Mann & Prewett - [2009] FamCA 929

FAMILY COURT OF AUSTRALIA

MANN & PREWETT

[2009] FamCA 929

FAMILY LAW – CHILDREN – Application of the rule in Rice v Asplund (1979) FLC 90-725 – final orders made by consent in March 2008 – final orders permitted the mother to temporarily relocate and provide for her return – mother now residing with new partner and seeks to permanently relocate – mother asserts she can no longer afford to live in Sydney and would be separated from her partner – no sufficient change in circumstances – mother’s application dismissed

Family Law Act 1975 (Cth)

Hartnett v Sampson (No. 10) (2008) FLC 93-350
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Ms Mann

RESPONDENT:

Mr Prewett

FILE NUMBER:

SYC

645

2008

DATE DELIVERED:

24 September 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

11 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney

COUNSEL FOR THE RESPONDENT:

Mr Schonell

Orders

The mother’s Application filed 24 April 2009 and amended on 4 June 2009 be and is hereby dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 645 of 2008

MS MANN

Applicant

And

MR PREWETT

Respondent

REASONS FOR JUDGMENT

Introduction

In the current proceedings before the Court the mother seeks to vary parenting orders made by consent on 5 March 2008. The question arises whether upon the application of the principle in Rice v Asplund (1979) FLC ¶90-725 the mother’s application should be dismissed.

Background facts

The father was born in 1967 and is aged 42 years.
The mother was born in 1970 and is aged 39 years.
The parties married in March 2004.
In June 2004 the parties’ daughter, X, was born and is aged 5 years.
The parties finally separated on 14 February 2005. At this time the mother resided in a property at B in Sydney.
In mid 2006 the child commenced attending at the day care centre at E where she remained for a period of 18 months until January 2008.
In 2007 the mother’s partner, Mr C, established his business in the Southern Highlands area and thereafter operated the business.
In mid 2007 the mother sold her business and was thereafter unemployed.
In December 2007 the mother entered into a lease in respect of premises known at M for a period of 12 months commencing on 2 January 2008.
In January 2008 the mother and child commenced residing at M. Thereafter and until 6 February 2008 the father attended in M for time with the child by informal agreement.
On 2 January 2008, before moving to M, the mother enrolled the child in day care at G Centre in M.
On 6 February 2008 the father commenced proceedings in the Federal Magistrates Court in Sydney.
On 25 February 2008 Interim Parenting Orders were made by Federal Magistrate Altobelli.
Those Orders provided:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The parents have equal shared parental responsibility for the Child [X], born […] June 2004 (“the Child”).
2.        The Mother [Ms Mann] is restrained from:
a.Relocating the Child to [M] or to any other location outside the Eastern Suburbs of Sydney; and
b.Enrolling or causing or permitting the continued enrolment and attendance of [the child] at any Day Care Centre or pre-school outside the Eastern Suburbs of Sydney; and
the Mother is to do all things necessary to implement this order no later than 3 March 2008.
3.In the event the Mother elects to reside in [M] or otherwise outside the Sydney Metropolitan area, [the child] live with the Father in Sydney, and spend time with the mother as follows:
a.Each alternate weekend from 4.00pm on Friday until 11.00am on Monday; with the Mother to collect [the child] from the Father at the commencement of such weekend and return [the child] to the Father at the conclusion of such weekend;
b.Each Wednesday at 10.00am to Thursday at 5.00pm (at the Mother’s election) provided that the Mother collect the child from, and return the child to, the Father.
c.On any further periods agreed between the parents from time to time.
4.In the event that the Mother elects to return to Sydney and reside in Sydney (mother’s alternative election”) which election shall be evidenced by the mother relinquishing, or otherwise sub-letting, the premises she presently leases in [M] in the Southern Highlands of New South Wales (or as the parties agree) then the child [X], immediately upon the resumption of residence in Sydney, is to spend time with the father on the following basis:
a.During the first week of the fortnight; from 10.00am Thursday until 5.00pm Friday;
b.During the second week of the fortnight, from 10.00am Thursday until 10.00am on the following Monday; and
c.For one week during each of the autumn, winter and spring school holidays in 2008 being the first week of such holidays unless the parties otherwise agree;
d.For two weeks during the summer school holidays in 2008 being the last two weeks unless the parents otherwise agree;
e.Where Father’s day falls on a weekend where the Child is not living with the father, the mother shall cause the child to be delivered to the Father at 6.00pm on the Saturday preceding Father’s Day and the Father will return the Child to the mother at 9.00 am on the following Monday;
f.If the Child’s or the Father’s birthday falls on a day when the Child is living with the Mother, then the Father will spend time with the Child for a period of up to four (4) hours on that day, such hours to be agreed between the parents, but failing agreement to be from 3pm to 7pm;
g.On Mother’s Day the Father’s time with the Child is suspended from 5.00pm on the day preceding Mother’s Day.
5.        The Child live with the mother at all other times.
6.Within 14 days of this order the parents do all thing necessary to consult an appropriately qualified person to advise them about whether [X] is developmentally prepared and suitable for pre-school in 2008, and if so for what period each week. If the parents are unable to agree about whether [X] is ready for pre-school in 2008, they will abide by the recommendations made by the qualified person above, and do all things necessary to implement the same. The Father is to pay the costs of [X’s] attendance at pre-school or day-care as the case may be. The parents are otherwise to share equally in the costs of implementing this order.
7.If the Mother resides within the Eastern suburbs of Sydney, in order to give effect to these orders the father is to collect the child at the commencement of time spent with [X], and the Mother is to collect the child from the Father at the conclusion of the time [the child] spends with the Father, except where the child is to attend pre-school or day care in accordance with these orders in which case the Father is to deliver her to pre-school or day-care as the case may be.
8.The matter be adjourned to 18 June 2008 at 10am for a two day final hearing.
9.Each party file and serve all affidavits on which they intend to rely at hearing by no later than 4 June 2008. No further affidavits to be filed after that date without leave of this Court.
10.The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.
11.No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
a.        The affidavits on which the party will rely at hearing;
b.        The Orders sought at hearing;
12.The parties have liberty to apply on 7 days notice with regards to the interpretation, implementation or enforcement of these orders.
On 5 March 2008 Final Parenting Orders were made by consent.
Those orders provided:
By consent and by way of final orders (parenting) it is ordered:
1         That the orders dated 25 February 2008 be discharged.
2That the parents have equal shared parental responsibility for the child, [X], born […] June 2004 (“the child”).
3         That the child live with the father as follows:
(a)      Between the date of these orders and 1 June 2009:
(i)9.30 am Thursday to 3.00 pm Friday every alternate week, the mother to deliver the child to the father’s residence in Sydney on a Thursday and to collect the child on a Friday from the child’s pre-school (such pre-school to be in Sydney and as agreed by the parents);
(ii)every other week from 9.30 am Thursday to
11.00 am Monday, the mother to deliver the child to the father’s residence in Sydney on Thursday and the father to return the child to the mother’s residence in [M] on Monday.
(iii)Where Father’s Day falls on a weekend when the child is not living with the father, the mother shall cause the child to be delivered to the father’s residence in Sydney at 6.00 pm on the Saturday preceding Father’s Day and the father to return the child to the mother’s residence in [M] at 11.00 am on the following Monday.
(iv)If the child’s or the father’s birthday falls on a day when the child is living with the mother, for a period of up to 4 hours on that day, such hours to be agreed between the parents, but failing agreement to be from 3.00 pm to 7.00 pm, the father to collect the child from pre-school or from the mother and return her to the wife’s residence in [M];
(v)6.00 pm 23 December to 8.00 pm 24 December, the mother to deliver and collect the child to and from the father’s residence in Sydney;
(vi)Such variations as agreed in writing between the parents.
(b)From 1 June 2009 to the time that the child commences school in January/February 2010:
(i)After pre-school Wednesday to 3.00pm Friday every alternate week, the father to collect the child from pre-school on Wednesday and the mother to collect the child from pre-school on Friday;
(ii)Every other week from 9.30 am Thursday to
11.00 am Monday, the mother to deliver the child to the father’s residence in Sydney on Thursday and the father to return the child to the mother’s residence in [M] on Monday.
(iii)Where Father’s Day falls on a weekend when the child is not living with the father, the mother shall cause the child to be delivered to the father’s residence in Sydney at 6.00pm on the Saturday preceding Father’s Day and the father to return the child to the mother’s residence in [M]
11.00 am on the following Monday.
(iv)If the child’s or the father’s birthday falls on a day when the child is living with the mother, for a period of up to 4 hours on that day, such hours to be agreed between the parents, but failing an agreement to be from 3.00 pm to 7.00 pm, the father to collect the child from pre-school and return her to the wife’s residence.
(v)6.00 pm 23 December to 8.00 pm 24 December, the mother to deliver and collect the child to and from the father’s residence in Sydney.
(vi)Such variations as agreed in writing between the parents.
4         That order 3 be suspended during:
(a)Pre-school holidays and that during said holidays the child live with the father for the first week of the autumn, winter and spring school holidays in 2008 and 2009 and for 2 weeks as agreed in the summer school holidays in 2008 and 2009 and failing agreement, the last 2 weeks of the said holidays;
(b)From 6 pm on the Saturday preceding Mother’s Day until 9.30 am Thursday;
(c)      Mother’s birthday;
(d)8.00 pm 24 December to 10.00 am 27 December, the mother to collect the child from the father’s residence and the father to return the child to the mother’s residence;
(e)      Such variations as agreed in writing between the parents.
5From the time that the child commences school in 2010 that the child live with the father as follows:
(a)Every alternate week from after school Thursday to before school Monday (before school Tuesday in the event of a long weekend) the father to collect the child from school on a Thursday and return the child to school on a Monday (or Tuesday in the event of a long weekend).
(b)Every other week from after school Thursday to before school Friday, the father to collect the child from school on Thursday and return the child to school on Friday.
(c)The first half of all school holidays every even year, commencing 2010 and the second half of all school holidays every other year, commencing 2011, unless as otherwise agreed between the parents.
(d)6.00 pm 23 December to 8.00 pm 24 December, the mother to deliver and collect the child to and from the father’s residence in Sydney.
(e)Where Father’s Day falls on a weekend when the child is not living with the father, the mother shall cause the child to be delivered to the father’s residence in Sydney at
6.00 pm on the Saturday preceding Father’s Day and the father to return the child to the child’s school at commencement of school on the following Monday.
(f)If the child’s or the father’s birthday falls on a day when the child is living with the mother, for a period of up to
4 hours on that day, such hours to be agreed between the parents, but failing agreement to be from 3.00 pm to
7.00 pm, the father to collect the child from school and return the child to the mother’s residence.
(g)      Such variations as agreed in writing between the parents.
6That the father’s time with the child be suspended at such times as the child lives with the mother:
(a)      During school holidays;
(b)From 6 pm on the Saturday preceding Mother’s Day until 9.30 am Thursday;
(c)For up to 4 hours on the mother’s birthday, such hours to be agreed between the parents, but failing agreement to be from 3.00 pm to 7.00 pm, the mother to collect the child from pre-school or from the father and the mother to return the child to the father’s residence;
(d)8.00 pm 24 December to 10.00 am 27 December, the mother to collect the child from the father’s residence and the father to return the child to the mother’s residence;
(e)      Such variations as agreed in writing between the parents.
7That unless otherwise agreed, the father’s time with the child following the conclusion of school holidays shall recommence after school holidays as follows:
(a)When the child lives with the father during the first half of school holidays, on the first Thursday of school term and then in accordance with order 5 (b) hereof;
(b)When the child lives with the father during the second half of school holidays, on the first Thursday of school term and then in accordance with order 5 (a) hereof.
8Unless otherwise agreed the changeover in the middle of school holidays shall be midday of the mid-point of the school holidays, the mother to collect or deliver the child to or from the father’s residence in Sydney.
9         That the child live with the mother at all other times.
10That the mother be permitted to reside with the child in [M], other than when the child is living with the father, until mid-January 2010, at which time she and the child shall return to Sydney.
11That the mother be restrained from enrolling the child in day care, pre-school or school outside the Eastern Suburbs of Sydney, unless otherwise agreed in writing.
12That within 7 days of the date of these orders that the parents do all acts and things and sign all necessary documents in order to enrol the child in a pre-school in the Sydney Eastern Suburbs on Wednesday and Friday of each and every week of the pre-school term (or as otherwise agreed).
13That within 2 months of the date of these orders that the parents do all acts and things and sign all necessary documents in order to enrol the child into [S School] or such other private school as agreed.
14That the father pay the cost of all pre-school fees and private school fees and school expenses relating to the child.
15That the parents have liberty to apply on 7 days notice with regards to the interpretation, implementation or enforcement of these orders.
16That each party pay his/her own costs relating to these proceedings.
17Annexed hereto and marked “B” and “C” respectively are certificates signed by each parent’s lawyer certifying that no allegations of child sexual or other physical abuse or risk of abuse have been made in any document filed or exhibited in these proceedings, any report prepared for these proceedings, or any document subpoenaed to the court in these proceedings.
Thereafter the child was enrolled in day care each Wednesday and Friday, which necessitated the mother and child attending in Sydney on those days at which time they resided at the mother’s mother’s residence sharing a room with one of them sleeping on the floor.
In April 2008 the mother commenced a romantic relationship with Mr C.
In May 2008 Mr C commenced to reside with the mother in the M property.
On 10 October 2008 the mother received a termination notice in respect of her occupancy of the M property requiring vacant possession by 1 January 2009. Thereafter the mother commenced to look for alternate premises but was unable to find suitable premises for leasing.
In November 2008 the mother and Mr C entered into a contract to purchase a different property at M (M2 property). The property was purchased using funds obtained by way of a mortgage advance of $400,000.
On 22 November 2008 a Decree of Divorce was pronounced.
On 1 December 2008 the mother, Mr C and the child commenced to reside in the M2 property.
In late 2008 the father unilaterally enrolled the child in day care on Thursdays (in addition to Wednesdays and Fridays in accordance with the Court orders).
In late January 2009 the mother was confirmed as being pregnant.
In April 2009 the mother asserted that during the period leading up to Easter 2009 there was agreement between the parties that the child would be with the mother during that period.
On 8 April 2009 the mother received court documents filed by or on behalf of the father.
On 10 April 2009 the mother delivered the child to the father in accordance with the Orders of 9 April 2009.
The mother subsequently suffered a miscarriage.
In her case outline document the mother made the following submissions.
6.1The Mother contends that the Court ought not accede to the Father’s application having regard inter alia to:
6.1.1.the effect on [X] of a hearing of the Mother’s application;
6.1.2.the changes of significance that have occurred since the entry of the Orders of 5 March 2008;
6.1.3. the effect of the Orders entered on 30 June 2008; and,
6.1.4.a consideration of the evidence sought to be advanced by the mother in the context of the best interests of the child.
...
6.6 The mother contends that:
6.6.1the Court would not be satisfied that it is in [X’s] best interests for the dismissal of the proceedings now; and,
6.6.2the issues raised in the proceedings are such that it is in the best interests of [X] that such issues be resolved on a ‘full hearing’ rather than a determination on a summary basis as is essentially sought by the father.
The mother further submits:
6.7The effect on [X]. Unlike many proceedings in which the ‘rule’ in Rice v Asplund is often invoked, neither [X] nor the parties have been involved in any prior parenting proceedings of substance or duration. Thus, [X’s] involvement in such proceedings to date have been minimal and (without derogating from the significance of any involvement) marginal.
6.8The effect on [X] of a continuation of the present proceedings would, at least in a procedural sense, be limited at most to participation in some form of expert’s assessment.
6.9As is set out below, however, it appears incontrovertible that [X] has been at least indirectly involved in the broader dispute between the parties which has arisen and continued as a result of deficiencies in the present parenting Orders. These difficulties for [X] are likely to continue, if not be exacerbated, if the proceedings are dismissed and the existing Orders remain.
There remains little doubt in my mind that a continuation of these proceedings is not in the interests of this child albeit that it is asserted that her prior involvement was “indirect”. The continuation of a dispute between parents is not in the interests of a child, including this child. Including the present application there have already been a total of some six applications to this Court and the Federal Magistrates Court, and the litigation has to have an end. If the matter was to proceed the child would be involved directly in the procurement of family reports and if not already aware of the dispute, which is unlikely, would soon become so aware.

The question remains whether the disadvantage to the child of further litigation is warranted by a consideration of those matters which the Court is obligated to take into account in matters such as these and in particular the changes which have taken place since the order was originally made.
6.10 Further, [X’s] interests compel a proper consideration of the Mother’s application to (in effect) remain resident in [M] having regard to the effect any ‘forced’ return of the Mother to Sydney is likely to have on each of the Mother and [X]: R & R (1998) FLC 92-820; Taylor v Barker (2007) FLC 93-345; Whiting (unreported, Bryant CJ, Finn and Thackray JJ, 22 October 2008) which would be the necessary result of the father’s application if granted.
The issues of the mother’s place of residence were clearly in issue at the time of the orders being made. There was a desire expressed by the mother to remain living in M. Notwithstanding that expressed desire she consented to orders in the terms set forth above. She must be taken as thinking that those orders best served the interests of her child. The Orders clearly and unequivocally provided for the return of the mother and the child to Sydney. She consented to them and there is no issue of a “forced return”. The mother is bound by an order she freely, and with the benefit of legal advice, procured the Court to make and that order reflected her consent to a return. The Court must be taken as finding that the Order was in the best interests of this child. One does not create a change in circumstances by, as it were, stamping one’s foot and saying that ‘I want what I always wanted, and I should have it because I want it’.
The mother sets out the following in her written submissions:
6.11The changes in circumstances. The Orders of 5 March 2008 were entered by consent rather than as a result of any judicial determination following the adducing of evidence (including any expert evidence). Such an observation does not seek to deny the force and effect of the Orders but rather to highlight that there is not available to this Court any reasons for the entry of the Orders and the evidence upon which the Orders might have been based (the first of the matters raised by the Full Court for attention in Marsden V Winch, supra at 50).
Whilst it is true that the orders were entered into by consent they were entered into after proper discussion in which the parties had advice and where the relative positions of the parties were clearly before the Court. It must be assumed that the parties in making the agreement and asking the Court to make orders, accepted the fact that those orders best served the interests of the child and resolved their dispute accordingly, and that the Court must also have accepted that.
At the time of the Orders the mother’s case outline document notes that:
6.12.1the Mother was restrained by injunction from living other than in Sydney with [the child], the Orders permitting relocation to [M] until 2010
6.12.2 the Mother was not in any relationship; and,
6.12.3the Mother remained in substantial financial dispute with the father, her then and prospective financial position being undetermined and uncertain.
The mother’s case outline provides the following under each heading.
6.13 Subsequent to the entry of the Orders:
6.13.1[The mother] and the mother have settled in [M], acquiring property, establishing a network of friends, regular activities and interests including horse-riding, ballet and the like
The original orders made clear that on terms and for a limited time the mother would live in M. That the mother made friends and established networks is not surprising but she did so in the full knowledge of the obligations she had undertaken under the terms of the Orders.
6.13.2 The Mother and Father have resolved their financial relationship, including the Supreme Court proceedings in which they were involved, and the Mother’s financial position has crystallised. The mother is unable to afford to live in many parts of Sydney.
It was not suggested that the mother could not afford to live in other parts of Sydney. On the basis of the evidence submitted and taken at its highest I do not find that the mother could not afford to live in Sydney.
6.13.3 the mother has entered into a relationship and commenced to reside with [Mr C]. [The child], the Mother and Mr [C] have formed a family unit in which [the child] has resided for substantial periods of time since approximately May 2008;
6.13.4the mother and [Mr C] have purchased a home in the [M] area;
6.13.5the mother has become financially dependent upon Mr [C], having remained unemployed since the entry of the Orders;
6.13.6there have arisen considerable difficulties in relation to the interpretation and implementation of the Orders; and,
6.13.7there has been a substantial deterioration in the relationship between the Mother and Father.
…
6.16As a consequence of the above changes, and a broader consideration of [X’s] interests (as canvassed below) it is submitted that it should not be found to be in [X’s] best interests for the proceedings to be dismissed without more.
The formation of a relationship between the mother and her partner is not in my view so significant a change in circumstances as gives rise to a need to

re-litigate the matter. There is no problem asserted in the relationship between the child and the mother’s partner.
That the mother and her partner have purchased a property as a joint venture may say something for the strength of the relationship but the purchase was made in the full knowledge and understanding of the obligations created by an order. It is my view that it is not a change which in the circumstances warrants a re-litigation of the matters the subject of the consent order. If the relationship between the mother and her partner is as strong as is suggested then it will be strong wherever the parties live.
The mother was unemployed at the time the orders were made. She had certain funds and procured more on the finalisation of the property settlement. She has a significant interest in the real estate which she owns. Her financial dependence on others is therefore not a change in circumstances.
That there have been differences between the parties as to what the orders mean. That can be remedied by an application to the Court for declarations as to what they mean and, on the evidence before me, I do not consider that such differences as have arisen are such as to warrant the matter of the arrangements for the care of the child to be again litigated.
6.17 The effect of the Orders. This issue arises for consideration in two respects:
6.17.1the basic effect of the Orders in compelling the relocation of the Mother and child to Sydney having regard to both authority (addressed below) and the effect on Mother and child
(as addressed above); and,
6.17.2 the deficiency in the Orders as presently drafted.
6.18Order 10 purports to require both the mother and child to live in Sydney by mid-January 2010. In Hartnett v Sampson (No. 10) (2008) FLC
93-350 the Full Court left open the question of whether there exists any power pursuant to the Family Law Act 1975 to order a person to so relocate. It is submitted that no such power is reposed in the Court by the relevant legislation and to such extent as the Orders purport to so require the mother, the Orders are ultra vires.
6.19In any event, the Full Court in Hartnett v Sampson (No. 10) made it clear that if such a power did exist it ought only be exercised in compelling if not exceptional circumstances.
The plurality in Hartnett and Sampson (No 10) (supra) held that the power did exist but should only be exercised in compelling circumstances. It cannot be said that they do not exist when the mother and the father consent to an order in those terms. Indeed, what could be more compelling in relation to such an order than that the parties gave their agreement and asked the Court to do likewise and each of them presumably went their way knowing and accepting that that was an obligation which bound the mother, to the benefit of this child.
6.20 The effect of granting the Father’s application would be to retain the obligation upon the Mother arising pursuant to Order 12. It is submitted that such conclusion leads to:
6.20.1a need to carefully consider the nature and validity of the obligation to which the Mother and child will then be prima facie subject, including whether performance of the obligation is in [X’s] best interests; and,
6.20.2a need to consider whether, having regard to the above decision which post-dated the Orders, the effect of the Orders and the variation sought by the mother is more properly considered from [X’s] perspective in the context of the present proceedings rather than in any other context which might arise (for example, on an application for leave to appeal that order).
There is no evidence before me which in my view indicates that a performance of the obligation of the mother to comply with the orders to which she consented would not operate to further the child’s best interests. Such compliance would render easier the continued development of the child’s experience with the father and afford him by reason of geographical proximity the opportunity to fulfil his obligations to the child and contribute in the context of his joint parental responsibility in a real and effective way to the child obtaining her maximum potential.
The consideration of the case the mother now makes is clearly based on the best interest principle guided by a consideration of those matters set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”) instructed by the other provisions of the Act as to the role and function of parents and the need to facilitate their ability to fulfil their obligations to their progeny.
6.21 There is a further deficiency in the Orders in that the obligation imposed by Order 12 is to “return to live in Sydney”. The geographical bounds of “Sydney” are such that the difficulties inherent in such an order, and the potential for issues as to compliance and that which is in [X’s] best interests, are self-evident.
If there is ultimately a dispute as to whether the mother has complied with the order that can be resolved without re-litigating the parenting issues. It seems to me that I should not take into account things that might happen or be caused to happen for which there is no current predictor.
6.22 It is submitted that the Orders are in their terms such as to demonstrate that it is not in [X’s] best interests to dismiss the present proceedings.
I do not agree with this submission. Continued dispute about a child is a significant detriment to her welfare. Equally, it is not in a child’s interests that her parents be encouraged to engage in multiple litigation in this Court. Parties to marriage relationships who enter into consent orders (which in themselves are seen as an advantage to children) are entitled to hold the not unreasonable belief that as orders of the Court they will be complied with. In addition, there ought to be a reasonable expectation that an agreement once made will be complied with. That fulfilment of those reasonably held beliefs should be supported in the interests of encouraging what is a clear policy of the Court to encourage parties to come to parenting agreements which will not lightly be set aside. They ought to be encouraged for the benefit of all children but also for particularly the benefit of this child. To do otherwise would be to wreak continuing havoc upon children. Having said that, it is also clear that the Court must not hesitate to permit a matter to be re-litigated where it can see clear reasons in the interests of the child to do so. In my view such reasons do not exist in this case.
Dealing with the various matters raised in section 60CC.
6.23 Best interests. It is recognised that the determination of the Father’s application is not one confined to the above considerations. It is one that requires consideration of that which is in [X’s] best interests, both in conjunction with and informed by the matters already outlined above.
6.24Recognising the nature of the enquiry arising on the Father’s application, the following matters arise for consideration pursuant to section 60CC.
I turn to the matters referred to in section 60CC.

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

6.25 There appears no issue that it is to the benefit of the child to have a meaningful relationship with each of the parents and as much is reflected in the present Orders and the Mother’s substantive application.
It is clear that it is to the benefit of this child to have a meaningful relationship with each of her parents. The relationship with each of them will be maintained and strengthened by the child having time with each of them in circumstances where each of them are able to contribute not only to the child’s weekend life but also to the child’s weekly life generally and her school life and education in particular. Such contribution will for the benefit of this child to be able more freely to be made in the event of compliance with the orders and it is not unreasonable to assume that this was the basis for the consent order. It seems to me likely that that opportunity will be diminished or made difficult by the orders the mother now seeks. It also seems to me that the orders which were made by consent serve the child’s interests well in that regard and that there is no indication of events of sufficient significance since their making which would require a consideration of a departure from them.
6.26 The difficulty which arises in the event that the Father’s application succeeds is that there may well be a discernable impact upon [X’s] relationship with both parties in the event that the mother is compelled to relocate to Sydney:
6.26.1in respect of her relationship with the father – inter alia as a consequence of the parties remaining geographically apart with the added burden of [X’s] commencement of school and any feelings that [X] might have vis-à-vis the father in the event of her forced return to Sydney (notwithstanding the Mother’s best endeavours to shield her from the same); and
6.26.2in respect of her relationship with the mother – inter alia as a consequence of the probable impact upon the mother of a forced relocation away from her home and partner.
It is not open to me to assume that the mother’s partner will necessarily remain in the home which was bought in the full knowledge of the relocation required by the consent orders. The mother suggests that the relationship is strong and if that is so it does not seem to me that the suggestion made by the mother under sub paragraph 6.26.2 above has merit. The change of residence is not forced - it is the subject of a clear agreement and orders of this court already made. There is no predictor of the likelihood of 6.26.1 occurring. The case seems to be that the child probably, as with most children, loves each of her parents and I would have thought that subject to all the usual matters which go with a change in residence this child will settle down and enjoy the ability to express the love that she has for them and to benefit from her parents love for her in a meaningful way. I do not think that it is likely that either of the above events will occur.
6.27 It is not suggested that the Court ought find that such matters will arise or occur, but rather it is in [X’s] best interests that such issues be permitted proper ventilation before the Court.
Clearly the Court will not find on the evidence before it that the matters referred to above will occur. In addition, I have come to the view that the ventilation of those issues in further litigation is likely to be more harmful to the child than compliance with the existing order which clearly both parties saw as and asked the court to accept (and it did accept) were in the interests of their child.

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

6.28 This consideration arises in the context of appreciating the effect on the child of further proceedings. For the reasons set out above, and given the limited nature of [X’s] likely involvement, it is submitted that this consideration does not support the Father’s application.
As I have already indicated children generally, and this child in particular, cannot be but adversely affected by dispute between two parents that they love. The daily expert evidence brought before this Court emphasises the short and long term disadvantage to a child of ongoing dispute of this type. It must be discouraged, in the interests of this child, and I do not agree that the active participation in the litigation is the only or even the most important part of a further litigating of this matter in its adverse effect on the child.
6.29 The matters set out above in relation to the possible effects upon [X] of a ‘forced’ return to Sydney and the difficulties inherent in the Orders support the conclusion that it is in [X’s] best interests for the matter to proceed.
I disagree with the proposition that the child’s return to Sydney is forced. It is far from that. It is a return the product of a consensual arrangement made with full advice after negotiation in which the parties saw, and the Court accepted, were in the best interests of their child. There do not exist any matters which to my mind represent so significant a change that the interests of the child would be served by re-litigating the matter. To the contrary, there is every possibility that not only will her interests not be served but there is every chance of positive detriment to the child in the short and the long term occasioned by that continuing dispute.

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

6.30 This consideration does not arise from the material.
I agree with this submission.

(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

6.31 The evidence discloses considerable reason to be concerned at a prima facie level should the proceedings simply be dismissed as the Father seeks. It is in [X’s] interests that the impact upon her relationship with both parents of the Orders be the subject of proper assessment and consideration by the Court.
For the reasons already set forth I disagree with this submission and reject it.

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

6.32 Whether the proceedings continue or not, the child will continue to spend time with each parent. The ability of the parents to facilitate such relationships will, however, depend upon a number of factors which include:
6.32.1 their respective places of residence; and
6.32.2 their ability to function in the environment in which they reside;
both of which issues will remain unaddressed in the event of summary dismissal.
The likely effect of change was considered and dealt with in the Orders and there are no significant events which have since occurred which, in my view, justify the necessity for these matters to be reconsidered.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

6.33 This is a factor of some significance in these proceedings, compliance with the Orders involving a substantial change in [X’s] present family unit, home and social environment and a separation from Mr [C].
I do not accept that it is likely that the child will be indeed separated from

Mr C who, on the documents tendered, has his primary business activity in Sydney. In any event it seems to me that Mr C can continue to maintain an appropriate relationship with the child should he choose to continue to live in M consistent with his role as a step-parent and the father will have an opportunity to fulfil to the extent thought appropriate in the Orders, his role as a parent.
6.34 It is submitted that the Court ought not find it to be in [X’s] interests to dismiss the mother’s application without further enquiry as to these matters.
I decline to accept this invitation.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

6.35 The Mother repeats the above submissions. This issue also weighs against the Father’s application in circumstances where the mother is confronted with real financial difficulties in residing in Sydney, particularly in the Eastern Suburbs of Sydney.
For reasons already outlined I reject this submission.

(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

6.36 As outlined above, there are real issues as to the impact upon each of the Mother and the child of compliance with the Orders. It is in [X’s] best interests that the Court be in a position to properly and fully assess such issues before a determination as to the parenting orders to be entered (or retained).
I disagree that there are real issues. The mother has entered into arrangements for the child’s care in terms of the orders made. In my view there is no reason to subscribe to a proposition that in the circumstances that now exist it is in X’s best interests that the Court make further assessments and permit the issues put to rest by the consent orders to be re-litigated.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

6.37 The mother repeats the above submissions.
I will not further deal with them here.

(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

6.38 This factor is not relevant.
I agree.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

6.39 There is substantial issue between the parents as to the attitudes demonstrated one to the other since the Orders and, in particular, in relation to their respective involvements with [the child]. Such issues will not be resolved by summary dismissal, particularly to the extent such issues stem from difficulties with the present Orders.
This proposition seems to suggest that if a person does not comply with an order or disagrees with its interpretation that is a basis for overthrowing it or at least having a further hearing about whether it should continue to be the relevant governor of their child’s parenting regime. Disputes arise from time to time of this nature. They are on the periphery of the real purpose of this order - a purpose which was agreed between the parties and I do not agree that those disputes or lack of understanding in this case is sufficient to warrant a

re-litigation of the issues between the parties.

(j) any family violence involving the child or a member of the child’s family

6.40 This factor is not relevant.
I agree.

(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

6.41 This factor is not relevant.
I agree.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

6.42 It is submitted that the summary dismissal of the Mother’s application is unlikely to resolve the continuing disputes between the parties. There are serious deficiencies and uncertainties with the present Orders which require resolution and it is contended that this is most appropriately done at this time rather than in any other forum, including in response to or upon any contravention applications.
I do not agree that any differences which do exist are such as warrant a reconsideration of the orders. If that were the case, disobedience of an order could be engineered by a party for the purpose of artificially creating a circumstance which permits of a further attempt to achieve what was the subject of a claim in litigation which produced a settlement of that claim.

(m) any other fact or circumstances that the court thinks is relevant

6.43 The Mother repeats the matters outlined above.
6.44Conclusion. It is submitted that the material before the Court demonstrates that there are both:
6.44.1significant changes in [X’s] circumstances which warrant a reconsideration of the Orders, and a judicial determination as to that which is in [X’s] best interests; and,
6.44.2significant issues with the existing Orders which mean that it is preferable that the Orders be addressed in the present proceedings, permitting a timely disposition of all issues prior to [X’s] commencement at school in 2010.
[sic] such that the Court could not be satisfied that dismissal of the proceedings at this time is in [X’]s best interests.
I do not agree with either proposal 6.44.1 or 6.44.2 above.
I am satisfied that an order dismissing the proceedings is in the interest of X and I propose to so order.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 24 September 2009