Moore & Shirley
[2022] FedCFamC1F 595
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 circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Moore & Shirley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
On 23 November 2018, I made final parenting orders in relation to B, who was born in 2013. These Orders, made after a total of ten hearing days, provided for B to move to live with his father and, from after early 2019, spend supervised time with his mother for three hours on the Saturday and Sunday of each third weekend.
As she has previously,[1] Ms Moore has commenced new parenting proceedings, by Initiating Application filed 17 August 2021, seeking orders different to the November 2018 orders. This Application was subsequently amended; the relevant application is the Amended Initiating Application filed 10 February 2022, by which Ms Moore seeks:
(a)the discharge of the November 2018 orders; and
(b)that interim parenting orders are made either for B to remain living with his father, Mr Shirley, and spend unsupervised time with her each alternate weekend or that he return to live with her and spend time with Mr Shirley each alternate weekend; and
(c)by way of final parenting order that:
(i)the parents have equal shared parental responsibility for the major long-term issues relating to B – although I note that, in her affidavit filed 23 January 2022, she appeared to resile from this position on the basis that Mr Shirley’s alleged behaviours are such as to make it unlikely to be an order which is in B’s best interests if he moved to live with her,[2] although she maintained that an order for equal shared parental responsibility would be in his best interests if he continued to live with his father; and
(ii)B live with her and spend time with Mr Shirley on each alternate weekend (from after school on Friday until noon on Sunday with Mr Shirley) and during the school holidays (for seven consecutive nights in all holidays other than those at the end of the year and for fourteen consecutive nights during the end of year school holidays) and communicate with him by Skype once per week (between 5.00 pm and 5.30 pm); and
(iii)amongst other orders, that both parents be restrained from having B tested for ADHD unless such testing is requested by his school or treating psychologist absent any request for such testing emanating from a parent.
[1]By Initiating Application filed 7 August 2019, which was dismissed by order made on 7 February 2020 for reasons delivered that day: see Moore & Shirley [2020] FamCA 56.
[2] At least this is how I interpreted paragraph 56 of Ms Moore’s affidavit filed on 23 January 2022.
As he has previously, Mr Shirley sought that the Court dismiss the Amended Initiating Application at a preliminary stage on the basis, in essence, that the evidence relied on by Ms Moore does not establish that there has been a sufficient change of circumstances[3] so as to warrant the Court, acting in B’s best interests, revisiting his parenting arrangements at this time.
[3] The application of the “rule” in Rice v Asplund (1979) FLC 90-725.
The competing positions advanced by B’s parents fall to be considered in circumstances where Ms Moore advances that:
(a)she has had regard to the existing parenting orders and the reasons for which they were made and has noted the recommendations made by Dr O and the author of the family report and has taken the actions outlined in her affidavits to work on her personal and parental growth; and
(b)since the November 2018 orders were made, she had spent time with B in accordance with them (save for on those occasions where this was not possible because of matters associated with the COVID-19 pandemic or other natural disasters) and had communicated with him by Skype or telephone each Wednesday for 30 minutes in accordance with them (apart from on those occasions when the father intervened to end the communication or B was engaged in an event or her call had not been answered).
Overview of Ms Moore’s position
Ms Moore’s position can, I think, be summarised as being, in essence, that B is currently at an unacceptable risk of suffering harm in Mr Shirley’s care and, consequently, his best interests require that the Court take immediate action to remove him from his father’s care and return him to live with her and make provision for him to spend unsupervised time with Mr Shirley each alternate weekend.
It seems to me that the matters Ms Moore advanced, in her affidavits and written and oral submissions, as persuading of the conclusions for which she contended included that:
(a)during a telephone conversation she had with B on 20 April 2022 she told him, in the course of advising that she was not going to be able to see him on the weekend of 23 and 24 April 2022, that she had not been the person who was responsible for this occurrence and the Contact Centre was not responsible – rather, it was the father who was responsible for them not going to be able to spend time together, despite her wanting to and being able to travel to do so and having tried to make this happen; and
(b)the above occurred in circumstances where she had asked the father via email on 4 April 2022 to change the dates of upcoming weekend and he had told her on 14 April 2022 that:
(i)he could not accommodate her request to change the weekend on which she and B spent time together because he had already made plans; and
(ii)when she had asked for changes in 2021 so that she could spend time with B on the Mother’s Day weekend, he had agreed to her proposal despite his reluctance (because it meant there would be a five week gap between B’s time with her) and that, consequently, he had made plans in 2022 that assumed the continuation of the changes made (at her request) in 2021 and so could not accommodate her 2022 request to make further changes or revert back to the arrangements as they were before 2021; and
(c)she asserted that the orders were impracticable, that Mr Shirley was not capable of following, or willing to follow, the November 2018 orders and support B’s time with her and that he did not communicate with her; and
(d)she was concerned about B’s psychological health and well-being whilst in Mr Shirley’s care – particularly that he was being exposed to family violence and being psychologically abused; and
(e)Mr Shirley:
(i)intentionally harmed B; and
(ii)was not concerned at all about B or his health and endangered him; and
(iii)alienated B from her and attempted to remove her from their son’s life; and
(iv)engaged in manipulation and coercive control and caused B to suffer emotional and psychological harm, including by denigrating her to him; and
(f)she had contacted police and asked that they do a welfare check (which happened on 16 January 2022 and which resulted in the police informing her that B was fine) because Mr Shirley had not responded to two messages and an email she sent him when, knowing that B was going sailing with his father and siblings from 13 January 2022, a tsunami and bad weather on 16 January 2022 caused her to be concerned about their son’s safety; and
(g)Mr Shirley (and his wife) have manipulated, coached or informed B of the contents of Mr Shirley’s affidavit so that, when she speaks with him and he speaks, for example, with the psychologist upon whom he attends, he says exactly the same things to her; and
(h)whilst Mr Shirley had previously said that he was the only parent willing to support B in having a relationship with both of his parents, he had not done so and possibly never had; and
(i)Mr Shirley has exposed B to derogatory and denigrating comments about her and that, in his household, B is ostracised and has the “lowest” position in the home; and
(j)the care arrangements Mr Shirley has made for B are unstable and unsupportive of B and that B has said that he is “scared” in the home and has expressed feelings of worthlessness to the point of wanting to self-harm; and
(k)whilst Mr Shirley generally tempers his own behaviours, he does not temper his behaviours when she is the subject of the same; and
(l)Mr Shirley has:
(i)informed B of parental discussions; and
(ii)labelled B as “bossy” and destroys his confidence; and
(iii)been unsupportive of B’s development and growth; and
(iv)failed to support, and is incapable of supporting, B’s relationship with her; and
(v)failed to address B’s health issue appropriately and has sought to control his bodily functions inappropriately by not allowing him to go to the toilet when he wants to; and
(vi)failed to take responsibility for his actions and blames others; and
(vii)shown he lacks the insight needed to appreciate the impact on B of his actions; and
(viii)instilled fear into B and has manipulated B to make comments adverse to her and has prevented B from having photos of her in the home and has scolded him if he asked for these; and
(ix)inappropriately monitored B’s time with her; and
(x)demonstrated escalating animosity toward her and has conditioned B to “break” her parenting style; and
(xi)attempted to create a competition between the parents in terms of their respective parenting styles.
Ms Moore also asserted that Mr Shirley had:
(a)deliberately sought to have his wife replace her position as B’s mother; and
(b)by continuing to investigate whether B has ADHD, rather than simply accepting that his behaviours are the consequence of stress and/or anxiety, acted in a manner that was harmful to B; and
(c)failed to ensure that B was not present at any time he and/or his wife made disparaging comments about her; and
(d)continued to demonstrate escalating animosity toward her and continued in his desire to remove her from B’s life.
Ms Moore also submitted, in essence, that:
(a)given B had told her he wanted to live with her until he dies and had been consistent in saying that he wanted to live with her and spend more time with her and his extended maternal family (and had never told her wanted to live with his father and had only mentioned wanting to see his father and half-siblings and “no other person within the father’s association” – which I took to be a reference to Mr Shirley’s wife) and that Mr Shirley had taken B’s views into account in deciding to change his school, his reported views about wanting to live with her and spend time with Mr Shirley should now be taken into account; and
(b)the Court would be persuaded that it is more harmful to permit B to continue to live with Mr Shirley in a household where she asserts family violence and psychological abuse is either taking place – or it is even a possibility that it is taking place, based on her evidence of a recording she took and the contents of Mr Shirley’s affidavit – and is either likely to continue (or there is a possibility that it will continue) as opposed to returning him to her care, especially given that there is no evidence to suggest any concern about the care she would provide B if he returned to live with her; and
(c)the evidence showed that Mr Shirley and those associated with him are “unable to comprehend the impact their behaviour has upon B’s mental health and ability to function in normal society”; and
(d)she had taken the comments made in the November 2018 Reasons for Judgment on board, had sought to educate herself to be a better person and parent, had admitted previous errors and had attempted to rectify the same and educate herself; and
(e)the ongoing implementation of the existing parenting orders will likely result in:
(i)B experiencing increased stress and anxiety; and
(ii)B being placed at an increasing risk of being alienated from her; and
(iii)an increased risk that B’s relationship with her will be severed; and
(f)as the existing parenting orders do not provide for a progression of B’s time with her to adapt to situations such as him growing older, they provide a “continuing need” to return to court or engage in future litigation as time passes; and
(g)the Court would be persuaded that:
(i)the evidence supports a conclusion that B is being psychologically abused in his father’s care; and, therefore,
(ii)there now exists a sufficiently changed set of circumstances as to warrant a revisitation of the existing parenting orders; and
(iii)she is child-focused, had undergone growth, had not been observed, when spending supervised time with B, to have made any comments adverse of the father in B’s presence, and supported B having a relationship with his father; and, consequently,
(iv)the only option is to make orders for B to be removed from his father’s care and to return to live with her.
Ms Moore submitted that the “new information” (namely, that Mr Shirley does not support B having an ongoing relationship with her, wants to remove her from the child’s life and the information contained in the father’s October 2021 affidavit) demonstrated a significant change in B’s circumstances such that the Court would conclude that his best interests require his current parenting regime to be revisited in the manner she proposed. She also submitted, in essence, that even if the Court was not persuaded that the evidence established a significant change in B’s circumstances, it would be persuaded by the same that he is at an unacceptable risk of harm such that his best interests nevertheless require the same review. She also advanced that, if orders were made for B to return to live with her, the Court would, in order to protect B, issue an injunction against Mr Shirley’s wife to prevent her from having any contact with B and to restrain her from attending any time he might spend with his father.
It is completely clear that Ms Moore denies all of the matters Mr Shirley alleges against her; she submitted he had no proof of these alleged behaviours (which she submitted constituted half-truths and amounted to nothing more than finger-pointing or an attempt to attack and antagonise her) or had projected his actions onto her or had created the same to make her look bad or inappropriate as a parent. She also submitted that the allegations were really a manifestation of Mr Shirley’s true views of her and demonstrated his negative views of her and that, consequently, it was increasingly likely B would be exposed to the same if he remained living primarily with his father.
The Notice of Child Abuse, Family Violence or Risk which Ms Moore filed on 17 August 2021 included that she did not allege that there was family violence or risk of family violence in B’s home; however, the same document she filed on 23 January 2022 contained the assertion that there was and that Mr Shirley and his wife were the perpetrators of the same; in the former document she did not allege that she or B had experienced any kind of family violence whereas, in the latter, she asserted that both had experienced emotional/psychological family violence; in the former she did not allege that there was harm or a risk of harm to B arising from mental health issues (but said she was unsure about this because no evidence – “by way of psychiatrist evidence” – about Mr Shirley’s current diagnosed mental health position had been provided since 2016) whereas, in the latter document, she positively asserted that there was no evidence to suggest the father had been diagnosed or treated correctly and that the evidence proved that B was being subjected to socially unacceptable behaviours and that Mr Shirley and his wife were unable to comprehend the impact their behaviour had upon B and his mental health and ability to function in society.
The content of the Notice of Child Abuse, Family Violence or Risk filed on 23 January 2022 and the matters to which mention has already been made above in summarising Ms Moore’s contentions seem to me to be at least somewhat inconsistent with her proposal that, if B returns to live with her, he should spend unsupervised alternate weekend time (on an interim basis) and consecutive-night holiday time (on a final basis) in Mr Shirley’s care.
Ms Moore submitted that she had attempted to ensure that B does not see Mr Shirley’s true behaviours and that, in contrast to the actions taken by Mr Shirley or others in his household, she has, in essence, shielded B from her views about the father. However, it seems to me that this submission overlooks entirely the fact that she was the parent who positively took steps to ensure that B was made aware of her position that it was Mr Shirley (and not her or the Contact Centre) who was responsible for them not spending time together on the weekend of 23 and 24 April 2022.
Further, her account of a conversation she had with B on 22 September 2021 included that, when B asked her if his last name could be “Shirley”, she told him that he could not and asked him who had told him to say that; told him that his father had asked that he not be called “Shirley” and that there was a rule against him being called “Shirley”; she also said that, when B told her that he wanted to change his name, she told him that his father wanted to change his name; when her son refuted this and said that he was the one who wanted to, she told him that he was not the one who wanted to do that because that was his name, there was a rule about it, she would enforce it and the rule was that he was not allowed to be called “Shirley”: when B asked her if they could stop the conversation she told him they could and that it should never have come up because she knew it would upset him and that she could have a word to his father about it.
Ms Moore also clearly sought to rely on the conversation she had with B on 19 January 2022 (which she recorded, as she does with all of her discussion with Mr Shirley and/or all of her Skype or Zoom conversations with B) as providing a foundation for a conclusion that he had been subjected to family violence and psychological and emotional abuse as a consequence of the father and his wife directly telling him that she was doing things to harm him (that is, that he was being exposed to negative comments about her). However, it seems to me that her transcription of the conversation establishes that:
(a)when B told her he knew that she had called the police (as she had on a number of occasions with the consequence that they attended at Mr Shirley’s home on a number of occasions) because “his parents” had told him that, she corrected him by emphasising that she is his mother; and
(b)she told B that she had been worried, had not received any answers to her messages and had no other choice but to call the police; and
(c)when B told her that having the police attend really scared him and he did not like them coming over, she told him the police were meant to phone and not turn up, that she did not try and scare him and that she had not done anything wrong (and neither had he) and that she just wanted to make sure he was safe; and
(d)when B told her they had been at City UU (which was nowhere near the tsunami warning), she told him she did not know that and there had been a marine warning – she then asked him again whom had told him she had called the police and, when he again said his parents, she challenged him about that because she was his mother and she had not told him that she had called the police; and
(e)when B then said that she calls the police sometimes, she said she had only called them a couple of times; when he said it was more like five times, she told him that was not her and that she had been accused of doing that but it was not her; when he said it was like three times, she told him that he should only have known about the most recent time, that she had not made that many calls and she did not know why he was being told that she was doing that – she continued to say that she apologised, but it was not her and she then told him again that she had called the police because she had been worried or concerned at the time because she did not know if he was safe: she told him she only called the police because she had been worried and did not get any calls back and that she had asked his father first; and
(f)following all of the above, B was upset and Mr Shirley ended the call.
Ms Moore admitted that she had previously emailed the father out of stress – her account included that it was poor form on her part to fall for such manipulation (which I took to be an assertion that the father had manipulated her to respond as she did) and that she had reacted poorly; she admitted to telling him that she would contact police and ask for a welfare check if he did not respond to her communications (although she also appeared to justify her actions on the basis that she regarded this as being the only way by which she could find out about B and his well-being); she admitted to asking police in May 2019, on 23 and 24 March 2021 and on 5 and 6 May 2021 to attend on Mr Shirley’s home to do a welfare check on B; she said that, whilst she had contacted police early on the morning of 5 May2021 to ask them not to carry out the welfare check she had previously requested, she had been told that the welfare check could not be called off (and it seems as though three police officers attended that morning before B went to school); she admitted that emails she had sent to Mr Shirley contained comments such as “you know what I will do and all come to light”, but said that this was really a poorly worded attempt to tell him she would take him back to court if things continued as they were (as opposed to them being threats) and she also admitted she could have better articulated her intentions.
Ms Moore also submitted that, having recognised the issue in her communication, she had educated herself further since then; she said she had completed many courses, attended seminars, listened to podcasts, read many books in her attempts to educate herself to be a better person and parent; she said had contacted her psychologist to locate courses that would assist her in managing her stress and that she was seeking to attend cost-effective anger management courses, the Circle of Security course and mindfulness courses when they are available to her. She said she had regularly seen a psychologist since 2018 (each few weeks) for the purpose of becoming a better person and parent; she also said she had tried to obtain an updated report from a psychiatrist for the Court but had found locating a psychiatrist who was taking new patients on and who was willing to review and prepare a report for court purposes was difficult, particularly given COVID-19.
Overview of Mr Shirley’s position
Mr Jordan of Counsel who appeared for Mr Shirley emphasised that – even though other aspects of the submissions he made on Mr Shirley’s behalf, based on his evidence, raised concerns about the impact on B of being exposed to his mother’s actions and conduct (even with the protection of the supervision provided by the existing parenting orders) – all the father sought, at this time, was that orders be made to dismiss Ms Moore’s application. He was clear in submitting that Mr Shirley did not want to litigate further about B’s parenting regime; he did not seek that the Court make any changes to the operative parenting orders despite his evidence about Ms Moore’s behaviours.
Mr Jordan submitted, in essence, that Ms Moore’s evidence failed to establish the existence of a significant change in B’s circumstances such as to justify the Court revisiting his current parenting arrangements. He noted that B’s entire life had, in one sense, revolved around litigation between his parents; that Ms Moore’s behaviours, as outlined in Mr Shirley’s affidavit, had caused B confusion, exposed him to her critical views of the father and added to his anxiety and distress – because she caused the police to attend at the house to carry out welfare checks, made comments to him to the effect that Mr Shirley’s wife is not his step-mother and his ‘grandma’ is not his grandmother and told him that she thought he should not take any medication his father gives him for ADHD because she does not think it is good for him.
Mr Jordan also highlighted that, unlike the position in the Notice of Child Abuse, Family Violence or Risk document first filed by Ms Moore (in which she did not identify issues of family violence), the more recent Notice of Child Abuse, Family Violence or Risk document she filed contained assertions that family violence existed, that she was sure of the existence of mental health issues and that B was being psychologically harmed in Mr Shirley’s care. He submitted that the content of Ms Moore’s affidavits filed in late 2021 and April 2022 was such as to provide the Court with no confidence at all that her view of Mr Shirley had changed, when compared to the view she was found to hold at the trial (as outlined in the Reasons for Judgment delivered in 2018 in support of the exiting parenting order) and in 2020 when her previous Initiating Application was dismissed: he submitted, in essence, that Ms Moore had not established that she had significantly changed or that she had addressed those matters identified in the Reasons for Judgment delivered in November 2018; that there was no evidence to support many of her assertions about his client’s care of B; that nothing in any of her affidavits established that there had been a significant change in circumstances and that there was nothing in her evidence to persuade of a course other than the dismissal of her Initiating Application at this stage so as to protect B from again being the subject of litigation between his parents about his parenting arrangements.
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.
As she has previously, Ms Moore seeks that B return to live with her; whilst she ostensibly advances that B should spend unsupervised time with his father, she continues to contend, as she has previously, that he is, and will be, at an unacceptable risk of suffering harm if he continues to live primarily with his father; as she has before, she proposes that B’s best interests require the making of orders restricting his ability to interact with members of Mr Shirley’s household. Whilst she asserts that she has, through various self-educatory efforts, addressed the issues or matters previously raised by Dr O (which were the subject of discussion in the Reasons for Judgment delivered on 23 November 2018) and those other matters addressed in the November 2018 Reasons for Judgment, there is no real evidence to support such assertion; in fact, taking up her own evidence, many of the underlying issues identified and addressed in each of the 2018 and 2020 Reasons for Judgment appear to me to remain. As noted in the February 2020 Reasons, Ms Moore continues to be as convinced about B being at risk of harm in his father’s care now as she previously has been; she has chosen to respond to Mr Shirley’s failure to respond to her communications in the manner she has sought to impose by having police conduct welfare checks by attending at B’s home on a number of occasions; and she appears as resolute in her condemnation of the way in which the father approaches his care and parenting of B as she has in the past.
I am not persuaded that the evidence Ms Moore relied on has established sufficiently that she has sufficiently addressed the issues or matters in her functioning, as these were identified in the November 2018 Reasons for Judgment – which Reasons also expressed the reasoning which underpinned the conclusion then reached that B’s best interests were met by moving to live with his father and spending supervised time with her. I am not persuaded that there has been any real change to Ms Moore’s underlying attitude toward Mr Shirley and/or to B having an ongoing relationship with him. I consider that Ms Moore’s account of her conversations with B (as discussed above) does little to demonstrate that she has, since the November 2018 orders were made, developed any meaningful insight into the adverse effects exposure to her attitudes has on B.
Having regard to the evidence proffered by Ms Moore, I think there is very little (if any) likelihood of the November 2018 orders being varied now in a significant way as a result of a new hearing. Further, nothing in the evidence now before me suggests that there is any reason to change the view I have previously formed to the effect that it is much more likely than not that a renewal of litigation between B’s parents about the parenting orders which are in his best interests is highly likely to cause him significant disruption, instability and anxiety. Given my assessment about the unlikelihood of any significant change being made to the existing parenting orders, such disruption, instability and anxiety are highly unlikely to be outweighed by any benefit to B.
I am not persuaded that the evidence relied on by Ms Moore establishes that the circumstances for B have changed so significantly as to justify the parents embarking on another hearing at which issues which are substantially and fundamentally the same as those previously ventilated would be reconsidered. I am also unpersuaded that the circumstances outlined by Ms Moore are such as to require the Court, acting in B’s best interests, to consider afresh how his welfare should best be served. I conclude that Ms Moore’s evidence does not establish that there has been a significant change of circumstances since November 2018 so as to persuade that B’s best interests will be served by his parents re-embarking on litigation about his parenting regime.
I remain firmly of the view that B’s best interests are better served by not being the subject of further parenting litigation than they are by permitting Ms Moore’s current application for a reversion to the parenting regime which existed before the November 2018 orders were made.
For the reasons expressed, Ms Moore’s Initiating Application will be dismissed.
Mr Shirley’s application for Ms Moore to be declared a vexatious litigant and associated orders
Whilst the Response to Initiating Application filed on 21 October 2021 on Mr Shirley’s behalf sought that Ms Moore be declared a vexatious litigant (and other orders associated with that) Mr Jordan quite properly accepted, in essence, that there was no proper basis for such orders. Consequently, Mr Shirley’s application for such orders (as outlined in the Response) will be dismissed.
I think it appropriate to record that, on the evidence before me, I would not have been persuaded to make an order declaring Ms Moore a vexatious litigant even if the same had been pressed by Mr Shirley.
Further matters and concluding comments
Insofar as Ms Moore sought orders that Mr Shirley be restrained from:
(a)making accusations or allegations about her in the vicinity or hearing of their son; and
(b)making “defamatory” comments about her in the vicinity or hearing of their son,
it is pertinent to note that Order 10 of the November 2018 orders already requires each parent to refrain from making derogatory comments about the other to, or in the presence of, their child.
Given Mr Jordan’s submissions about the issue of costs, the parties will be afforded the opportunity to be heard about the same via the provision of written submissions in the manner outlined in the orders which will be made.
For the reasons expressed above, the orders will be as outlined at the commencement of these Reasons.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 17 August 2022
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