Moore & Shirley
[2020] FamCA 56
•7 February 2020
FAMILY COURT OF AUSTRALIA
| MOORE & SHIRLEY | [2020] FamCA 56 |
| FAMILY LAW – CHILDREN – where final parenting orders were made in November 2018 changing the child’s living arrangements from living with the mother to living with the father and spending supervised time with the mother – where the mother seeks orders that the child live with her and spend supervised time with the father – where the father asks that the court determine the Rice & Asplund question as a threshold issue – where the Court is not persuaded that the mother has established a sufficient change in circumstances – where the mother’s Initiating Application is dismissed. |
| Family Law Act 1975 (Cth) |
| Bennett and Bennett (1991) FLC 92–191 Caracini & Paglietta [2009] FamCAFC 188 CDJ v VAJ (1998) 197 CLR 172 DL & W (2012) FLC 93-496 Freeman and Freeman (1987) FLC 91-857 G & G [2000] FamCA 12 In the Marriage of McEnearey (1980) FLC 90 – 866 King v Finneran (2001) FLC 93–079 Marsden & Winch (2009) 42 Fam LR 1 Miller & Harrington (2008) FLC 93-383 Newling and Newling; Mole (Applicant) (1987) FLC 91-856 Poisat & Poisat (2014) FLC 93-597 Rice v Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Moore |
| RESPONDENT: | Mr Shirley |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | PAC | 3139 | of | 2013 |
| DATE DELIVERED: | 7 February 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 30 January 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page of Queen’s Counsel |
| SOLICITOR FOR THE APPLICANT: | Fallu McMillan Lawyers |
| THE RESPONDENT: | In person |
| THE INDEPENDENT CHILDREN’S LAWYER: | Ms Huth |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
IT IS ORDERED THAT
The Initiating Application filed 7 August 2019 is dismissed.
In the event that Mr Shirley and/or the Independent Children’s Lawyer seeks an order that Ms Moore pay the costs of and incidental to the Initiating Application filed 7 August 2019:
(a)the applicant for an order for costs shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and
(b)Ms Moore shall file and serve any brief written submissions in answer to the submissions filed and served by any applicant seeking costs within a further fourteen (14) days thereafter; and
(c)the applicant for an order for costs shall file and serve any brief further written submissions, strictly in reply to the submissions served by Ms Moore, within seven (7) days of its service,
and any such application for costs shall be considered in Chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Moore & Shirley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: PAC 3139 of 2013
| Ms Moore |
Applicant
And
| Mr Shirley |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 23 November 2018, I made final parenting orders in relation to B, who was born in 2013. These Orders were made after a total of ten hearing days.
The consequence for B of the implementation of those Orders was that he moved from living with Ms Moore (the mother) near E Town in Queensland to living with Mr Shirley (the father) in J Town, New South Wales. The father was accorded sole parental responsible for the major long-term issues relating to him. A further consequence was that he spent no time with his mother until after 12 April 2019, from which time he has been spending supervised time with her for three hours on the Saturday and Sunday of each third weekend.
Whilst I noted in the Reasons for Judgment delivered on 23 November 2018 (the Reasons) that the mother then intended to sell her house and leave her employment and follow B to New South Wales,[1] it is accepted that, in order to spend time with B as prescribed by the November 2018 Order, she travels to J Town.
[1] Reasons for Judgment delivered 23 November 2018 at [378].
The November 2018 Order was the subject of appeal by the mother; however, a Notice of Discontinuance of the Appeal was filed on her behalf on 7 July 2019.
The current proceedings
On 7 August 2019, the mother filed an Initiating Application (the August 2019 Application) by which she sought, by way of final and interim parenting orders, that B live with her and spend supervised time with the father on the same terms as those which prescribe her current time with him. She also sought that she be accorded sole parental responsibility for major long-term issues in relation to B.
On 19 September 2019, Registrar Coutts appointed an Independent Children’s Lawyer and made a number of other orders to facilitate the interim hearing of the Application; the Registrar also noted that the father had advised that, after the November 2018 Order was made, he was charged with and, in June 2019, convicted for, an offence of “filming an adult person in a private act without permission”. A further notation was made to the effect that the father was intending to seek legal advice in relation to a foreshadowed Rice v Asplund[2] application vis-à-vis the August 2019 Application.
[2] (1979) FLC 90-725.
On 28 November 2019, Registrar Brooks listed the father’s application for summary dismissal of the August 2019 Application,[3] based on the principles outlined in Rice v Asplund, to 30 January 2020.
[3] as contained in his Response to Initiating Application filed 16 September 2019.
Broad summary of the parties’ respective positions
The mother said that she brought the August 2019 Application because of the new information that the father has been engaged in criminal activity whilst B has been in his care – her evidence included that, during the previous proceedings, documents obtained via subpoena directed to the police service showed that the father had previously been involved in similar activity to that which resulted in the 2019 conviction. It was contended on her behalf that the most recent conviction was of such a nature that the Court would consider it appropriate and in B’s best interests to revisit the parenting orders made in November 2018.
At the hearing, the father, supported by the Independent Children’s Lawyer, sought that the Court dismiss the August 2019 Application at a preliminary stage: it was contended, in essence, that the evidence relied on by the mother did not establish that there had been a sufficient change of circumstances so as to warrant the Court, acting in B’s best interests, revisiting his parenting arrangements.
The ‘rule’ in Rice v Asplund[4]
[4] (1979) FLC 90-725.
In Rice and Asplund, Evatt CJ, with whom Pawley SJ and Fogarty J agreed, said:[5]
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, 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 (passage quoted in Hayman and Hayman (supra), at page 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.
[5] At 78,905 – 78,906.
In Poisat & Poisat[6] the Full Court said at [13]:
Whether or not the principle might be properly called a “binding rule” in the sense used by Mason and Deane JJ, for present purposes it can be said that the “rule in Rice and Asplund” is of long standing, has been consistently recognised and applied both in this court and at first instance, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.
[6] (2014) FLC 93-597.
The rationales underlying the rule – which is merely a manifestation of the best interests principle[7] at whatever stage of proceedings it is applied[8] – have been outlined in earlier Full Court and first instance decisions. As long ago as in In the Marriage of McEnearey[9], Nygh J said:[10]
The last thing, of course, 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.
[7] See the discussion of Warnick J in SPS and PLS (2008) FLC 93 – 363.
[8] SPS and PLS, at 48.
[9] (1980) FLC 90 – 866.
[10] At 75, 499.
In Newling and Newling; Mole (Applicant)[11] Nygh J[12] said:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the court…
[11] (1987) FLC 91-856.
[12] With whom Barblett and Fogarty JJ agreed; referred to by the Full Court in Poisat & Poisat
In CDJ v VAJ,[13] the majority remarked, albeit in the context of an appellant against an order changing children’s living arrangements seeking leave, at the hearing of the appeal, to tender further evidence pointing to changes in circumstances, outlook or apparent welfare, that:[14]
……….
…..So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
[13] (1998) 197 CLR 172.
[14] Ibid, at [118].
In G & G[15] Holden and Jerrard JJ commented that the emphasis is whether the Court is satisfied that a child’s best interests are being served by further litigation on a matter already decided upon and already the subject of Court orders, whether made by consent or after a contested hearing.
[15] [2000] FamCA 12.
Further authority to which I have had regard also relevantly establishes that:
a)the “best interests” issue arises because, given that there are so many changes in the lives of families, those changed circumstances which will permissibly allow re-litigation of a decision must be circumscribed otherwise there would, in some cases, exist the “spectre of endless litigation” which ends only when the child attains 18 years of age and the Court no longer has jurisdiction;[16] and
[16] Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 at 48.
b)the application of the rule is closely connected with the nature and degree of change sought to the earlier order;[17] and
[17]SPS and PLS at 48; adopted in DL & W (2012) FLC 93-496 at [70].
c)the rule is founded on the idea that continuous litigation over a child is not generally in that child’s interests, it being usually hoped that the determination of a controversy concerning the child by a Court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and the child;[18] and
[18] Marsden & Winch at 49.
d)the Court must determine whether the party seeking the variation or discharge of an existing order has established there is a sufficient change of circumstance so as to justify embarking on a further hearing of the application; [19] and
[19] Miller and Harrington at [81].
e)the Court is bound to take into account best interests considerations and to apply the legislative requirements;[20] and
[20] Miller and Harrington (2008) FLC 93-383 at 72.
f)whether in a particular case a Court should be willing to embark upon another hearing concerning a 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 having regard to:
i)the past circumstances, including the reasons for the decision and the evidence upon which it was based; and
ii)whether there is a likelihood of orders being varied in a significant way as a result of a new hearing; and
iii)if there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child caused by the litigation itself as, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation;[21] and
g)a two-step process should be followed when the rule is invoked in that there is a requirement:
i)for a prima facie case of changed circumstances to have been established; and
ii)a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing;[22]
h)the focus of the enquiry must be to determine whether there are changed circumstances sufficient to warrant an application being made, with the consequence that issues previously considered by a Court will be re-litigated.
[21] Marsden & Winch at [50].
[22] Marsden & Winch at [58].
Should the “rule” be applied on a preliminary basis?
In Poisat & Poisat[23] the Full Court said, at [18]:
In Miller and Harrington this Court said:
72. It may be, however, that neither the expression “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
[23] (2014) FLC 93-597.
As the application of the rule in Rice and Asplund occurs within proceedings to which the provisions of Division 12 A of Part VII of the Family Law Act 1975 (Cth) apply:
a)the Court hearing argument as to the application of the ‘rule’ at a preliminary stage is bound to apply the provisions of Division 12A of the Act, included in which are the mandatory requirements:
i)to decide which of the issues in the proceedings require full investigation and which may be disposed of summarily;[24] and
ii)to deal with as many aspects of the matter as it can on a single occasion.[25]
b)the Court is empowered to make a finding of fact in relation to the proceedings, to determine a matter arising out of the proceedings and to make an order in relation to an issue arising out of the proceedings if it considers that it may assist in the determination of the proceedings;[26]
c)the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;[27] and
d)the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect and the parties to the proceedings against family violence.[28]
[24] s 69ZQ(1)(a) of the Act.
[25] s 69ZQ(1)(g) of the Act; Miller and Harrington (2008) FLC 93-383, at [74]
[26] s 69ZR of the Act.
[27] s 68ZN(3) of the Act.
[28] Miller and Harrington at 67
In some cases, the qualitative question of whether a change is or is not sufficiently significant to justify a full further hearing of a parenting issue may be more difficult to answer on a preliminary basis where there is resolution of only some disputed facts.[29]
[29] Miller and Harrington at [82}.
However, that is not the position here. Here, the father does not dispute that he committed the offence to which he entered a plea of guilty in June 2019; he does not dispute that he acted as it was alleged he did in June 2019; he does not dispute that he suffers from ADHD and Bipolar II disorder or that, in the past (as recounted in the November 2018 Reasons for Judgment) he has previously engaged in behaviour of a broadly similar nature to that for which he was more recently convicted.
In addition, whilst the mother focused on the father’s June 2019 conviction, and advanced that she had attended therapy as directed by the November 2018 Order, she does not provide any evidence to the Court to establish on a prima facie basis that she has addressed, through that engagement, any of the issues identified in the November 2018 Reasons for Judgment as providing the basis for the conclusion I reached that it was in B’s best interests that he live with his father and spend supervised time with her. Therefore, there is no disputed evidence about this aspect of her case.
In fact, the father submitted that the contents of the report provided by Mr QQ (a psychologist upon whom the mother has attended on 21 occasions since 22 November 2018) simply demonstrate that she retains the same views about, and attitude toward, him that she held prior to the hearing and which were the subject of discussion in the November 2018 Reasons for Judgment. For example, Mr QQ describes the mother’s “enduring distrust of the father”; said that she is “demonstrably well-intentioned towards almost all people, with the exception of the father of her child” and that she had reported “ongoing, enduring and numerous concerns over her son’s wellbeing in the care of his father.”
I also note that Mr QQ expressed his “belief” that the mother was:
Unlikely to demonstrate the lack of co-operation with the father of the child which predominantly supported the court’s decision to remove the child from her primary care. In short, she has learned a valuable and bitter lesson.
Given that, in the August 2019 Application, the mother seeks that B spend supervised time with the father, this assessment, at its very highest, must be regarded as being limited to a comment about the mother’s attitude to co-operating with a parenting regime which would see B spend only supervised time his father.
Further, despite this expression of belief by Mr QQ, there is, in my view, an absence of evidence from the mother to establish that she has addressed the underlying issues identified in the Reasons for Judgment delivered to explain the bases on which I concluded that the November 2018 orders were the orders which were in B’s best interests.
I have also had regard to the following matters which I consider are encompassed within s 68ZN(3) of the Act:
a)the importance of there being an end to litigation so as to limit or minimise, in this jurisdiction, the “enormous psychological harm” parents are likely to inflict on each other and B as a consequence of the ability to canvass again the question of his living and parenting arrangements;[30] and
b)that continuing and seemingly endless and inconclusive litigation – in the absence of sufficiently established changed circumstances – is usually emotionally damaging to parents and, given the father’s mental health issues, is likely to affect B adversely in that it may well impair the father’s ability to discharge his parenting of him, is highly likely to impose an emotional burden on the parents and is highly likely to undermine B’s stability in the father’s household in a way that is highly unlikely to be beneficial to B’s general well-being;[31] and
c)the important private interests of a child such as B, are unlikely, save in special circumstances, to be served by the uncertainty of prolonged and repetitive proceedings;[32] and that,
d)if addressed as a preliminary matter, the rule in Rice & Asplund is clearly more effective in discouraging “endless litigation” than if it is applied at the conclusion of a hearing.[33]
[30] McEnearney and McEnearney (1980) FLC 90-866 per Nygh J at 75,499
[31] Freeman and Freeman (1987) FLC 91-857 per Strauss J at 76,470-71
[32] DL & W (2012) FLC 93-496; [2012] FamCAFC 5 at [66].
[33] DL & W (2012) FLC 93-496; [2012] FamCAFC 5 at [69].
Given that there is no principle that the rule should never be considered prior to a trial,[34] I consider, in the exercise of my discretion,[35] that the rule in Rice & Asplund should be considered at a preliminary stage of the current proceedings.
[34] Caracini & Paglietta [2009] FamCAFC 188 at [18]; Miller & Harrington (2008) FLC 93-383; Poisat & Poisat (2014) FLC 93-597.
[35] Bennett and Bennett (1991) FLC 92 – 191 at 78,262.
I arrive at this conclusion because of: the likely impact on B of further engagement in litigation so soon, relatively speaking, after the November 2018 Orders were made; my view that the mother’s evidence contains nothing to suggest that she has changed anything in her attitude toward the father or her approach to her parenting of B or that she has in any way addressed the issues Dr O identified as relevant to her functioning; and that the evidence relating to the father’s subsequent conviction (on a guilty plea) of the offence with which he was charged in June 2019 and the circumstances of the same are such that it appears to me to be more likely than not that such behaviours were a further manifestation of the behaviours considered at the trial and the subject of discussion in the lengthy and detailed Reasons for Judgment delivered in support of the November 2018 Order.
Having determined to apply the rule on a preliminary basis, the issue is whether the circumstances disclosed by the evidence reveal a change of circumstance of such significance that B’s best interests require revisiting earlier parenting orders.[36]
[36] Poisat at [43].
I am cognisant that an application such as this may be determined by either consideration of the affidavit material relied upon by an applicant, cross-examination of some witnesses relied upon to determine how strong the case for a change of circumstances is or a combination of these approaches.[37] Here, there was no application made by any party to cross-examine either the mother or the father.
[37] Poisat & Poisat at 39 and 40 referring to: Mason J in Lowe & Lowe (unreported, High Court of Australia, Mason, Dawson and Toohey JJ; 6 April 1990); Warnick J in SPS & PLS, approved in Marsden & Winch (2009) 42 Fam LR 1; Langmeil & Grange [2013] FamCAFC 31.
What are the asserted changes of circumstances to be assessed against?
It is – of course – necessary to have regard to the cases advanced by each parent in the proceedings which culminated in the November 2018 Orders and the circumstances found (as recounted in the November 2018 Reasons for Judgment) in order to determine whether the mother has established a sufficient change of circumstances that further parenting litigation is in B’s best interests.
Such cases are extensively discussed and considered in the Reasons I delivered in November 2018 and I do not intend to summarise them again here.
It is relevant to record, though that when cross-examined in the proceedings which culminated in the November 2018 Orders, Dr O’s evidence included that, at that time: without “help, support, guidance, orders, rules, structure that she’s assisted to follow”, the mother had a severe incapacity to facilitate a reasonable, and fair and appropriate relationship between B and his father; the mother had, in essence, an immovability and an absence of self-awareness and self-reflection and reduced psychological insight or awareness about her self-concept, self-esteem and identity and individuality; the mother struggled to see the father as a person who has a right or role in B’s life.
Further, having discussed the formation by the mother of her beliefs and the extent to which they are held, Dr O noted that, whilst he was not diagnosing a delusional disorder, the point was that some beliefs can be held so strongly that they become overvalued ideas bordering on delusions and that, in the face of very obvious explanations to the contrary, the belief remains fixed and immoveable.
It is also relevant to note that, Dr O’s evidence when cross-examined, also included, in effect, his opinion that the father’s medical situation needed to be monitored because there was an ongoing risk that, particularly if life stressors mount, the balance of the treatment used to treat his ADHD (being a stimulant) could impact on the treatment of his bipolar disorder and there could be what he described as the “sudden onset of severe mood instability, impulsive behaviour” – and that the sorts of behaviours the father had related having previously demonstrated (such as masturbating in a car) could have been related to mood instability or elevated mood. Such evidence was consistent with that of Dr OO, which I also accepted.[38]
[38] Reasons for Judgment 23 November 2018 (Corrigendum issued 13 December 2018) at [288].
Some of the more recent evidence
The evidence advanced by the father in responding to the current application is to the effect that he has continued to engage with his psychiatrist and also a psychologist on a regular basis. There was no challenge to the same.
In explaining his offending, the father said he had been under a considerable amount of stress due to the family law proceedings and the mother’s appeal – which was due to be heard on 30 July 2019; his level of medication had been reduced due to him experiencing negative side effects; he had completed his Court paperwork on the day he offended and before he went to lunch at the venue where he committed the offence; having been discovered whilst committing the offence, the victim chased him and he apologised and told her that he had a mental illness; he then deleted, in front of her, the video he had taken of her; he ran off, leaving his car there; when he returned later that afternoon with B to collect the car, he was arrested by police; at the scene he admitted being at the location but denied the offence but, when interviewed later that afternoon, he made full and frank admissions to the same; he said he had been under a lot of stress recently and was unsure why he committed the offence; he admitted to invading the victims’ privacy and that she had been engaged in a private act when he videoed her.
On the evidence before me, B was not present when the father committed the offence.
Having entered a plea of guilty in June 2019, the father was sentenced to 24 months’ probation; he has appealed the sentence; he also said that he had been told by the Judge that if he did not have any other charges in the period to February 2020, he would be sentenced pursuant to s 10 of the relevant Act, which would mean that the matters recorded would be that the offence was proved but no conviction would be recorded.
In seeking the order that he does about the current Application, the father relied on expert evidence obtained for use in the criminal proceedings.
In his report[39], Ms RR (a psychologist upon whom the father had attended between 2017 and January 2019 for assistance in managing depressive symptoms) noted that the father was under the care of Dr SS (the same psychiatrist he said, at the trial, that he had been attending upon); reported that he had been diagnosed in 2013 with a Bipolar II disorder and a Posttraumatic Stress Disorder and that the father had said that medication prescribed to him to treat his Bipolar Disorder had been significantly reduced prior to him committing the offence.
[39] Dated 17 June 2019.
I accept the father’s evidence that he continues to attend on Dr SS every month; he was not challenged about his evidence that he resumed taking his previous (higher) dose of prescribed medication in June 2019 and that he intends to continue to take this does in the future: I accept this evidence also.
I also accept that, following a referral from Ms RR, he has been seeing Ms TT, a psychologist. In her report (dated 19 December 2019), Ms TT advised that the father had had six session with her since July 2019; she stated he attended reliably and had engaged well in the therapeutic sessions, had been compliant with medication and was implementing a relapse prevention plan. She also reported that he had reported experiencing no thoughts, impulses or urges of a sexual or indecent nature and was managing any impulsive thoughts regarding other behaviours (such as excessive spending). Given that no issue was taken about the contents of Ms TT’ report, I accept the same.
Ms RR also provided a report (dated 12 December 2019) about B’s attendance on her; in it she outlines that, having presented for therapy in January 2019, B has engaged well and has not reported any concerns about his father during 17 sessions with her. There was no challenge to the contents of this report ad I accept the same.
Further discussion and conclusions
The mother, by the August 2019 Application, seeks to return to the position where B lives with her and spends supervised time with his father; she does so despite there being no evidence that she has addressed those matters which I determined were such as to require the imposition of supervision over her time with B. She continues to assert that B is at risk in the unsupervised care of his father – as she has previously done.
That the mother appears as convinced about B being at risk of harm in his father’s care now as she previously did suggests that it is much more likely than not that she would, in the future, behave toward the father as she has in the past – and approach her stewardship of B’s relationship with his father as she has in the past. In this respect, the comments made earlier at paragraphs [23] and [24] are relevant here too.
I am not persuaded by the contents of the report prepared by Mr QQ that the mother has addressed the underlying issues which I found and discussed in the lengthy and detailed Reasons for Judgment I delivered in support of the November 2018 Orders; I do not consider his evidence to establish that the mother has, via engagement with him, addressed those issues identified by Dr O, as discussed in the previous Reasons.
Rather than demonstrating any change to the mother’s underlying attitude toward the father and him having a relationship with B, the contents of Mr QQ’s report seem to me to establish clearly that she has not really changed her attitude to the father or to him having interactions and a relationship with B. There is no evidence from the mother herself to establish that she has addressed any of the issues or matters in her functioning, as these were identified in the November 2018 Reasons for Judgment, which expressed the reasoning underpinning the conclusion that it is in B’s best interests to live with his father and spend supervised time with her.
On the evidence proffered by the mother, there is very little – if any – likelihood of the November 2018 Orders being varied in a significant way as a result of a new hearing. I consider that, without evidence establishing a change of attitude and approach by the mother to the father’s involvement in B’s life and/or the development of insight into the adverse effects on B of exposure to her attitudes, the position remains as it was at the time of the trial.
I also consider that it is more likely than not that a renewal of litigation between these parents, given the history of the litigation in which they have previously been engaged, is highly likely to cause B significant disruption – even if only indirectly via the impact on his now primary care provider of further involvement in such a process. Given my assessment of the lack of likelihood of significant variation to the existing order, such disruption is unlikely to be outweighed by any benefit.
I am not persuaded that the circumstances outlined by the mother in the material she relies upon are such:
a)as to require the Court, acting in B’s best interests, to consider afresh how his “welfare” should best be served; and
a)that the Court is left in no doubt that it is necessary to re-litigate the parenting issues – previously determined by the Orders made in November 2018; and
b)that, if taken into account, there is a real likelihood that a change to the existing parenting order may follow;[40] and
c)that B’s best interests are likely to be served by further litigation on matters already decided upon and the subject of the existing parenting order.
[40] Per Collier J in King v Finneran (2001) FLC 93 – 079.
I am not persuaded that the evidence relied on by the mother establishes that circumstances have changed so significantly as to justify the parties embarking on another hearing at which issues substantially the same as those previously ventilated before and considered by me and determined in the November 2018 Orders (as supported by the Reasons for Judgment delivered in support of the same) would be canvassed.
In short, having accepted generally the submissions made on behalf of the Independent Children’s Lawyer and by the father, I am not persuaded that the material relied upon by the mother establishes a prima facie case of changed circumstances; if I am wrong in this conclusion, I am not persuaded that the evidence the mother relies upon establishes such a sufficient change to the circumstances I considered previously as to justify a conclusion that embarking on a fresh hearing in relation to parenting orders for B is something in his best interests. In my view, his best interests are better served by not being the subject of further litigation than by permitting the current application for parenting orders to continue.
For the Reasons expressed, I make an order dismissing the Initiating Application filed 7 August 2019.
Given that the father and the Independent Children’s Lawyer sought that an order for costs be made in each of their favours, I will also make orders that afford the parties the opportunity to be heard about such application via the provision of written submissions rather than requiring a further appearance.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 February 2020.
Associate:
Date: 7 February 2020
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