Masters and Gaskell

[2016] FCCA 2401

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASTERS & GASKELL [2016] FCCA 2401

Catchwords:
FAMILY LAW – Rice and Asplund principle – consent orders made after extensive cross-examination – issues regarding father’s mental health, insight and animosity towards the mother and her family – no change of circumstances.

Legislation:

Family Law Act 1975, s.65D(2)

Cases cited:

In the Marriage of Rice and Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
Marsden & Winch [2009] FamCAFC 152
Reid & Lynch [2010] FamCAFC 184
Freeman & Freeman (1987) FLC 91-857

Applicant: MR MASTERS

Respondent: MS GASKELL

File Number: MLC 4415 of 2011

Judgment of: Judge Harland

Hearing dates: 15 & 16 August 2016

Date of Last Submission: 16 August 2016

Delivered at: Melbourne

Delivered on: 15 September 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Goldthrop

Solicitors for the Respondent: Barbayannis Lawyers

ORDERS

1. The application filed 7 January 2015 be dismissed.

2. That the respondents file and serve written submissions on or before 6 October 2016 if she seeks to pursue her application for costs.

3. That the father file and serve written submissions and a financial statement in response to the respondent’s application for costs on or before 27 October 2016.

4. That the parties have liberty to apply to seek an oral hearing with respect to costs, such request to be made on or before 13 October 2016.

5. That the father be permitted to provide a copy of the reports of Dr D, Dr E, Mr T and these reasons to any counsellor and other medical professionals he may attend from time to time.

NOTATION

A.The orders made 26 July 2012 remain in full force and effect.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4415 of 2011

MR MASTERS

Applicant

And

MS GASKELL

Respondent

REASONS FOR JUDGMENT

1. The issue for me to determine is whether or not there are sufficient changes in circumstance to justify the Court revisiting the final parenting orders made in 2012. The mother says that the father has not established a change of circumstances and that his application should be dismissed pursuant to the principles referred to in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”).

2. On 8 April 2015 Judge Curtain made interim orders, listing matter for final hearing, ordering a family report, making trial directions and ordering that since time with the father be supervised by an agreed third party noting that it is currently being supervised by the mother and maternal grandmother. Due to the way the matter came before me I determined that it was appropriate that the parties and the family consultant be cross-examined.

History

1. The father is 37 years old. He appeared without legal representation in the previous and the current proceedings. The mother is 32 years old.

2. X was born on (omitted) 2011. He is now 5 years old.

3. The parties were in a short relationship in 2010. They did not live together apart from a few weeks at the end of the relationship. The relationship ended on 11 December 2010 after an incident of family violence perpetrated by the father against the mother. She was pregnant with X at the time.

4. Final parenting orders made by consent before Federal Magistrate Curtain (as he then was) on the 26 July 2012.[1] This was when the matter was listed for final hearing and the father had been cross-examined at some length before the case resolved. There was an Independent Children’s Lawyer representing X’s interests at the hearing.

   [1] His Honour will be referred to as Judge Curtain throughout the remainder of the judgment.

5. In addition the Court and the parties had the benefit of a family report prepared by Dr D dated 30 May 2012 and a psychiatric assessment of the father prepared by Dr E.

6. The father has never spent unsupervised time with X. When X was a baby the mother’s sister Ms N and the maternal grandmother supervised time between the father and X.

7. Interim consent orders made 29 June 2011 provided for Ms N to continue supervising time. This arrangement broke down. Further interim orders made on 30 November 2011 provided for the maternal grandmother and paternal grandmother to supervise the father’s time and also required the father to enrol and attend the supervised contact service at Berry Street children’s contact centre.

8. Further interim orders were made on 8 February 2012 providing for the father to have supervised time supervised by (omitted) home services and Berry Street children’s contact centre.

9. The final orders made on 26 July 2012 provide for the following:

   [1] The Mother be authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the child previously registered as X to X, and the said Registrar do register the child’s new name as X.

   [2] The Mother have sole parental responsibility for the child X born on (omitted) 2011 (“the child”).

   [3] The child live with the Mother.

   [4] The child spend time and communicate with the Father as follows:

   (a) through professional supervision at the expense of the Father or such other person nominated by the Mother for up to two (2) hours per fortnight, save that the Mother may give two (2) weeks notice and cancel up to three (3) visits per year for the purpose of taking holidays; and

   (b) such further or other times as agreed in writing.

   [5] For clarification of Order 4(a) herein there is no restriction on members of the Father’s extended family being included in visits, subject to the capacity of the supervisor to accommodate other persons.

   [6] The Mother and the Father keep each other informed of their contact emails addresses.

   [7] The Mother inform the Father as soon as practicable of any serious illness, accident or hospitalisation of the child.

   [8] The Mother provide the Father with the following:

   (a) copies of school reports (which may have the school name deleted); and

   (b) at least six (6) photographs of the child at various times and activities each six (6) months.

   [9] The Mother and the Father be and are hereby restrained from denigrating the other parent or extended family to or in the hearing of the child.

   [10] If the Mother proposes to change the child’s primary residence, then she is to give the Father no less than twenty-eight (28) days written notice of her proposal.

   [11] The Order of Hughes FM, dated 24 October 2011 appointing the Independent Children’s Lawyer be discharged.

   [12] All extant applications be otherwise dismissed.

The father’s attitude towards professionals involved in the case

1. In his family report dated 30 May 2012 Dr D expressed concerns about the number of times supervision had been ordered or attempted and noted that apart from Berry Street, problems have been reported in every case that were “quite clearly associated with the attitude is perceived to expressed by the father toward the supervisor.”

2. Dr D said he was impressed with the various courses and programs the father had attended but observed that it appeared that the father’s efforts were being undone by “the report tone of conversations he has had with significant persons in X’s life all related to his applications to the Court”.

3. Significantly he went on to say at [29]:

   [I]t seems to the writer  Mr. Masters is a man who focuses on sleights in a way that suggests he has a hypervigilance two errors or assumed insults against his person or a. How he typically reacts to these events is the area of concern to this writer as in the long run it is the safety and well-being of X that use of greatest concern …. There is about Mr. Masters a view of others that would seem he is only trying to do, and get others to do, what he thinks is the ‘right’ thing. This writer does not question his motives but does have concerns about how he relates to others with whom he has differences.

4. He goes on to state at [31] that the father:

   [I]mpresses as having very strong views about his ideas and a the seeming unwillingness to appreciate that he can sometimes be wrong or out of order even though he believes he is just being honest. This is not to say he does not sometimes say later that he has been wrong but at the time appears not to have given this idea much attention. There are also indications that when he is upset he harbours very strong reactions to frustrations that he thinks are unreasonable and biased against him.

5. In his report dated 24 July 2012 Dr E observed that the father “impressed as being a fairly intolerant man with a short temper and high expectations.”

6. Dr E was not satisfied that the father had an underlying psychiatric condition. He did say that the “pattern of anger and hostility fits within the realm of personality pathology. He is prone to becoming readily angered and he has previously been rather hostile in the matter when [sic] he expresses himself.”

7. He observed that the father had completed a men’s behavioural change program and had engaged in counselling which he had ceased due to financial constraints. He said: “[w]hilst I have some confidence that Mr Masters has actively engaged in positive change, I am also aware that personality is often quite rigid and resistant to ready change.” He recommended that the father continue with therapy and may also benefit from some parenting guidance.

8. Having had the benefit of considering all of the evidence including the oral evidence of the parties, I find that Dr D and Dr E have accurately assessed the father’s personality and the challenges he continues to face.

The father

1. There is no doubt that the father is dedicated to his son. He has undergone many hours of counselling and years of supervision.

2. It is also clear that the father struggles with how to deal with his emotions when people disagree with him.  The father was very keen to say that he did not have complaints about all the supervisors but it is clear that the father has been unhappy with almost every professional involved in this case.  The father emphasised that he did not have problems with the Berry Street contact centre. In focusing on this he misses the point. He cannot see the bigger picture. He has had issues with potential and actual supervisors who supervised outside of the confines of the supervised contact centre. In addition he complains about many other professionals involved in this case. The father is the common denominator.

3. The father commenced the current proceedings after the most recent professional supervisor Ms R had refused to continue supervision of the father. She swore an affidavit but was not available for cross-examination at the hearing. In those circumstances particularly, where the father sought to cross-examine her and takes issue with much of her affidavit I can only give it limited weight.

4. The affidavit the father filed with his initiating application focused on supervision by Ms R. He makes complaints about the supervisor debriefing the mother after the supervised sessions including telling the mother about a minor incident where X hurt himself at the park. He complains that this was interfering with parenting between the mother and himself. The father’s evidence made it clear that the father did not have an understanding of the role of the supervisor. A professional supervisor is there to ensure the child’s safety and report on the supervision. This often is done by way of written reports but also often may involve immediate feedback. If the supervisor had not told her about X’s minor injury straightaway and she heard about it from X (as would be likely) or the father, it would be likely that the mother would be concerned about whether the supervisor was properly performing her role.

5. The father appeared to have little appreciation of how his communication can come across to others. His affidavits, including affidavits in previous proceedings (which the father relied on) are littered with vitriolic comments and criticisms of various people, including the mother and her family and professionals involved in this case.

6. At times his email communication with the mother is vitriolic. For example in an email dated 10 November 2014 annexed to the father’s affidavit sworn on 7 January 2015 he complains that the mother did not send an email the day before and says:

   I like to think that X’s relationship with me is a high priority in your life. And that X will always come first in your life regardless of how busy you are. Surely you can spare 15 or so minutes out of your day to respond to an email. I couldn’t care less if you are growing a tail, let alone getting married. Be the mother to our son first and foremost. Don’t let this tardy, carelessness happen again. It doesn’t look good.

7. Reading that email, firstly it appears to be an overreaction to not receiving an email the day before. Also it could not possibly promote positive communication between the mother and himself. Predictably, it did not illicit a positive response. The father annexed her reply to his affidavit. She said:

   I’m going to ignore your jibes about mothering as you both know I am a fantastic mother and replying to an email late wouldn’t make anyone a substandard one anyway. We can put this down to frustration perhaps? … Just to let you know, regardless of if you care will not, X and I both very busy this and next week, if I don’t reply straightaway, please assume it is because I am mothering your son, not sitting on my phone or computer waiting for emails.

8. There are further email exchanges annexed to the father’s affidavit which address Ms R refusing to continue the supervision. The father felt aggrieved that she did not provide a recommendation within the time frame he says she agreed to. He expected the recommendation to be glowing. He complains that she was unprofessional and biased. The mother expressed concern that she was the fourth professional supervisor who has refused to continue supervising. The father says in those emails that he may have been offensive but not abusive. His correspondence shows that he still has the lack of insight referred to by Dr D and Dr E.

9. The father swore and filed a further affidavit on 30 October 2015 addressing the issue of change of circumstances. Since the 2012 proceedings the father had further counselling with Ms C for 13 hours between August 2012 and January 2015. Previously he had attended 50 hours of counselling. He also completed a parenting effectiveness training course.

10. He refers to his kidney disease. The original hearing of this case was postponed because the father underwent a kidney transplant. He also speaks about a change of employment and living arrangements. He moved in with his mother as he as undergoing dialysis and wanted to save money so he could move to a two bedroom flat and have X overnight at his home.

11. The father also talks about the stress and uncertainty surrounding the arrangements for him to spend time with X has had a detrimental effect on his physical and emotional wellbeing and had taken a financial toll on him. He then complains about the play centre. He then responds to Ms R’s affidavit.

12. He annexes a report from Ms C to his affidavit. He did not obtain an affidavit from Ms C. She was not available for cross-examination. In those circumstances the mother’s counsel objected to the report being relied on. In reality it does not advance the father’s case. If the father engages in further counselling he should provide that counsellor with a copy of the reports of Dr D, Dr E, Mr T and these reasons. I will make an order permitting him to do so.

13. The father has not filed any further affidavits.

14. During cross-examination the father complained that he was forced to consent to the final orders. He accused the mother’s former counsel of improper conduct. He also said he felt “cornered, bullied and berated” by both the mother’s counsel and Judge Curtain at the 2012 hearing.  There is nothing in the transcript which indicates this at all. Judge Curtain asked the father whether or not he consented to the orders after the matter had been stood down. The mother relied on the transcript of the hearing before Judge Curtain on 26 July 2012 given that the complaints the father makes with respect to the mother’s counsel appearing at that hearing Mr Nehmy and Judge Curtain I read the whole of that transcript. A limitation of a written transcript is that it is not possible to discern the use of the voice it is however an accurate record of what was said. Judge Curtain went to some trouble to explain to the father how the hearing proceeded and to ascertain from him the orders that he sought, and who he wished to cross-examine.  The cross-examination would have been difficult and confronting for the father but there is nothing in the questions Mr Nehmy put to the father, nor in the evidence Judge Curtain sought to clarify, which was inappropriate.  I am not aware of any complaints made by the father at the time. The father did not appeal the orders.

15. What is clear from the evidence, including the father’s own evidence that he has not gained the insight necessary for him to move forward. I accept that the father is genuine in his desire to spend more time with X and to develop a deeper and more meaningful relationship with him. When a person lacks insight it is difficult for that person to identify what changes they need to be made. These were questions the father asked the mother towards the end of his cross-examination of her.

16. The father needs to recognise that the mother has gone beyond what anyone would reasonably expect in terms of stepping in and supervising his time after the last professional supervisor stopped.

The mother

1. To her credit after the supervision facilitated by Ms R broke down the mother made arrangements to supervise the father’s time together with her mother. As I indicated to the father during the hearing this is not an order I would have made without the mother’s consent. Generally it is not optimal to have one parent supervise the other parent. It is entirely reasonable for the mother to have her own mother there for support particularly given the father’s hostile attitude towards both the mother herself and the maternal grandmother had given those circumstances it would be an entirely reasonable if they had refused to supervise. The father did not seem to appreciate this. This is consistent with the father’s lack of insight more generally.  

2. The mother says that the father has not shown any change of circumstances. He is still angry. An example of this is an email he sent to her on 26 January 2015 in response to photos of X the mother sent him pursuant to Court orders.  He complains that one of the photos was taken of X from behind and another photo also had the maternal grandmother in it. He ends the email saying “can’t you attach the images to the email and not past them in the body??? DUH!!!! Resend the whole thing and do it right.”

3. The mother remains concerned that the father remains angry and hostile towards her and her family and cannot control his anger. She filed affidavits on 6 March 2015, 12 November 2015 and 9 August 2016. In her most recent affidavit in the matter referred to an incident on 30 April 2016 which was the subject of cross-examination.

4. The mother paid for half the supervision costs of Ms R in the last 12 months of her supervision despite not being required to under the orders. This is an example of the mother’s commitment to ensure X has an ongoing relationship with his father. 

5. The father gave qualified answers when it was put to him that the mother acts and the child focused way replying “yes it would appear so” when it was suggested that the mother acts in X’s best interests he said “I would hope so yes.”

6. The emails that the father sent the mother in 2015 also indicate that the father’s attitude towards the mother has not changed whilst he made some concessions about the emails he says he did not mean to be intimidating and domineering.

1. The father also said in cross-examination that he continues to feel aggrieved that the mother has never been made accountable as he has been. Whilst admitting that he was violent towards the mother he seeks to downplay this and say she was verbally violent towards him and that he never initiated but only reacted. Again the father shows a continuing lack of insight.

2. The father was cross-examined about the incident which took place at Mr B on 18 April 2015.  The father says he saw another child grab X around the throat or neck. He says that he was frightened and raised his voice to the child. He said that X was upset that he was grabbed and went to his mother. The father conceded that X might have been upset that he yelled. X told Mr T that he had been “a little bit frightened”. X remembered the incident but was no longer concerned by it. The father suggested that the mother coached X to say this. Mr T rejected this. The mother did not see the incident, only that she heard the father yell and X coming to her upset. Given the mother’s experiences of the father her reaction is not surprising. I accept both of the parties account.

3. With respect to the incident on 30 April 2016 the father says that X told him that they could only stay for an hour that day because they were going to (omitted). The mother said that the father ended the visit early and came up to her yelling and swearing. The mother said that they did have plans to go to (omitted) but not until the afternoon so it would not impact on the father’s time. The father denied walking up to her and swearing.  The father conceded that he did not check with the mother about what X told him. X was only 4 years old. Children that young do not have a sense of time.  The incident could have been avoided if the father politely checked with the mother if they needed to end the time early.

4. The father complains that on a couple of occasions the mother brought her husband to two of the visits. The mother said she was breastfeeding at the time. The mother had to leave early and she did not want to supervise on her own. The father then put to her that she could have emailed him to tell her. She said she has just given birth and did not think of it. Given the history between the parties this was reasonable of the mother. She would have been entitled to cancel the visits but did not.

Family Consultant Mr T

1. In Mr T’s family report dated 28 September 2015 he recommended that the final orders of 2012 remain in place. He did refer to possibilities for increasing the father’s time if it proceeded without incident and referred to mediation being preferable to further proceedings.

2. He records the mother reporting to him that the father has a poor relationship with all of the supervisors but maintains that she wishes for X to have a relationship with his father and that it is for this reason she has stepped in with her mother to supervise the father’s time in the absence of the availability of professional supervisor. She is concerned that X has a physically and emotionally safe and positive relationship with father. She remains concerned about the ability of the father to contain his anger particularly when stressed and his ability to protect X from his emotional outbursts and his hostility towards her and her family.

3. The mother’s concerns are understandable as whilst it is commendable that the father has gone to such lengths to undertake numerous parenting courses and many hours of counselling, it has not changed his fundamental attitudes, anger and resentment towards others and his lack of insight. I have no doubt that the father is very genuine and struggles to understand why there are concerns about him. This is the difficulty as he lacks insight.

4. The father told the family consultant that he is no longer angry but does get frustrated.  Mr T refers to Ms R and observed that for whatever reason she did not complete her report on time and the father “did not manage this situation well.”

5. He credits the father as being a “very committed parent and in his own way has attempted to do what he sees as best for his son.”  I accept this is the case. It is to the father’s credit that he maintained this level of commitment and interest. It is very difficult when the time is restricted in the way that it has been. However the Court’s paramount concern must always be what is in X’s best interests. Mr T concurred with Dr D’s views of the father. He went on to note that whatever the circumstances which lead to Ms R refusing to continue to supervise:

   the pattern of the fathers [sic] being directed towards persons involved in this case appears to have little changed.  In fact Ms. Ms R appears to join a long list of supervisors, and others who have been targeted by the father. There appears to be an emotional volatility in the father’s responses to these persons/situations.

6. Mr T also observed that X enjoyed his time with his father and the father was focussed on playing and being with X but expressed concern that the father lacks the thoughtfulness to be able to work with Ms R and others to achieve his goals. He expressed concern about the father’s ability to parent a young child with the level of patience, tolerance and emotional maturity that is needed particularly when a young child has tantrums and other emotional crises which are common for young children.

7. He observed that the “the mother has continued to present as a balanced, reasonable and tolerating parent” committed to X’s interests who despite the challenges has continued to support the father’s relationship with X for X’s sake.

8. Mr T was cross-examined. He was shown the emails the father was cross-examined on. He agreed that they were domineering.

9. He made it clear when cross-examined that his primary recommendation was that the 2012 orders remain in place and that the trial could have been avoided. In his report he recommended increases to the father’s time. That hope was unduly optimistic given the evidence before me, which of course I have the advantage of.

10. Mr T understood the father’s frustration and recognised the father’s commitment to X but pointed out that his frustration is not an excuse. If he wants to build up trust and goodwill with the mother he cannot be forceful or domineering. He cannot force cooperation. My view is that the father does not understand this.

11. Mr T said that the mother has shown a remarkable tolerance and capacity to support the father’s relationship with X when she could have walked away. The father would be misguided indeed if he interprets Mr T’s assessment as being biased.  His assessment accords with my assessment of the evidence.

12. An example of one of his complaints is with respect to the language Dr D used in his 2012 family report. The father feels that he used harsh language when describing him and not the mother. He does not appear to appreciate that the role of the experts is to assess the parties and the evidence and express opinions based on their expertise. Often these opinions will involve criticisms and descriptions of shortcomings of one or both parties. That does not mean that the report is unprofessional or biased and the father was aware at the 2012 hearing that he would have the opportunity of cross-examining the professional witnesses where he could have put his concerns about the reports to them. 

13. It is clear from the father’s own evidence that he struggles when people have a different point of view to him. When someone disagrees with him or makes an assessment which is unfavourable to him he thinks they are biased against him. He talks about his responses being misconstrued as anger and feeling powerless and needing to defend himself. He does not take responsibility for his conduct without seeking to justify it in some way. He also complains about almost every professional and in some cases makes very serious allegations of misconduct because he feels that they are against him. It shows a lack of appreciation of the roles of the professionals in these proceedings.

14. The complaints the father makes and the evidence during cross-examination is consistent with the conclusions that Dr D, Dr E and now Mr T reached about the father being intolerant and focusing on sleights.

15. The father complained that Mr T’s report was not factual and that he used biased language. He complains that he seemed to give the mother the benefit of the doubt and not him. The father fails to appreciate that no one, including himself, raises any concerns about the mother’s capacity to care for X.

16. He was cross-examined about his earlier affidavits and his descriptions of the mother’s sister who supervised time for a short period calling her a snake and a liar. When this was put to him he replied that it needed to be seen in context and that she had made strong allegations against him. He said he could not be weak and cowardly and that he was only trying to defend himself. He said he could not see any other way but now he just takes it. His evidence on this point illustrates the problem that his views and attitude has not changed at all and he has just learnt not to express it at times.

Legal Principles

1. The rule in Rice & Asplund is well-known. In that case, the Full Court had to consider what principles should apply when a court is faced with an application to change an earlier parenting order. Evatt CJ said the following:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order into the reasons for material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation… Change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that… there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.

2. The trial Judge has discretion as to whether to consider the Rice & Asplund principle as a preliminary issue or after a full contested hearing.  The principles apply regardless of whether the orders were made after a contested hearing or orders by consent.

3. It is important to bear in mind that the rule in Rice & Asplund is merely a manifestation of the best interests principle: see SPS & PLS [2008] FamCAFC 16 and Marsden & Winch [2009] FamCAFC 152 (“Marsden & Winch”) at [47].

4. In Marsden & Winch the Full Court stated at [50]:

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

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

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

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

5. The mother’s counsel provided helpful written submissions which accurately summarise the legal principles which apply in cases such as this. I will not repeat the details of these submissions.

6. One significant factor in this case is the difficulty for the parent with primary care of the child to plan for the present and future.

7. In Reid & Lynch [2010 FamCAFC 184 at [234] the Full Court set out the comments of Strauss J in Freeman & Freeman (1987) FLC 91-857 at 76, 470-71. Paragraph 234 is set out here:

   Although res judicata does not apply to a final parenting judgment, and there are no statutory conditions which must be satisfied before a court exercises the power in s 65D(2) of the Act, there are sound reasons why there should be some restraint on the exercise of the power.  For example, in Freeman and Freeman (1987) FLC 91-857 Strauss J said at 76,470-71:

   Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely.  It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family.  It is financially burdensome.  For these and like reasons the court may, in an appropriate case, scrutinise with some care an application such as the one in question here when a party applies for what is, in effect, the reversal of an order made a short time previously.  The court may enquire what the facts and circumstances are before it embarks on what might be a lengthy and costly hearing:  The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration.  But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support.  Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being.  Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should be not overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order.  Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children. (citations omitted)

   All of the matters that Strauss J discussed are within the rubric of the best interests of a child.

8. I accept Ms Goldthorpe’s submission that none of the changes of circumstance identified by the father which includes Ms R being no longer willing to supervise, his apology to the mother, his change in accommodation, his health and his attendance at a parenting effectiveness course and further counselling amount to a significant change in circumstances such that it would be in X’s best interests to reconsider the 2012 orders.

9. There is much force in Mr Goldthorpe’s submissions that the 2012 orders clearly contemplated that this arrangement would be long term and continue after X starts attending school.

10. Whilst it is only in rare cases that a long term order for supervision being made. It is clear that in 2012 after hearing evidence of the parties, the Independent Children’s Lawyer, the experts and Court considered it to be in X’s best interests. Of course it is not for me to second guess this or conduct some sort of quasi-appeal. Having heard evidence from the parties and Mr T, I am comfortably satisfied that the issues of concern identified in 2012 remain issues of concern today. It would not be in X’s best interests to contemplate any change.

11. The best thing the father can do is to accept that these orders will remain in place for the foreseeable future. He should recognise that the mother has done more than this Court would require of her to maintain X’s relationship with his father. She indicated in Court that she is willing to continue supervising with her mother. It is reasonable for the mother to only want to supervise with another family member present. It is clear that these proceedings have been difficult for the mother (as it has for the father). At times particularly during final submissions the mother was quietly crying. I accept that the mother is genuine.

Conclusion

1. A change of circumstance is not simply about the passing of time. By the end of the hearing the father appeared to have some understanding that he had not established a change of circumstance and that at times his behaviour continues to be problematic. In my view it is important for the father’s benefit to explain the evidence and the issues.

2. At the end of the hearing the father expressed a preference for there to be professional supervision. The 2012 orders provide for that. It is open to the father to seek the assistance of either a private professional supervisor or a supervised contact centre. The 2012 orders provide for that to be at his cost. In my view it would be beneficial for the parties if the father’s time was supervised professionally without the need for the mother and the maternal grandmother to supervise. It will lessen the stress on both sides and will provide greater flexibility in terms of location. The mother has made it clear that she is willing to continue to supervise time with the assistance of her mother whilst a professional supervisor is not available.

3. I have some concerns that the father will continue to regularly seek to engage the mother in mediation. If there is an attempt to engage in mediation each year that will be counter-productive. It only seems to keep both parties engage in the dispute. There needs to be a break where both parties are able to have space and can focus on being X’s parents without ongoing dispute in the background.

Costs

1. The mother indicated that she would seek costs in the event that she was successful. I will make orders providing a timetable for filing of written submissions and financial statements. I will then issue in chambers unless either party indicates they would like an oral hearing.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  15 September 2016