Federal Circuit and
Family Court of Australia (DIVISION 1)Moore & Shirley [2022] FedCFamC1F 595
File number(s): BRC 10882 of 2021 Judgment of: HOGAN J Date of judgment: 17 August 2022 Catchwords: FAMILY LAW – PARENTING – 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 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 so as to justify embarking on a further hearing about those orders which are now in the child’s best interests – Where the Court is not persuaded that it is in the child’s best interests to revisit the current parenting orders – Where the mother’s Initiating Application is dismissed. Cases cited: Moore & Shirley [2020] FamCA 56
Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs: 36 Date of hearing: 28 April 2022 Place: Brisbane The Applicant: Self-represented Counsel for the Respondent: Mr Jordan Solicitor for the Respondent: Bookallil Family Law ORDERS
BRC 10882 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MOORE
Applicant
AND: MR SHIRLEY
Respondent
order made by:
HOGAN J
DATE OF ORDER:
17 August 2022
IT IS ORDERED THAT:
1.The Amended Initiating Application filed 10 February 2022 is dismissed.
2.Save in relation to the issue of costs, the Response to Initiating Application filed 21 October 2021 is dismissed.
3.In the event that Mr Shirley seeks an order that Ms Moore pay the costs of and incidental to the proceedings commenced by Initiating Application filed 17 August 2021, as amended by subsequently amended Initiating Applications:
(a)he 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 Mr Shirley seeking costs within a further fourteen (14) days thereafter; and
(c)Mr Shirley 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 in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited…
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CaseChat Overview and Summary
The central legal issue was whether the existing parenting orders, which had imposed significant limitations on the interactions between B and his mother, were still in the child's best interest. The court had to determine if there had been a material change in circumstances since the last orders were made in November 2018, and if so, whether the orders should be modified to reflect these changes. Additionally, the court considered whether further litigation would be detrimental to the child, given the history of conflict between the parents.
The court, in its analysis, reiterated the principles established in the previous decision to dismiss Ms Moore’s application, emphasizing the importance of considering the impact of continued litigation on the child. The court found that while there had been some changes in the circumstances since the last orders, Ms Moore had not sufficiently demonstrated that she had addressed the issues identified in the previous judgment. The court concluded that there had not been a material change in circumstances that would warrant a modification of the existing orders. The judge highlighted the ongoing strain in communication between the parents and the detrimental effect this could have on B, aligning with the previous findings that further litigation would not serve the child's best interests.
In conclusion, the court dismissed Ms Moore’s application for changes to the existing parenting orders. The court maintained the current arrangements, finding that they continued to be in the best interest of the child, B, considering the history of conflict and lack of progress in improving the relationship between the parents.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
Mr Jordan also emphasised, in particular, that the comments expressed at [15], [16(a)] and [26] of the Reasons for Judgment delivered in support of the orders made in February 2020 to dismiss Ms Moore’s previous Initiating Application remained pertinent insofar as they addressed the effect of further litigation on both B and Mr Shirley.Applicable principles, further discussion and consideration Given that there has not been any significant change to the principles to be applied since I determined Mr Shirley’s previous application that Ms Moore’s previous Initiating Application be dismissed on a preliminary basis, it is, I think, unnecessary for me to do more than to note that the applicable principles remain as I summarised them at [10]–[16] inclusive, [17], [18], [19] and [26] of the Reasons delivered on 7 February 2020.[4] As I did then, and reiterating that there is no principle that the “rule” expressed in Rice v Asplund[5] should never be considered prior to a trial, I consider, in the exercise of my discretion, that the same should be considered at a preliminary stage of the current proceedings.[4] Moore & Shirley [2020] FamCA 56.[5] (1979) FLC 90-725 at 78,905–78,906. I accept that, obviously, B is older now than he was when the November 2018 orders were made; I accept that the terms of those orders impose significant limitations on the types of activities in which he can engage with his mother. I accept that Ms Moore chafes against the restrictions and, in essence, continues to hold the view that B’s best interests would be met by living primarily with her. She continues to assert that she is the parent better able to meet B’s needs (including his need for a relationship with the parent with whom he is not living) and that he remains at risk of harm in Mr Shirley’s care; she says that, since the final parenting orders were made, the level of parental communication has further decreased (despite her efforts), has become excessively strained and is now at the point where there is no communication between herself and Mr Shirley other than as required to facilitate the provision of court-ordered information. Whilst Ms Moore asserted that she had addressed the issues identified in the Reasons for Judgment delivered in support of the November 2018 orders, I am simply unpersuaded on the evidence before me that this is the case. As I said in paragraph [33] of the Reasons delivered on 7 February 2020: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.