by J Contact Centre (City K) (“J Contact Centre”), on a Saturday at such times that J Contact Centre can facilitate through their publicly funded 2 hour supervised service, and the parties shall do all such things as are necessary to maintain their access to the J Contact Centre publicly funded 2 hour supervised service.
(16)At any time from the commencement of these orders, if the publicly funded supervised J Contact Centre service is not available in accordance with Order 15, the mother, at her sole cost, and sole discretion, can elect to continue the eight weekly visits using the privately funded supervised J Contact Centre service.
(17)The father shall ensure the children are delivered to J Contact Centre at the times specified by that organisation, and in the event that J Contact Centre provides multiple options as to what time the Saturday session commences, the father in his sole discretion, is at liberty to elect the commencement time.
(18)The father shall ensure the children are freshly showered, prior to them getting in the car to travel to City K to spend time with the mother, and the father will take reasonable steps to avoid the children interacting with cats on the day they are to spend time with the mother.
Photographs
(19)That the Father will take at least one group photograph, clearly showing all the Children’s faces, once per month, and the Father will email the photograph/s to the Mother by the last day of the calendar month.
Review of Arrangements
(20)That the mother may submit to an independent psychiatric assessment, involving the provision of a written report. In the event she does so she shall ensure the psychiatrist is provided with copies of the reports previously prepared by Dr C; Dr D; Ms H; the father’s affidavit affirmed 1 June 2018, and the mother’s affidavit affirmed 29 May 2018, and the mother shall make available to the psychiatrist any further material requested by the psychiatrist.
(21)The mother must serve a copy of any such psychiatric report on the father by email or by post.
(22)Both parties have liberty to apply to vary all Orders except 1, 2, and 10 on one occasion upon the completion of Orders 20 and 21, and this will be the occasion referred to in Notation A.
(23)Both parties shall do all such acts and things as are necessary to give effect to these Orders.
Notation:
A.That notwithstanding the authority of Rice v Asplund, that once the Mother has complied with Orders 20 to 21, that the parties be at liberty to seek a variation of all Orders except 1, 2, and 10 on one occasion without demonstrating there has been a significant change in circumstances since these Orders were made and neither party shall raise that as a reason the Court should not hear the application.
B.The parties agree that signing of these Orders is in no way an admission by either party of any allegations that may have been made by either party against the other throughout these proceedings.

File number(s):	CAC 2603 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	15 December 2022
Catchwords:	FAMILY LAW – Parenting – Application to re-open proceedings following final consent Orders being made in 2018 – Consideration of Rice v Asplund principles – no sufficient change in circumstances to qualify re-opening proceedings – re-commencing litigation not in the best interests of the children – Application dismissed with an Order for costs in favour of the Father – Potential conflict of interest.
Legislation:	Evidence Act 1995 (Cth) s. 79 Family Law Act 1975 (Cth)
Cases cited:	AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Banham v Banham (2021) 64 Fam LR 361 Birkett & Birkett [2017] FCCA 2503 Carriel v Lendrum (2015) 53 Fam LR 157 Charisteas & Charisteas [2022] FedCFamC1A 160 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 Honeysett v The Queen (2014) 253 CLR 122 Jacobs (a Pseudonym) v The Queen [2019] VSCA 285 Jones Dunkel (1959) 101 CLR 298 Marsden v Winch (2010) 42 Fam LR 1 Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654 Mahoney & Dieter [2020] FamCAFC 88 Poisat & Poisat (2014) FLC 93-597 Porter v Dyer (2022) 402 ALR 659 Rice & Asplund (1978) 6 Fam LR 570 Shan & Prasad (2020) 61 Fam LR 440 Sidhu v Van Dyke (2014) 251 CLR 505 SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295 Stephens v Stephens (2011) 44 Fam LR 117 Swenson & Brantley (No.2) [2020] FamCAFC 205 Spencer v Commonwealth (2010) 241 CLR 118 Walter & Walter [2016] FamCAFC 56
Division:	Division 2 Family Law
Number of paragraphs:	153
Date of hearing:	24 November 2022
Place:	Canberra
Counsel for the Applicant	Mr I Duane
Solicitor for the Applicant	Farrar Gesini Dunn
Counsel for the Respondent	Ms R Curran
Solicitor for the Respondent	Robinson + McGuiness

CAC 2603 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HALLORAN Applicant
AND:	MR KEATS Respondent

order made by:	JUDGE W J NEVILLE
DATE OF ORDER:	15 december 2022