Meinhardt and Santos - [2010] FMCAfam 933

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MEINHARDT & SANTOS

[2010] FMCAfam 933

FAMILY LAW – Parenting – father’s application for a week about shared care arrangement for a child aged six – in the alternative an order that the child live with him and spend time with the mother five days/nights each fortnight – mother seeking a continuation of the existing orders which provide for the child to live with her and spend time with the father for five days/nights each fortnight – where the parties separated when the child was four months old – where there have been previous court proceedings but no previous final hearing – whether the father’s application should be dismissed at a preliminary stage.

Family Law Act 1975, ss.60CC, 65DAA
Federal Magistrates Act, s.17A
Federal Magistrates Rules, r.13
Family Court Rules, r.10

Bennett v Bennett [1991] FLC 90-126)
King & Finneran (2001)FLC92-673
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
T & N(shared residence) – (2001)31FamLR281

Applicant:

MR MEINHARDT

Respondent:

MS SANTOS

File Number:

DNC165 of 2007

Judgment of:

Terry FM

Hearing date:

10 May 2010

Date of Last Submission:

10 May 2010

Delivered at:

Newcastle

Delivered on:

02 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Barry

Solicitors for the Applicant:

De Silva Hebron

Counsel for the Respondent:

Mr Norrington

Solicitors for the Respondent:

DS Family Law

ORDERS

That the order sought by the father in his amended application filed on 9 March 2010 that both parents be restrained from applying for and obtaining a passport in the name of the child [X] born in 2004 without the written consent of the other shall stand as a response to the mother’s application that she be permitted to travel to East Timor with the child for holidays.
That the application contained in the mother’s response for an order permitting her to travel to East Timor is adjourned to 9.30am on 28 September 2010 for further consideration.
That all outstanding parenting applications are otherwise dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNC165 of 2007

MR MEINHARDT

Applicant

And

MS SANTOS

Respondent

REASONS FOR JUDGMENT

Introduction

Pursuant to court orders made by consent on 21 March 2007 [X], aged 6, lives with his mother and spends five consecutive nights per fortnight, as well as half school holidays and time on special days, with his father.
On 20 October 2009 the father filed an application seeking the introduction of a week about arrangement. On 9 March 2010 he amended this application to seek in the alternative (if the court ruled against him on equal time) that [X] live with him and spend five nights per fortnight with the mother.
The mother is opposed any change to the current arrangements.
These are not the first court proceedings between the parties. They separated when [X] was four months old, and the father commenced proceedings in January 2005 when [X] was five months old. The father sought a week about arrangement then.
Two family reports were prepared in 2005/6 and both recommended against equal time.
The court proceedings concluded in May/June 2006, when final orders were made by consent that [X] to live with the mother and spend time with the father.
At the father’s behest the parties negotiated further about parenting arrangements for [X] in 2007. They reached agreement to vary the 2006 orders and new final orders were made by consent on 21 March 2007.
During 2009 the father pressed the mother to agree to equal time, and when she would not he commenced the current court proceedings.
The father conceded that the relationship between he and the mother was extremely poor, but it was his case that if he was given more time with [X] the power imbalance between them would be redressed and this might lead to an improvement in their relationship which would benefit [X]. It was further his case that if the court considered that equal time was inappropriate because of the poor relationship, the current arrangement should be reversed and [X] placed primarily with him because he was the parent more attuned to [X]’s medical and developmental needs.
It was the mother’s case that equal time would not be in [X]’s best interests given the poor relationship between the parents. It was further her case that there was simply no evidence that [X] would benefit from a reversal of the current arrangement.
The mother said that the court proceedings in 2005/6 and the review process in 2007 had been stressful and exhausting for her and that there had been no changes since 2007 which justified a reconsideration of the orders. The mother sought to have the father’s application dismissed at a preliminary stage, and the issue of whether this should occur was argued before me on 10 May 2010.

The evidence

The father relied on his amended application filed on 9 March 2010 and his affidavits filed on 20 October 2009, 24 December 2009 and

9 March 2010.
The mother relied on her response filed on 1 December 2009 and her affidavits filed on 1 December 2009 and 24 March 2010.
The hearing on 10 May 2010 proceeded by way of oral submissions, and the father’s counsel later forwarded written submissions to the court.
To obtain information about the history of the proceedings between the parties I read all of the documents on the court file. In particular I read the two Family Reports dated 11 March 2005 and 16 January 2006 prepared by Ms K. The father made reference to parts of these reports in his affidavits and his counsel relied on some parts of Ms K’s recommendations during submissions.

Background

The mother and father both live in Darwin.
The mother was born in East Timor and came to Australia when she was about twelve. She has two brothers and five sisters who all now live in Australia. The mother and her siblings are Australian citizens.
The father was born in Australia but has East Timorese and German heritage. His mother and his sister live in Australia.
The mother and father commenced cohabitation in early 2003 when the mother was 19 and the father 23. They married on 21 October 2003 and [X], their only child, was born in 2004.
Prior to separation the mother was [X]’s primary carer. The father was employed full time outside the home and supported the family financially.
The parties separated on 6 December 2004 when the mother took [X] and went to live with one of her sisters.

The 2005-6 court proceedings

On 12 January 2005 the father filed an application for parenting orders. He proposed a week about shared parenting arrangement, and said that the paternal grandmother could assist him by caring for [X] while he was at work.
The mother filed a response in which she sought orders that [X] live with her and spend supervised time with the father.
On 3 February 2005 FM Brown made interim orders that [X] live with the mother and spend time with the father for a few hours on four occasions each week. To assist in further resolution of the matter the parties agreed to obtain a privately funded Family Report from Ms K. Ms K is an experienced and well regarded psychologist who has prepared many Family Reports for proceedings in the Family Court and the Federal Magistrates Court.
Ms K interviewed both parties in February 2005. The father told Ms K that he wanted what was “right and fair” and that he did not believe that his application for week about was unreasonable. The mother told Ms K that she had reservations about the father’s capacity to care for [X] and had a strong opposition to the involvement of the paternal grandmother in [X]’s care. The mother continued to press for the father to have supervised time only with [X].
In her report dated 11 March 2005 Ms K identified the mother as [X]’s primary attachment figure, observing that “their bond needs to be preserved at all costs.”
Ms K’s opinion was that the optimum arrangement for [X] would be to spend a few hours every 2-3 days with his non-resident parent. She commented that “trying to divide [X]’s time up too much runs the risk of the baby not developing a secure attachment to either parent.” She said that overnights would be stressful for [X] at his then age of seven months and were not recommended.
Ms K also said as follows:
“The contact arrangements can be reviewed again when [X] is approximately twelve months, 18 months, three years and six years of age. The parenting schedule is dynamic and needs to reflect the child’s changing developmental needs.”[1]
[1] Family Report March 2005 paragraph 35.
Ms K commented that “around the age of 6 years” would be a good time to introduce shared parenting provided the relationship between the parents was suitable for such an arrangement. She noted that lack of communication between the parties was a concern at the present time.
On 14 March 2005 FM Brown made further interim orders which provided for the father to spend time with [X] for a few hours on five occasions each week. The matter was later fixed for final hearing as a reserve matter on 1 March 2006 and as a head matter on 4 May 2006.
Ms K was requested to prepare an updated report for the final hearing.
The father’s proposal when interviewed by Ms K was still for a week about arrangement to commence immediately. In the alternative he proposed that [X] spend time with him from 6pm to 8pm each Tuesday and from 6pm on Friday until 8pm on Sunday each week, with a timetable of increasing contact until a 50/50 arrangement was achieved by [X]’s 4^th birthday.
The mother’s proposal was that [X] live with her and spend time with the father. She agreed that [X]’s time with the father should increase as [X] grew older but proposed that it ultimately be alternate weekends from Friday to Sunday and one overnight each fortnight.
The mother also proposed that she be permitted to take [X] to East Timor, where she still had extended family, for holidays. The father opposed this, and said that [X] should not be permitted to travel to East Timor until he was seven years old.
During the report interviews the father informed Ms K that the relationship between he and the mother was poor and getting worse. Ms K noted that the parents had limited communication at changeover and that the father’s refusal to agree to the mother visiting East Timor with [X] was a source of conflict.
Ms K observed that [X]’s relationship with the mother was “close and secure.” She also observed that [X] was comfortable with the father and that he and the father had a “warm and secure relationship.”
Ms K expressed the following opinion in respect of the father’s application for a week about arrangement:
“It is the counsellor’s opinion that for shared care to act in the child’s best interests, as Mr Meinhardt has requested, there needs to be a great deal of goodwill and very clear and unimpeded communication channels…As this level of communication does not exist, and as [X] is still very young, it is not recommended that a 50/50 shared care arrangement be considered at this point of time. Seven days away from his primary attachment figure at nineteen months of age, is also considered to be too long for his developmental stage.”[2]
[2] Family Report 16 January 2006 paragraph 22
Ms K made recommendations along the lines of [X] living with the mother and spending regular time with the father. She said that “When [X] is 6 years old this contact schedule could be reviewed with the possibility of shared care being considered.”[3]
[3] Family Report 16 January 2006 paragraph 26
Ms K also recommended that the mother be permitted to take [X] to East Timor for holidays, subject to the time being shorter than the mother proposed.
The parents were unable to reach an agreement following the release of the report and they each filed their trial affidavits. However on 1 March 2006 they reached agreement on most matters and by 4 May 2006 had agreed on the remaining matters and final orders were made by consent.
The orders provided that:
a)the mother and father have equal shared parental responsibility for [X];
b)[X] live with the mother;
c)[X] spend time with the father from 6.00pm Friday to 6.00pm Sunday each alternate weekend and overnight one night each week alternating between overnight Thursday to Friday in one week and overnight Tuesday to Wednesday in the following week.
d)[X] spend time with the father for half of each school holiday period once he commenced pre-school.
No orders were made permitting the mother to take [X] to East Timor for holidays.

The 2007 consent orders

In early 2007 further discussion about parenting arrangements took place. Following these discussions the parties agreed to discharge the 2006 orders and fresh final orders were made by consent on 21 March 2007.
The new orders provided for [X] (who was then 2 years and 7 months old) to spend time with the father from 6pm Friday to 6pm Wednesday each alternate week and for half of each school holiday period once he commenced pre-school.

The father’s 2009 application

On 20 October 2009 the father filed an application seeking orders that:
a)all existing parenting orders be discharged;
b)the parents have equal shared parental responsibility;
c)[X] live in a week about shared care arrangement;
d)[X] attend [School N];
e)changeovers take place at school as far as possible, because of the conflict which occurred when the parents were both present at changeovers.
On 1 December 2009 the mother filed a response in which she also sought that all existing parenting orders be discharged. However an examination of the mother’s response shows that by and large she sought a continuation of the 2007 orders so far as the allocation of parental responsibility, where [X] should live and the time he should spend with the father were concerned.
The mother also sought orders that:
a)[X] attend [School K];
b)she be permitted to take [X] to East Timor for a holiday on two occasions of up to two weeks duration each year.
[X] was due to start school at the commencement of the 2010 school year, and the issue of the school he was to attend therefore needed to be speedily resolved. I listed this issue for hearing as a discrete matter on 13 January 2010. At the conclusion of the hearing (which took one day and during which the parties gave evidence and were cross-examined and documents were tendered) I made orders that [X] attend [School K] and that changeovers take place at school whenever they occurred on a school day.
I otherwise adjourned the matter to 23 February 2010 for mention, to give the parties a chance to reflect on their positions now that this discrete issue had been determined. On 23 February 2010 however it was clear that the father still wished to pursue his application for week about time and I made orders concerning the parties filing further documents.
The father filed an amended application on 9 March 2010. In it he still sought a week about arrangement, but in the alternative sought an order that [X] live him and spend five consecutive nights per fortnight with the mother.
At the request of the mother’s solicitor, the matter was listed for hearing on 10 May 2010 to determine whether the father’s application should be dismissed at a preliminary stage.

The applicable law

The Federal Magistrates Act and Rules make provision for the summary dismissal of applications. Section 17A of the Federal Magistrates Act provides as follows:
(1)…………………
(2)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)     hopeless; or
(b)     bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Magistrates Court has apart from this section.
R.13.05 of the Federal Magistrates Rules provides as follows:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Note For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see section 118 of the Family Law Act.”
Summary dismissal applications are sometimes made in family law proceedings, and they have occasionally been successful in the context of s.79A applications. On one occasion an application for adult child maintenance was summarily dismissed. It is difficult however to envisage any circumstances in which a court could be satisfied, simply on the basis of reading affidavits and hearing submissions, that an entire application for parenting orders had no reasonable prospects of success.
A court hearing a parenting matter is required to treat the child’s best interests as the paramount consideration, and to determine those best interests is required to take into account all of the matters in s.60CC(2), (3) and (4) of the Family Law Act. The court must weigh and balance all of the relevant considerations, and in the exercise of its discretion determine appropriate orders, and there are occasions when matters are finely balanced.
The outcome of cross-examination, the contents of documents produced on subpoena and the evidence and recommendations which emerge when the parties and child are seen by a family report writer may result in a matter looking very different at the end of a hearing to how it looked in the early stages.
There are occasions when after hearing all of the evidence the court considers making orders different to those sought by either party, and in addition, an applicant for parenting orders often seeks a series of different orders and may have differing prospects of success in respect of the different orders sought.
It is therefore very unlikely that a court could ever be satisfied that an entire parenting application should be summarily dismissed pursuant to r.13.05. However, on the basis of what is called “the Rule in Rice & Asplund” the court does sometimes dismiss a parenting application at a preliminary stage in circumstances where there are existing parenting orders and the applicant is not able to demonstrate that a change of circumstances has occurred which warrant the orders being reconsidered.
In Rice & Asplund[4], Evatt CJ said as follows:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as counsel for the appellant submitted, 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. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require a court to consider afresh how the welfare of the children should best be served. These principles apply whether the original order was made by consent or after a contested hearing. The way they apply, and the factors which will justify the court in reviewing a custody order, will vary from case to case.”
[4] Rice & Asplund (1979) FLC 90-725

In the 2008 decision of SPS & PLS[5], Warnick J conducted a very thorough review of the “rule in Rice & Asplund”. He said as follows:
“As seen above in Rice & Asplund, Evatt CJ recognised that a purpose of the rule was to discourage endless litigation. I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid public expense of subsequent hearings, and the imposition of them on court time. In the case of In the marriage of McInerney, Nygh J moved beyond the general position of public interest in the finality of all litigation to purposes more specific to family law. He said the principal that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing that this court would wish to see would be a perennial football match between parents who, because the strict principles of Res Judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other, but especially upon the child.”[my emphasis].
[5] SPS & PLS (2008) FLC 93-363
Warnick J emphasised however that:
“At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the best interests principle.”
and went on to say:
“Thus, in my view, when a threshold question described in Rice & Asplund is determined as a preliminary matter it remains a determination on the merits. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason such as failure of a party to appear or some lack of compliance with form or procedure, but rather because assuming the evidence of the applicant is accepted there is insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”
It is important to note however that although the child’s best interests remain the paramount consideration when a “Rice and Asplund” application is being considered, it does not follow that the court hearing the application is required to consider and make detailed findings about each of the matters in s.60CC of the Family Law Act. In King & Finneran,[6] (decided when the relevant section of the Family Law Act was s.68F rather than s.60CC) Justice Collier said as follows:
“The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or as I understand the appellant’s submissions at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.
A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
The husband’s line of argument in this regard is flawed. It is not the case that an application of the Rice v Asplund test divides or compartmentalises a matter into a threshold component and a merit component. It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett v Bennett [1991] FLC 90-126).
To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.”
[6] King & Finneran(2001) FLC92-673

The father’s case

The father’s case that he should be allowed to proceed with his application rested in essence on the following propositions:
a)There had never been a hearing on the merits about the issue of equal time. In both 2005/6 and 2007 the father gave in and agreed to orders that [X] live with the mother and spend time with him. The father should be allowed his day in court so that a judicial officer could hear evidence, take into account an up to date family report and make a determination.
b)Ms K had suggested that parenting arrangements for [X] be reconsidered when he was six and had expressed the view that equal time might be appropriate at this age. The mother refused to even consider it and therefore the only way the parenting orders could be reconsidered as Ms K had suggested was if the father was allowed to run his case.
c)The father signed the 2007 consent orders believing, because of Ms K’s comments and because of advice he received from his lawyer at the time, that he would be able to agitate again for equal time when [X] was six and it would be unfair to deprive him of the opportunity to have a hearing into the matter simply because that he had agreed to final orders in 2007.
d)There had been a change of circumstances since 2007 in that [X] had been discovered to have learning difficulties. The father was the person who had identified and sought treatment for these difficulties and the mother had resisted accepting that there was a problem. This alone warranted a fresh inquiry into parenting arrangements for [X].
e)The mother was pressing for orders that she be permitted to travel to East Timor and the father still opposed [X] travelling. That issue would need to be the subject of a court hearing and it would be fundamentally unfair if the mother was allowed to litigate this issue but was able to prevent the father litigating the issues of his choice.
f)Although the father and mother had a poor relationship, which on its face might seem to mean that the father’s application for equal time had little chance of success, the poor relationship and communication difficulties were essentially the mother’s fault, and it would be unfair if the father was deprived of an opportunity to press for equal time as a result. In any event making orders for equal time or alternatively orders that [X] live primarily with the father would redress the power imbalance between the parties and might lead to an improvement in their relationship and their ability to communicate, and further, the parties could always attending a parenting course.
The father said as follows in his affidavit:
“The mother seems reluctant to accept that [X]’s best interests are properly served by having two loving parents meaningfully partaking in his life so as to help him reach his full potential….I believe this attitude is unlikely to change unless the court determined that I was to be either the primary carer or in a position of equality with Ms Santos in terms of [X]’s living arrangements.”
The father maintained that despite the communication problems an equal time arrangement would be beneficial to [X] because:
a)it would deliver greater consistency for [X];
b)he would be able to play an equal role in addressing [X]’s schooling and developmental issues;
c)he had shown a stronger commitment to addressing [X]’s needs, such as his learning and health needs;
d)he was well equipped to look after [X] full time;
e)he was part of a loving and close family of which [X] is an integral part.
The father further said as follows:
“I would dearly love to improve my relationship with Ms Santos so that we can co-operate about issues relating to [X], particularly now that [X] is of an understanding age, and is becoming increasingly aware of the conflict between myself and Ms Santos.
I believe that a week about arrangement would decrease conflict between Ms Santos and myself and assist us to reduce conflict between us.
Once the current issues between Ms Santos and I are resolved by the Court I will again ask Ms Santos to engage in a post-separation course with me. I believe that this will also assist us to reduce conflict between us.”[7]
[7] Fathers’ affidavit filed 9 March 2010 paragraphs 31-33

The mother’s case

The mother’s case was essentially as follows:
a)The proceedings in 2005/6 ran for sixteen months and the mother found the litigation “exhausting and stressful.”[8]
b)Further negotiations took place in 2007 leading to the parties agreeing on fresh final orders. The 2007 orders dealt comprehensively with parenting arrangements for [X] both before and after he commenced school. There was nothing on the face of these orders to suggest that they were only intended to be in place for two or three years.
c)The reason the father was pressing for a re-consideration of the orders was simply that he had an obsession with obtaining equal time. There had been no change of circumstances since 2007 which would justify the orders being reconsidered. Certainly the father alleged that the mother breached the orders from time to time, and he alleged that she had not been responsive to information he provided about [X]’s learning difficulties, but reconfiguring [X]’s time between the parties would not do anything to resolve those concerns. Put another way, the father already had 5 nights a fortnight with [X] and two extra nights were not going to deliver any positive benefit to the child.
d)It was difficult to see how equal time could work when there was no trust between the parties and no ability to communicate effectively. No change in the current configuration of time would change the level of conflict and disharmony between the parties.
[8] Mother’s affidavit filed paragraph

Discussion

The mother sought dismissal of the father’s application at a preliminary stage and one way in which this could occur would be by application of r.13.05 of the Federal Magistrates Rules.
This would require a finding that the father’s application had no reasonable prospects of success and although as I observed earlier it is usually impossible to be sure at an early stage that a parenting application has no reasonable prospects of success, the father’s application for equal time might just be an exception.
Pursuant to s.65DAA(5) of the Family Law Act two of the matters the court has to consider in determining whether equal time (or substantial and significant time) should be ordered are:
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;”
Ms K said something similar to this when she observed in her January 2006 report that for equal time to work there needs to be “a great deal of goodwill and very clear and unimpeded communication channels.”
There is no goodwill between the father and the mother. Although they separated more than five years ago they each still cling to all their old grievances about the other and add to the store with each passing year.
In the affidavits he filed in support of his current application the father raked over the coals of all his old complaints about the mother. He complained that she took [X] from him at separation and that he did not see [X] for 5 months (an assertion I question given the contents of Ms K's March 2005 report), that she baptised the child without his knowledge in January 2005, that she made false allegations that the paternal grandmother had sexually abused [X], that during 2007-8-9 his solicitors had needed to repeatedly write to her about breaches of the orders, that she enrolled [X] at [a Early Learning Centre] (effectively at pre-school) in 2008 without his consent pretending that she was simply sending the child to day care, and that she blocked his attempts to attend the Early Learning Centre to observe [X].
The father complained that the mother had [X] recorded on her Medicare card as “[X] Santos,” that she and a young cousin of [X]’s sometimes called [X] “[Y],” and that she had not informed him when [X] was recently moved to a different class at school.
The mother in her affidavits also raked over the coals of old complaints, making allegations about the way the father and paternal grandmother treated her during the marriage and complaining about behaviours of the father that she had found overbearing, controlling and pedantic.
The party have no ability to communicate effectively about matters concerning [X].
The mother has tended to deal with what she considers the father’s overbearing and controlling behaviour by ignoring concerns when he raises them or by acting in a deceitful way to avoid having to negotiate with him (the enrolment of [X] at the Early Learning Centre being a prime example).
The father, when he suspected that [X] had learning difficulties, took him to a general practitioner, paediatrician, psychologist and an early childhood intervention team. The mother, who perceived the father to be going off on a mission of his own without consulting her, responded by brushing off his concerns when he did finally raise them with her.
The father entirely blames the mother for the parties’ poor relationship and their communication difficulties. He is blind to effect such things as his refusal to allow the mother to visit her family in East Timor with [X], his refusal to allow the mother to travel interstate with [X] in 2009, his relentless requests that the mother agree to equal time and his occasional pedantry about the orders, have had on his relationship with the mother.
The mother similarly accepts no responsibility for the parties’ poor relationship or the communication difficulties and does not acknowledge that her own actions such as baptising [X] without informing the father and effectively enrolling him in pre-school without any consultation with the father have simply thrown petrol on the bonfire of the parties dispute.
The lowest point was reached at a changeover in September 2009 when the parties got into an argument and each physically pulled [X] in a different direction. The father described the incident as follows:
“there was a tussle over [X] when I tried to take him and the mother resisted.” [9]
[9] Father’s affidavit filed 9 March 2010 paragraph 26
It is hard to imagine matters for [X] getting worse than this.
The parties’ relationship is so poor that it is might be considered something of a miracle that [X] is apparently doing as well as he is in the current nine/five division of time between the parents. The father appeared to be suggesting that if he was given equal time (his agenda since [X] was four months old) things might settle down, but there is absolutely no evidence that changing the configuration of [X]’s time would improve the relationship between the parties or their ability to communicate or their ability to behave in a respectful and inclusive manner toward each other.
s.65DAA of course contains the following notation:
Note 2: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Certainly the father suggested that the mother should attend a parenting course “with him” in an endeavour to improve their relationship, but given the history of this matter and the inability of either parent to accept responsibility for the state of their relationship I have no confidence that simply sending these parties off to do a parenting course will result in an improvement in their relationship or their ability to communicate.
I am not satisfied however that I can, even in light of all of the above matters, find that the father’s application for equal time has no reasonable prospects of success. The mother as much as the father is to blame for the poor relationship and inability to communicate and in rare cases the court has ordered equal time despite an appalling inter-parental relationship.[10] In addition the father has another application on foot namely an application that [X] should live with him and spend five nights per fortnight with the mother.
[10] Bartholomew & Kelly (2001) unreported, referred to in T & N (shared residence) – (2001) 31
The issue then is whether the father’s application should be dismissed on the basis of the rule in Rice & Asplund that is, because there are final orders in place, no change of circumstances has occurred which would warrant a reconsideration of the orders, and it is not in the child’s best interests that further litigation in respect of his parenting arrangements should occur.
There has been a change of circumstances since 2007 in that the possibility that [X] has learning difficulties has been raised and the parties have conspicuously failed to act in concert to investigate and deal with this possibility. However not every change of circumstances will justify further litigation. As Justice Collier said in King & Finneran:[11]
“What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the child afresh.”
[11] King & Finneran(2001) supra
Even if [X] does have learning difficulties (and a finding would need to be made about this at a final hearing) there was absolutely nothing in the father’s material to suggest that if [X] lived with him for seven consecutive nights or nine consecutive nights rather than five consecutive nights, the outlook for [X] in respect of any learning difficulties would be improved.
The father pressed for the right to continue with his application because there had never been a final hearing but I do not accept that simply because there has never been a contested hearing of the competing applications concerning time with [X] that there should be one now. None of the previous orders were made in haste. The 2005/6 proceedings continued all the way through the court system and were settled on the first day of the hearing. The 2007 orders were made following the parties preparing for and attending at a family law conference and then agreeing on orders which covered the situation both before and after he commenced school. There is nothing in those orders to suggest that they were intended to be temporary.
Ms K did say in her reports that arrangements for [X] should be reconsidered when he was eighteen months, three and six years old and did suggest that equal time could be considered when [X] was six. She was however not expressing a view that it would be in [X]’s best interests for him to be the subject of repeated court applications.
In the father’s affidavits he referred selectively to Ms K’s comments about equal time. Ms K made it very clear that in her view parental communication would need to be satisfactory before equal time could be considered.
I accept that the father perceives it as unfair that he might be prevented from running his case because he did not understand the significance of consenting to final orders in 2007, but any decision I make must be the decision which is in [X]’s best interests, not the fathers.

The physical tussle between the parents over possession of [X] in September 2009 was appalling, and the tussle over about the amount of time they each spend with [X] needs to come to an end, so that they can focus on effectively parenting him rather than involving themselves in a power struggle over the number of days and nights they each spend with him.
It would be not be in [X]’s interests for this struggle over the number of days each spend with him to continue for months, with each parent distracted by the stress of the proceedings from properly parenting their son, and I intend to dismiss the father’s application.
Although it would be ideal if all court proceedings could be concluded, in my view the mother’s application concerning taking [X] to East Timor needs to be heard. This issue has been a source of friction between the parties since 2005. Ms K recommended that the mother be permitted to take [X] to East Timor for short holidays, commenting that
“it seems punitive and restrictive to consider that Ms Santos cannot return to her parent’s country of birth to visit family before [X] is 7 years of age.”
Ms K’s comments are not of course the end of the matter. Many issues will have to be considered if the mother goes ahead with this application, including East Timor’s status as a non-Hague convention country, the mother’s attachment to Australia and whether there is any risk of her not returning with [X], whether that risk can be alleviated by the requirement that the mother provide a bond, the length of the proposed holidays and the safety of travel in East Timor.
I intend to list the mother’s application in relation to travel to East Timor in a duty list in Darwin so that it can be further dealt with if the mother wishes.
I intend to otherwise dismiss all outstanding parenting applications and the orders of the court shall be as set out at the beginning of this judgment.

I certify that the preceding ninety nine (99) paragraphs are a true copy of the reasons for judgment of Terry FM

Date: 2 September 2010

FamLR 281