Mullane and Burnham

[2016] FamCA 574

FAMILY COURT OF AUSTRALIA

MULLANE & BURNHAM [2016] FamCA 574

FAMILY LAW – PRACTICE AND PROCEDURE – Application to re-open parenting proceedings – Rice & Asplund (1979) FLC 90-725 considered – Where final orders made by consent provided for the mother to have sole parental responsibility for the child – Where the final orders provided for the child to live with the mother and spend increasing time with the father on a graduated basis –Where the father makes allegations in relation to the mother’s exercise of parental responsibility in circumstances where the child has various medical conditions and requires treatment – Whether there has been a sufficient change of circumstances that justify re-opening proceedings – Where the Court finds that there has not been a sufficient change in circumstances – Application dismissed.

Family Law Act 1975 (Cth) s 60CC

Newton & Henzel [2016] FamCA 323
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Mullane

RESPONDENT: Ms Burnham

FILE NUMBER: SYC 4673 of 2012

DATE DELIVERED: 14 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 30 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Ms Kennedy

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders

1. The father’s Initiating Application filed 27 April 2016 is dismissed.

2. The mother is to file and serve any written submissions on the issue of costs within fourteen (14) days of the date of these Orders.

3. The father is to file and serve any written submissions on the issue of costs within a further fourteen (14) days, following receipt of the mother’s written submissions.

4. The mother is to file and serve any written submissions in reply within a further seven (7) days, following receipt of the father’s written submissions.

5. Any judgment on the issue of costs is to be determined on written submissions 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 Mullane & Burnham 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 SYDNEY

FILE NUMBER: SYC 4673 of 2012

Mr Mullane

Applicant

And

Ms Burnham

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns an application by Mr Mullane (“the father”) who is the father of B (“the child”), which seeks to vary parenting orders that were entered into by the parties by consent before Judge Walker on 23 July 2014 (hereafter “the Consent Orders”).

2. The child was born in 2008 and is presently aged seven . The child suffers from Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiant Disorder (“ODD”). The child also suffers from a hereditary condition known as Fabry’s disease whereby the child lacks an enzyme that can lead to heart and kidney problems. Since the Consent Orders were entered into, the child has also developed cold induced urticaria which results in a rash from time to time after he is exposed to cold or engages in activity that causes perspiration.

3. The father argues that the Consent Orders have impacted upon the child receiving proper medical treatment, his education and other aspects of his day-to-day care. The father's application is opposed by Ms Burnham (“the mother”) who argues that, in accordance with the principles of Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”), the circumstances are such that it is unnecessary to revisit the Consent Orders made on 23 July 2014 and it would be inappropriate to do so.

4. At the hearing on 30 May 2016, where the matter came before me in the Duty List, I advised the parties that I intended to consider the Rice & Asplund argument as a threshold issue. The parties made submissions on that basis.

Background facts

1. The parties commenced cohabitation in September 2008.

2. In 2008 the child was born.

3. On 24 December 2009 the parties became engaged.

4. In February 2010 the parties separated.

5. On 2 August 2012 the father commenced proceedings in the Federal Magistrates Court (as it then was).

6. The parties entered into interim consent orders on 12 December 2012. Those orders provided for the child to live with the mother and spend time with the father each alternative weekend from Friday afternoon until Sunday afternoon.

7. In 2013 a daughter, C, was born to the mother and her current de facto partner, Mr D.

8. On 26 June 2013 further interim consent orders were made reducing the father’s time with the child to each Sunday on the basis that it was supervised by the paternal grandmother.

9. On 16 September, 2013 the report of the single expert, Dr E, was released to the parties. In that report, Dr E opined that:

   248. In my view, the father has significant personality dysfunction. The father has narcissistic and antisocial personality traits, which combine to create a pattern of recurrent aggressive or reckless behaviour.

   (Original emphasis)

10. Further, Dr E opined:

    291. …the relationship between the parents prior to and since separation has been characterised by a pattern of family violence perpetrated by the father against the mother.  

    292. It is important to note that in using the term “family violence” I am not suggesting that the father has necessarily been physically violent to the mother, though I think that he likely has been so. I am using this term… to denote a pattern of behaviour… that is coercive, intimidating, disrespectful and harmful. 

11. On 28 November 2013, against the background of Dr E’s report, the parties entered into further consent orders which increased the amount of time the child spent with the father on the condition that “the father has commenced the ‘Stress and Anger Management Course’ run by ‘Enough Is Enough Antiviolence Movement Inc’”. Pursuant to those orders, the time the child was to spend with the father was increased to each alternative weekend from 5.00 pm on Saturday until 4.00 pm on Sunday, as well as each alternative Thursday from 4:30 pm until 7:30 pm.

12. The consent orders also provided for the parents to consult a “therapist skilled in providing parenting advice and family and individual therapy”. The orders further prevented each parent from approaching the child when the child was in the care of the other parent and prevented the parents from taking the child for any psychological, psychiatric or therapeutic treatment without the written consent of the other party.

13. On 23 April 2014 the father and his wife, Ms Mullane, had a son, F.

14. On 23 July 2014, following a three day final hearing involving the parties and the Independent Children's Lawyer (“the ICL”), and in which the parties and the single expert Dr E were each cross-examined, the parties entered into the Consent Orders. The Consent Orders, which are now the subject of the father’s application, were expressed in considerable detail and, given their relevance to these proceedings, are set out in full below:

    1.That save as provided in orders 2 – 5, the mother shall have sole parental responsibility for the[sic] [B] born on … 2008 (“[the child]”) in relation to decisions concerning his long term care, welfare and development including, but not limited to the child’s:

    a.Education and schooling;

    b.Health and medical treatment;

    c.Place of residence;

    d.Extra-curricular activities; and

    e.Religion.

    2.The father has such parental responsibility as is necessary for any health professional or institution dealing with the child, including but not limited to doctors and allied health professionals, to:

    a.Obtain emergency such medical treatment as the child may require when he is spending time with the father; and

    b.Obtain any information about the child to which a parent is normally entitled, including but not limited to medical reports, treatment plans and the like.

    3.Each parent shall promptly provide to the other:

    a.The names and contact details of any medical, therapeutic or other allied health practitioner upon whom the children are required to attend other than minor complaint; and

    b.Details of any medical, therapeutic or other allied health appointment which the child is required to attend and/or treatment prescribed by such practitioners for the child,

    AND this order operates as an authority for each parent to obtain any medical, therapeutic or allied health practitioner information about the child’s diagnosis, treatment and care.

    4.Both parents shall follow the treatment recommendations made by any medical or allied health practitioner in their respective households.

    5.Both parents are authorised by these orders to obtain from any school(s) that the child may attend information about his progress and welfare, including but not limited to:

    a.Copies of all school reports, awards, and information regarding the child’s achievements and activities; and

    b.School photograph order forms so that each parent has the opportunity to order same; and

    c.Information about parent-teacher nights, sports and swimming carnivals, school concerts, prize-givings and events to which parents are normally invited.

    Living & “time with” arrangements:

    6.That [the child] live with his mother.

    7.That until the commencement of term 4, 2015, [the child] shall spend time with his father in a two week cycle as follows:

    a.Commencing 25 July 2014, and each second week thereafter, from the conclusion of school on Friday (or 5.00 pm if not a school day) until 5.00 pm on Saturday.

    b.Commencing 31 July 2014, and each second week thereafter, from the conclusion of school on Thursday (or 5.00 pm if not a school day) until the commencement of school on the immediately following Friday (or 5.00 pm if not a school day).

    c.During the gazetted school holidays at the conclusion of the terms 1, 2 and 3, the conclusion [the child’s] time with his father pursuant to order 7(a) shall extend to 5.00 pm on Monday on the first weekend that he would otherwise be due to be spending time with [the child].

    d.During the summer school holidays:-

    i.In the 2014- 2015 holidays the child spend time with Father from 9.00 am 29 December until 5.00 pm 3 January and from 9.00 am 22 January to 5.00 pm 25 January; and

    8.Provided that the father has complied with orders 13, 14 and 15 below, from the commencement of term 4, 2015, the child shall spend time with his father in a two week cycle as follows:

    a.On each alternate weekend from the conclusion of school on Friday (or 5.00 pm if not a school day) until Monday;

    b.On the immediately following Thursday, and each second  week thereafter, from the conclusion of school on Thursday (or 5.00 pm if not a school day) until the commencement of school on the immediately following Friday (or 5.00 pm if not a school day); and

    c.During the NSW gazetted school holidays at the conclusion of the terms 1, 2 and 3, the conclusion [the child’s] time with his father pursuant to order 8(a) shall extend to 5.00 pm on Wednesday on the first weekend that he would otherwise be due to be spending time with [the child].

    d.During the summer school holidays:-

    i.In the 2016-2017 holidays and every alternate year thereafter, [the child] spend time with the Father from 9.00 am 29 December until 5.00 pm 3 January and from 9.00 am 20 January to 5.00 pm 25 January; and

    ii.In the 2015-2016 holidays and every alternate year thereafter, [the child] spend time with the Father from 9.00 am 2 January until 5.00 pm 7 January and from 9.00 am 22 January to 5.00 pm 27 January.

    9.That [the child’s] time with the Father in accordance with 7(a) & 7(b) and 8(a) & 8(b) be suspended during summer school holidays and that following summer school holidays [the child] spend time with his Father in accordance with 7(a) or 8(a) in his first week of school.

    Special occasions:

    10.Notwithstanding any other order, [the child] shall spend time with his parents as follows:

    a.[The child] shall spend Father’s Day with his father, from 5.00 pm on the day before Father’s Day (being a Saturday) until the commencement of school on the immediately following Monday;

    b.[The child] shall spend Mother’s Day with his mother, from 5.00 pm on the day before Mother’s Day (being a Saturday) until the commencement of school on the immediately following Monday;

    c.Commencing 2015 and each alternate year thereafter, the child shall spend Easter with his father, from 9.00 am on Good Friday until 12noon on Easter Sunday;

    d.Commencing 2016 and each alternate year thereafter, the child shall spend Easter with his mother, from 9.00 am on Good Friday until 12noon on Easter Sunday;

    e.Commencing 2015 and each alternate year thereafter, the child shall spend Christmas with his father, from 9.00 am on Christmas Eve until 1.00 pm on Christmas Day;

    f.That where there is any inconsistency between Term time orders and special time orders the special occasion orders will apply.

    Communication:

    11.From the time [the child] turns 8, [the child] shall communicate with his father by telephone, Skype or in writing at any time [the child] requests such communication.

    Facilitation:

    12.[The child’s] time with their father shall be facilitated:

    a.That where these orders refer to [the child’s] time with the father commencing at “the conclusion of school” or concluding at “the commencement of school” and it is a school day, then the father or a family member of the father including but not limited to his wife is responsible for arranging collection of [the child] from and return of [the child] to school.

    b.That otherwise, all changeovers shall occur at interrelate children’s contact service at [Suburb G] (“[Suburb G] CCS”) with the costs associated with the family’s use of [Suburb G] CCS to be shared equally by the parties.

    c.If the [Suburb G] CCS is not open during the times at which the parties are due to changeover, then the parties shall be responsible for arranging changeover outside the front of the [Suburb G] CCS with each party to have the ability to bring one person from their immediate family to assist with facilitating changeover between the parties.

    13.That the mother and the father shall do all acts and things necessary to forthwith consult a therapist recommended to them by the Independent Children’s Lawyer in consultation with [Dr E] (“the family therapist”) to address the recommendations made in the Expert Report of [Dr E] dated 9 September 2013 and to facilitate this order each parent shall:

    a.Attend at such frequency and for such duration as directed by the therapist and encourage their respective partners to also attend as requested by the therapist;

    b.Accept all referrals (for [the child] and for themselves) and attend all programmes recommended to them by therapist; and

    c.Make [the child] available for consultations with the therapist;

    d.Be solely responsible for the costs of:

    i.Their own attendance at therapy; and

    ii.Any sessions attended by themselves and [the child]; and

    e.Share equally the costs of any:

    i.Attendances by [the child] at therapy; and

    ii.Therapy sessions attended by the entire family.

    14.Pursuant to section 13C of the Family Law Act the father shall as soon as practicable:

    a.Enrol in, and undertake to completion, a “Taking Responsibility” course offered by Relationships Australia; and

    b.Upon completion of that course, an anger management group through Relationships Australia.

    15.The father shall, forthwith upon completion of “Taking Responsibility”, provide to the mother his certificate of completion of that course.

    16.That leave be granted to the Independent Children’s Lawyer to provide to:

    a.The family therapist whom the parents jointly consult pursuant to order 13; and

    b.The course co-ordinators of “Taking Responsibility” and the anger management group referred to in order 14,

    With copies of the following documents:

    c.The final Orders in this matter; and

    d.The Expert Report of [Dr E] dated 9 September 2013.

    17.That the parents shall communicate with one another in relation to matters effecting [the child’s] care and welfare;

    a.In the event of an emergency by telephone; and

    b.At other times in writing by SMS text message or email, provided that their communication is limited to current and factual issues in relation to [the child].

    18.That the Father shall ensure [the child’s] consistent attendance at team sporting fixtures on weekends that [the child] is spending time with him.

    Injunctions:

    19.For a period of 2 years following the date of the date of these orders, each parent is restrained from taking any of [the child] to any other therapist for mental health treatment unless as directed by the family therapist in order 13.

    20.That each parent be restrained by injunction from:

    a.Physically disciplining [the child]; and

    b.Making critical or derogatory remarks in relation to the other parent in the presence or hearing of [the child] and that each parent do all things necessary to ensure no third party makes critical comments about the other parent in the presence or within hearing of [the child]; and

    c.Discussing the family law proceedings or any other legal proceedings in which either parents has been involved in the presence or hearing of [the child] or permits any other person to do so; and

    d.Attempting to influence the child’s views in relation to “time with” and living arrangements.

    21.Pursuant to section 68B of the Family Law Act, the father is restrained by injunction from:

    a.Attending the mother’s home unless specifically invited by the mother to do so in writing;

    b.Until the commencement of term 1 2016, the Father is restrained from attending events at [the child’s] school and extra curricular activities outside [the child’s] “time with” periods with the father provided he provide the mother with 48 hours notice of intention to attend such an event;

    AND this is an injunction for the personal protection of [B] born … 2008 and [Ms Burnham] born … 1988.

    22.That both parties be restrained from referring to [the child] by any other name than “[B]”, including that both parties are restrained from referring to the child as having any other surname than “[Burnham]”.

    23.That the father be restrained from causing [the child] to attend on any mental health professionals other than for the purpose of Order 13 herein.

    Passport:

    24.That the mother is to retain [the child’s] passport.

    25.That the parties do all acts and things and sign all documents necessary to ensure that [the child] always has a valid passport including:

    a.That within 14 days of being presented with a passport application by the mother, the father do all things and sign all documents necessary for [the child] to obtain a new passport including completing and signing the passport renewal form; and

    b.The father return the required paperwork to the mother within 14 days of being presented with that paperwork and the mother promptly submit the passport renewal forms and any other necessary documents to the passport office.

    26.That if the father either:

    a.Does not return the paperwork to the mother within 14 days of being presented with it as at Order 21, or

    b.No response is received by the mother from the father to a written request from the mother that the Father collect or accept from her such paperwork within 14 days of such request being made,

    c.Then the mother be at liberty to all acts and sign all documents necessary to apply for an Australian passport to be issued in the child’s name of [B], including that the mother may sign all documents on behalf of the father.

    27.That the parties do all acts and things within one month to cause the registration of [the child’s] birth certificate to record the Father’s name as [Mr Mullane].

Evidence

1. The father relied upon the following material:

   ·Initiating Application filed 27 April 2016;

   ·Affidavit of the father sworn 13 April 2016 and filed 27 April 2016; and

   ·Email from Mr H (family therapist) dated 26 May 2016 (Exhibit 4).

2. The mother relied upon the following material:

   ·Response to Initiating Application filed 25 May 2016;

   ·Affidavit of the mother sworn 24 May 2016 and filed 25 May 2016;

   ·Single Expert Report of Dr E dated 16 September 2013 (Exhibit 3); and

   ·Email from the father to the mother dated 13 March 2015 (Exhibit 5).

Orders sought

1. The father’s Initiating Application sought the following interim orders:

   1. [listing]

   2. That the Orders made 23 July 2014 be discharged.

   3. That the parties have equal shared parental responsibility for the child [B] born … 2008 (“the child”).

   4. That in the event of any disagreement between the parties of any decision regarding the child’s long term care, welfare and development, including matters regarding the child’s health and education, then the Father is permitted to make the decision in relation to the disputed issue and the Mother shall thereafter do all such things as may be necessary, if required, to facilitate the Father’s decision.

   5. That the child live with the Father as follows:

   5.1. During school term, from the date of these Orders until the conclusion of school Term 4 in 2016 in a fortnightly circle as follows:

   5.1.1. In week 1, from the conclusion of school on Monday (or 5.00 pm if not a school day) until the commencement of school on the following Tuesday (or 5.00 pm if not a school day);

   5.1.2. In week 2, from the conclusion of school on Thursday (or 5.00 pm if not a school day) until the commencement of school on the following Tuesday (or 5.00 pm if not a school day);

   5.2. During school term, from the commencement of school term 1 in 2017 and thereafter in a fortnightly circle as follows:

   5.2.1. In week 1, from the conclusion of school on Thursday (or 5.00 pm if not a school day) until the commencement of school on the following Tuesday (or 5.00 pm if not a school day);

   5.2.2. In week 2:

   5.2.2.1. From the conclusion of school on Monday (or 5.00 pm if not a school day) until the commencement of school on the following Tuesday (or 5.00 pm if not a school day);

   5.2.2.2. From the conclusion of school on Thursday (or 5.00 pm if not a school day) until the commencement of school on the following Friday (or 5.00 pm if not a school day);

   5.3 During school holiday periods from the date of these Orders:

   5.3.2. For half of the school holiday periods following the conclusion  school terms 1, 2 and 3 from the first Thursday following the conclusion of the school term at 5.00 pm until 5.00 pm on the following Thursday.

   5.3.3. During the summer school holiday periods, from 9.00 am on 31 December until 14 January at 5.00 pm.

   5.4 From 5.00 pm on the day immediately preceding Father’s Day until the commencement of school on Tuesday following Father’s Day;

   5.5 During Christmas in years ending in an even number, from 1.00 pm on Christmas Day until 9.00 am on 27 December;

   5.6 During Christmas in years ending in an odd number, from 9.00 am on Christmas Eve until 1.00 pm Christmas Day;

   5.7 During Easter in years ending in an odd number from 9.00 am Good Friday until 5.00 pm Easter Monday;

   5.8 Such other times as may be agreed between the parties in writing.

   6. That the child shall live with the Mother at all other times and including the following special occasions if the child is not otherwise already living with the Mother:

   6.1 From 5.00 pm on the day immediately preceding Mother’s Day until the commencement of school on the Monday immediately following Mother’s Day;

   6.2 During Easter in years ending in an even number from 9.00 am on Good Friday until 5.00 pm on Easter Monday;

   6.3 During Christmas in years ending in an odd number, from 1.00 pm on Christmas Day until 9.00 am on 27 December;

   6.4 During Christmas in years ending in an even number, from 9.00 am on Christmas Eve until 1.00 pm on Christmas Day;

   6.5 At such other times as may be agreed between the parties in writing.

   7. That in the event the child is unable to attend school due to injury or illness, then the party with whom the child is living at that time shall notify the other party as soon as practicable and shall cause the children to be delivered to the school office for collection by the other party or their nominee.

   8. That both parties shall facilitate the child communicating with the other party via electronic means such as telephone or Skype whilst the child is in their respective care.

   9. That the parties endeavour to facilitate the child’s attendance at his sporting and extra-curricular activities whilst the child is in their respective care, unless otherwise agreed between the parties in writing.

   10. That the parties forthwith do all such things and sign all such documents as may be necessary to facilitate the child receiving the following medical treatment:

   10.1 Allergy testing at the [I Hospital]; and

   10.2 Upon receipt of a referral from the child’s current paediatrician, clinical assessment by a child psychologist, such psychologist to be as agreed between the parties and subject to any recommendation by the parties’ family therapist.

   and for the purpose of this Order both parties shall attend at any appointments with such treating medical practitioners and shall comply with any diagnostic process or treatment prescribed by the said medical practitioners.

   11. That in the event that the child is prescribed with medication, then the party that was in attendance with the child at the time of receiving the prescription shall provide to the other party a copy of the prescription, or alternatively the prescribed medication, at changeover.

   12. That in relation to the child’s passport:

   12.1 That within seven (7) days of the date of these Orders, or at least three (3) months prior to the expiration of the child’s passport, the Father provide to the Mother a completed Passport Renewal Application for the child;

   12.2 That within seven (7) days thereafter the Mother is to correctly sign that form and return the completed for to the Father;

   12.3 That the Father thereafter attend to lodging with the Australian Passport Office the child’s renewal application form at his own expense;

   12.4 That the father is to retain the child’s passport unless required by the mother pursuant to these Orders.

   13. That the child be permitted to travel overseas with both parties conditional upon the travelling party providing to the other party two (2) months written notice of such intention to travel overseas together with the proposed dates of travel, and with an itinerary of the proposed travel arrangements including destination(s) at [sic] the date of the child coming into the travelling party’s care prior to the proposed departure dates.

   14. That in the event of the Mother travelling, the Father shall cause the child’s passport to be provided to the Mother at the commencement of the child’s time with the mother prior to the departure date.

   15. That each party shall inform the other party and shall keep the other party informed as to the following dates as soon as practicable:

   15.1. In the event that the child suffers any illness or injury requiring attendance at or admission to a hospital or requiring specialist medical treatment;

   15.2. The names and contact details of the child’s treating medical practitioner(s);

   15.3. Details of any medical appointment the child is required to attend and/or any treatment or medication prescribed to the child.

   16. That on a without admissions basis, both parties be and are hereby restrained from:

   16.1. Interfering with the other party obtaining information in relation to the child’s health or education;

   16.2. Physically disciplining the child;

   16.3. Making critical or derogatory remarks in relation to the other party, or a member of the party’s household or family, within the presence or hearing of the child and each party shall not permit any other person from making such remarks within the presence or hearing of the child;

   16.4. Discussing the proceedings to which either parent has been a party to or within the presence or hearing of the child;

   16.5 Attempting to influence the child [sic] views in relation to either party.

   17. That the Mother be and is hereby retrained from withholding the child from school on any day on which the child is required to attend at school unless the child is suffering ill health or injury, and is exempted from school by a medical practitioner on that basis, or otherwise in the case of an emergency or agreement between the parties.

   18. That each party shall be empowered to obtain information and communications in relation to the child’s education, extra-curricular and medical matters and each party shall sign all such documents as may be necessary to authorise the other party, at their own expense, receiving copies of such information and documents.

   19. That each of the parties keep the other informed of their contact telephone numbers and notify the other party of any change in their contact telephone numbers within twenty-four (24) hours of such change being effected.

   20. That in the event that either party fails to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Family Court of Australia at Sydney be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, documents or instrument upon the Registrar being provided with verification of such failure by way of affidavit.

   21. That the Mother pay the Father’s costs of and incidental to this Application.

2. The mother's Response to Initiating Application sought the following orders:

   1. That the Father’s Initiating Application be dismissed.

   2 That the Father pay the Mother's costs on an indemnity basis.

Contentions

Contentions of the father

1. By way of summary, the contentions of the father were as follows:

   a)It was accepted that the Court does not lightly entertain a reopening of a parenting matter unless there is a significant change in the circumstances.

   b)A significant change in circumstances can however include:      

   i)the use of bad language and dirty expressions;

   ii)the remarriage of a party;

   iii)stabilisation of accommodation; or

   iv)recovery from mental illness.

   c)There is no fixed or minimum period that applies in respect to revisiting the appropriateness of orders if the circumstances warrant it.

   d)The guiding principle in these proceedings, as in all parenting proceedings, is “the best interests of the child”.

   e)In determining the Rice & Asplund issue, the Court should take the father’s evidence at its highest. That is, if the father's evidence is accepted, would he be likely to succeed in obtaining the orders he seeks?

   f)In so far as the Consent Orders provide for the mother to have sole parental responsibility in relation to long-term decisions regarding the health and medical treatment of the child, those orders have caused problems in that the mother makes decisions which impact negatively on the day-to-day decisions that need to be made by each of the parents respectively when the child is in their care.

   g)The decisions made by the mother in respect to the health and medical treatment of the child have had a negative impact on the child and have therefore been detrimental to his welfare.

   h)The father is concerned that the mother fails to keep him advised of the child's attendance upon medical practitioners. A concerning example of this lack of communication was said to be that that the mother failed to advise the father that the child had been prescribed Prozac.

   i)Since the Consent Orders were made, a number of medical issues have arisen that reveal the mischief of the orders. Of most concern is that decisions are being made in respect to the child's medical treatment based on the input from one parent only, namely the mother. An example of that occurring is that the father has been unable to communicate to medical practitioners his own observations concerning a rash that the child has developed after being exposed to cold and on occasions engaging in activity in the heat.

   j)The mother has acted contrary to the Consent Orders in that she has failed to follow through on recommended allergy testing in respect to the child's rash. That testing, it is argued, has been in abeyance for approximately two years. The father is unable to take the child for further testing despite it being recommended because the mother is, by virtue of the Consent Orders, empowered to override the father's wishes in respect to the child's medical treatment.

   k)The mother has also objected to the child being provided with medical treatment from the general practitioner who treats the father’s other child, F. The father is concerned this may limit his ability to obtain medical treatment for the child in circumstances of an emergency.

   l)It would be in the best interests of the child for further allergy testing to be undertaken so that there is no issue as to what is the appropriate treatment for the child’s rash.

   m)When the mother advised the child's treating paediatrician Dr J about the child's anxiety in respect to attending further allergy testing, the child was prescribed Prozac. The mother failed to advise the father of that and, further, the mother declined to administer Prozac to the child.

   n)The father complains generally about the mother's delay in advising him of the nature of medical treatment provided to the child. He complains, for instance, that a medical report prepared in respect to the child in June 2015 was not provided to him until two months after the examination had taken place.

   o)There have also been issues in relation to the child's attendance at school when he is in the care of his mother. Those same difficulties have not arisen when he is in the care of the father. It was submitted that in the last year the child has had twenty whole day absences from school and fifteen partial absences. The Court would therefore be concerned that the mother is not able to manage the child and have him attend school.

   p)The father also expressed concern that whereas throughout 2015 the child’s school kept a journal in respect to his behaviour, it appears that the mother has now requested that the journal be no longer kept. The father has provided a copy of that journal to Dr J on one occasion in raising concerns with him about the child’s behaviour at school.

   q)The mother has failed to advise the father of changes in the child's medication which has varied between short-acting and long-acting Ritalin. The mother has also failed to provide the father with the child's medication when he is in the father's care. The father also complains about an inconsistency in the mother's evidence as to when she has or has not administered Ritalin to the child. For instance, the mother refers to a period where she ceased providing Ritalin to the child during a school holiday period. However, she subsequently refers to his behaviour improving upon the administration of Ritalin.

   r)More generally the father asserts that, in circumstances where an order is made for one parent to have sole parental responsibility for long-term decisions, it is more important to keep the other parent informed in respect of those matters particularly when the child is spending time with the father on weekdays and also on weekends. The mother’s failure in that respect, the father argued, amounts to a change in circumstances since the Consent Orders were made.

   s)While the authorities confirm that it is generally not in the best interests of a child for there to be serial litigation, it is not in the child’s interests for matters concerning his health, welfare and education to be left in their current circumstances. The matters raised by the father are of sufficient concern for the Court to at least entertain his application.

   t)Part of the father's application includes an application for an increase in the time the child spends with him. In that context the email from Mr H, the family therapist, expresses the view that “[The child] has been increasingly settled / improved since he is increase in time with you.”

   u)The father also expressed concern that the mother has not taken appropriate steps, within the time prescribed in the Consent Orders, to ensure that the child maintains a valid passport. In that respect the Consent Orders were argued to be deficient insofar as there is no provision for the mother to take action if so requested by the father.

   v)The father asserts that whereas the parties have had difficulty in communicating in the past, with the assistance of a therapist, Mr H, that situation has improved. This, it was submitted, is also a change in circumstances that the Court should have regard to.

   w)Even if the Court is not persuaded that it is appropriate to change the Consent Orders in respect to parental responsibility, the father has valid arguments as to why other aspects of his application, including increasing the time that the child spends with him, should be considered by the Court.

Contentions of the mother

1. By way of summary, the contentions of the mother were as follows:

   a)Counsel for the mother argued that the contentions of the father did not establish that there had been a change in circumstances since the Consent Orders were made, such that the Consent Orders should be revisited. In that respect, it was submitted:

   i.The issue in respect to the treatment of the child's ADHD was considered by Dr E when he recommended that the mother have sole parental responsibility in respect to the child’s health care.

   ii.The types of complaint that the father now makes in respect to the mother's conduct are of a similar nature to the complaints referred to by Dr E and which were considered prior to the Consent Orders being made.

   iii.The father’s negative view of the mother was a factor in Dr E recommending that the child be primarily in the mother's care.

   iv.The father’s long-term negative attitude towards the mother is referred to in the report of Dr E, and in that context, the Court should look to independent evidence, including the evidence from the child’s school principal, as to how the child is progressing at school. Reference was particularly made to Annexure M to the mother's affidavit. That positive report from the child’s school principal and deputy principal was provided despite the mother requesting the cessation of the journal being kept by the school in respect to the child's behaviour.

   v.While it was acknowledged that the child has developed a rash since the Consent Orders were made, the mother has sought appropriate treatment for that rash including subjecting the child to pinprick testing and blood testing. There is no justification for taking him to ongoing testing of a similar nature in circumstances where that testing has been traumatic for the child, who is a seven year old child that suffers from anxiety. This is particularly in circumstances where the tests would be conducted in order to resolve the difference of opinion between the parents rather than to determine appropriate treatment.

   vi.Dr J prescribed Prozac for the child as a result of the child's anxiety which was exacerbated by the prospect of the child attending further allergy testing. When the further tests were cancelled by the mother, the child’s anxiety subsided and the mother appropriately decided not to continue administer Prozac.

   b)In so far as the father has complaints regarding the operation of the Consent Orders, it was contended that the father’s remedy would more appropriately be pursued through an enforcement application.

   c)It was noted that the Consent Orders were made after a three day final hearing in which the parties had the benefit of hearing the oral evidence of the single expert, Dr E, in relation to the report he had prepared for the Court.

   d)The Consent Orders had been made in the context where there had been difficulties in communication between the parties including as result of the father’s temperament. In that context, reference was made to Exhibit 5, being the email from the father to the mother sent on 13 March 2015, as reflecting lack of consideration and an aggressive and unpleasant style of communication on the part of the father.

   e)It was argued that, aside from its contents, the fact that the email, which advised the mother that the father would not be picking up the child from school, was sent at 3:13 pm indicated the father’s disrespect for the mother to the detriment of the child.

   f)Reference was also made to a letter from Mr H dated 18 May 2016 wherein Mr H expressed his concern about the matter potentially returning to the Court as it “may put the child back in a high stress situation”.

   g)The primary consideration in these proceedings is the best interests of the child. In that respect the Court should note in particular the concerns of Mr H. It was submitted that Mr H's concerns are entirely consistent with the concerns that Dr E expressed in respect to the father's personality traits which, it was argued, are reflected in his email to the mother in Exhibit 5.

   h)The father’s conduct and his personality traits were considered by the parties’ solicitors and the ICL in formulating the detailed Consent Orders which, it was argued, were intended to develop parenting arrangements in the context of that behaviour and those personality traits. An important part of those arrangements was for the mother to have sole parental responsibility in respect to the matters referred to in Order 1 of the Consent Orders.

   i)It was submitted that the fact that the father has ongoing complaints concerning the mother and the mother’s parenting of the child is not a new development since the Consent Orders were made. It was argued that the orders were specifically crafted with the history of the father’s complaints against the mother and the father's personality traits in mind. The events subsequent to those orders have simply confirmed that the Consent Orders were appropriate and in the child's best interests.

   j)In respect to the father's assertion that the mother fails to provide the father with the child's medication, reference was made to paragraphs 35 and 42 of the mother's affidavit where the mother expresses concern that the father had not been administering medication to the child and therefore has decided that the medication should be administered by herself and by the child's school.

   k)The mother recognises that the child has had a number of absences from school but those absences have occurred in the context where the child has ADHD, has undergone testing in respect to his allergy and has required treatment for Fabry's disease. As against the father’s concerns, reference was made to the positive report from the child's school principal.

   l)In respect to the father’s concerns regarding the mother’s delay in signing the passport application for the child, counsel for the mother noted that the mother had had some concerns that the father had made the application for the passport as the parent with primary care. The mother was also concerned that the father had failed to provide her with details of the proposed travel. Nevertheless, at the hearing, the mother gave an undertaking that the relevant forms would be completed.

   m)In terms of relevant authorities, it was submitted by counsel that the Court would be concerned that if the father is successful in his application, the parties would again become embroiled in litigation for a period of approximately two years. The child would be required to attend a child inclusive conference and perhaps attend further interviews with a single expert appointed by the Court for the preparation of reports in respect to parenting matters.

   n)Further, it was submitted that there would be some risk of the father engaging in a battle for the child's primary loyalty during the course of further litigation.

Contentions of the father in reply

1. In reply, counsel for the father re-emphasised a number of her primary submissions and further submitted that:

   a)The Court should not draw an inference from the email sent by the father to the mother (Exhibit 5) that that email was for the purpose of advising the mother that the father was unable to collect the child from school on that day. It was submitted that the email could have been referring to another day.

   b)It was submitted that the poor style of communication that has occurred between the parties has not ceased as a result of the Consent Orders and that style of communication may continue between the parties, irrespective of whether the proceedings are re-opened.

   c)It was further submitted that poor communication may in fact increase if the father is “shut out” from the opportunity of having his concerns properly and thoughtfully explored by the Court through the re-opening of the proceedings.

   d)As the parent with sole parental responsibility for the child, the mother has failed to carry out that function responsibly.

   e)If the Court is to leave sole parental responsibility in respect to the matters referred to in Order 1 of the Consent Orders with the mother, the Court will need to be satisfied that the mother will appropriately and adequately inform the father about the child’s medical treatment, which it was submitted, she has to date failed to do so.

   f)There were a number of areas where the Consent Orders cannot be enforced because no specific obligation is imposed on the mother. This included:

   i)The obligation to give the child’s medication to the father to administer to the child while in his care;

   ii)The obligation to advise the father of medical treatment received by the child within a reasonable time; and

   iii)The obligation to complete a passport application within a reasonable time.

   g)Finally, it was once again argued that parental responsibility for the child is but one of the orders that the father seeks to vary and, even if the Court is against the father in that respect, there are other aspects of the father’s application, including to increase the time that the child spends with the father, such that the Court should allow the father to proceed with his application.

The Law

1. The authorities applying the principles of Rice & Asplund were considered in some detail by Macmillan J in Newton & Henzel [2016] FamCA 323. Her Honour’s useful summary was as follows:

   12. In Rice & Asplund Evatt CJ said at page 78,905 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 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…

   13. In McEnearney & McEnearney (1980) FLC 90-866, referring to the decision in Rice & Asplund, said at page 75,499 as follows:

   … the principle 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, 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.

   14. Strauss J said in Freeman & Freeman (1987) FLC 91-857 at pages 76,470 to 76,471 in relation to the effect of ongoing litigation as follows:

   The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.

   15. Although there have been amendments to the Act, not only does the rule in Rice & Asplund apply but as pointed out by the Full Court in DL & W [2012] FamCAFC 5; (2012) FLC 93-496 the provisions of s 69ZN of the Act, which sets out the principles the court must apply in child related proceedings, apply to a hearing where the rule in Rice & Asplund is being relied upon. The first of those principles set out in s 69ZN is that the “… 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”.

   16. The rule in Rice & Asplund may be applied as a preliminary matter or at the end of a full hearing. As Warnick J observed in SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 at paragraph 48, which has been endorsed by the Full Court (see Marsden v Winch [2009] FamCAFC 152, DL & W (supra)):

   (i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

   (ii)In its original formulation, the rule is directed to application as a preliminary matter.  Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing.  The consequences of that determination have received little attention.

   (iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

   (iv)Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.

   (v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   (vi)“Shorthand” statements of the rule may contribute to its misapplication.

   (vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.

   17. Warnick J in support of his observations with respect to the application being dealt with on its merits also said that:

   71.      An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would.  However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:

   Child's best interests paramount consideration in making a parenting order

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

   …

   81.      … when the threshold question described in Rice and 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 the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing.  Though sometimes unstated, the underlying conclusion will or ought 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.

   …

   84.      … The essential question however is as to the sufficiency of new events to provoke a new enquiry.  The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.

   18. In the more recent case of Poisat & Poisat (2014) FLC 93-597 the Full Court referring to the observations of Warnick J in SPS & PLS (supra) expressed their doubts at paragraph 54 “… as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made”.

Issues

1. The central issue to be determined is, therefore, whether there has been a sufficient change of circumstance since the Consent Orders were made that would justify the Court embarking on a hearing of the father’s application. In that context it is necessary to consider whether such a sufficient change in circumstances has occurred as a result of the following:

   ·Has the mother failed to exercise appropriate parental responsibility in respect to the child’s health and medical treatment?

   ·Has the mother failed to exercise appropriate parental responsibility in failing to provide the father with timely advice concerning the child’s medical treatment?

   ·Has the mother failed to exercise appropriate parental responsibility in respect to the child’s education?

   ·Has the mother acted unreasonably in failing to return a passport application form for the child to the father?

   ·Irrespective of the issues in respect to parental responsibility, should the father be permitted to proceed with his application more generally including his application for the child to spend additional time with him?

Consideration

1. I have approached this application on the basis that, in determining whether there has been a sufficient change of circumstances since the Consent Orders were made that justify the Court embarking on a hearing of the father’s application, the paramount consideration is the best interests of the child. In that context I have had regard to the matters set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”). It would somewhat artificial, however, in an application such as this, to address each of the section 60CC considerations. I have therefore mainly focussed on the two primary considerations set out in sub-sections 60CC(2)(a) and (2)(b), noting that section 60CC(2A) requires the Court to give “greater weight to the consideration set out in paragraph (2)(b)”. I have also had regard to section 60CC(3)(f) which relates to the capacity of each of the child’s parents to provide for the needs of the child including emotional and intellectual needs.

2. Counsel for the father argued that the father’s main concerns in respect to the child’s medical treatment are that:

   a)Medical diagnoses of the child have been made on the basis of the mother’s input alone;

   b)The mother has failed to follow medical advice in respect to the child undergoing additional testing in respect to his rash;

   c)The mother has failed to administer medication prescribed by the child’s paediatrician;

   d)The mother has failed to provide the father with the child’s medication so that the father can administer it when the child is in his care; and

   e)The father has been unable to arrange for the child to have medical treatment when in his care.

3. The complaint that the father has been deprived of input in respect to the child’s medical treatment is without substance. In fact, the nature of the father’s communication with the treating specialist who is treating the child’s allergy has given rise to the dispute with the mother in respect to whether the child should undergo further allergy testing. In turn, the child was prescribed Prozac to relieve his anxiety, in the context of his treating paediatrician being advised by the father that further testing had been recommended by the child’s allergist.

4. A clear diagnosis that the child’s rash was due to cold induced urticaria was confirmed in a written report from Professor K dated 12 March 2015 (Annexure E to the mother’s affidavit). The father acknowledged receiving Dr K’s report on 29 April 2015. Professor K is a consultant physician who is a Clinical Associate Professor of Medicine with expertise in clinical immunology and allergies. The report refers to and acknowledges the results of tests conducted by a Dr L one month earlier. Those tests, as the child’s subsequent anxiety about further tests suggests, do not appear to have been a particularly pleasant experience for him.

5. By further report dated 5 August 2015 (Annexure H to the mother’s affidavit), Professor K stated that he saw no reason to change his diagnosis of cold induced urticaria despite negative ice cube tests having been performed by him. Professor K did, however, note a difference in the observations of the parents in respect to the diagnosis and, on the basis of that difference, suggested that the parents could consider subjecting the child to “extended tests” at a major teaching hospital. This comment was included as a postscript to Professor K’s report. In full, it read:

   P.S     I am aware of the difference in opinion between the child’s mother and father and the fact that his father has reported his own observations to be at variance with his mother’s. I have based my professional opinion on information which I have to hand. I pointed out to [the mother] that if further resolution of this problem is required, the best solution, indeed the only solution, is for both sides of the story to be presented preferably to a consultant in a teaching situation where adequate and extended tests can be performed. I am not in a position to undertake this exercise and I feel it requires the resources of a teaching hospital.

   In the meantime cold induced urticaria is potentially a dangerous condition and should be treated seriously.

6. The difference of opinion referred to by Professor K appears to have been first raised in a facsimile transmission sent by the father to Professor K on 17 March 2015 in which the father interrogated Dr K in respect to his diagnosis. The facsimile transmission read:

   Dear Dr K,

   Re: [B Burnham] DOB: …2008

   I am [the child’s] Father and [the child] currently resides with me three days per fortnight and longer periods in school holidays.

   I have written this request for further information in conjunction with [Mr H] who is our family therapist and is treating [the child] for anxiety.

   I keep a diary of the time that [the child] spends with me. I have pulled out all examples that I feel are relevant to [the child’s] presentation of hives and your recent diagnosis of cold urticarial.

   Please review this table of examples and if you could please answer a few short questions for me and respond to both [Mr H] and myself via email to

   … and …

   1.Please explain how this history of presentation fits in with your recent diagnosis and treatment recommendations:

   2.Alternatively does this history of presentation cause you to alter your recent diagnosis and treatment recommendations:

   3.What objective clinical evidence, tests or investigations have you relied upon to provide your diagnosis and treatment recommendations?

   4.Do you recommend any further tests or investigations?

   5.Have you or do you intend to speak with [Dr M], at [I Hospital] (contacted on …) the child’s Geneticist. Could you please update me with the outcome of that conversation.

   Thank you,
   [Mr Mullane]

1. In short, the further “extended tests” as referred to in the postscript was suggested as a means of resolving a difference of opinion between the parents. A reading of Professor K’s reports does not suggest that he regarded those further tests as being a necessary part of the child’s treatment. The treatment Dr K recommended was a daily dose of 90 mg of Telfast, a range of practical measures which could be taken in respect to the child being exposed to the cold and a further review in twelve months.

2. The father, however, through his solicitors has continued to press for the child to undergo further testing at the I Hospital. In that respect, by letter dated 3 November 2015 (Annexure M to the father’s affidavit), the father’s lawyers wrote directly to the mother to advise her that, in order to ensure that the child’s condition is appropriately monitored and treated, the father had “taken the liberty of contacting teaching hospitals in Sydney and has inquired as to the possibility of making an appointment as recommended by [Dr K].” The letter noted that for an appointment to be arranged a letter of referral was required from the child’s treating paediatrician.

3. The course of action set in train by the father, as foreshadowed in the letter from his solicitor dated 3 November 2015, was confirmed by a letter dated 19 February 2016 from the I Hospital to the father (Annexure S to the father’s affidavit) which indicated that, subject to obtaining an updated referral letter, the child would undergo further testing at the immunology clinic on 7 June 2016.

4. It appears that the father continued with these plans for further testing despite the fact that, in his report dated 25 November 2015 (Annexure N to the father’s affidavit), Professor K referred to a further examination of the child on that day and commented that it was “very encouraging” that the child’s condition appeared to be resolving.

5. It is also quite surprising that the father sought to maintain his position in respect to the child undergoing further testing in the face of advice which he received from the child’s paediatrician who, by letter dated 29 February 2016 (Annexure V to the father’s affidavit), advised:

   [The child] has an extremely high degree of anxiety and the thought of his having another test I think would be very difficult for him. I am of the opinion that probably allergy testing should not be undertaken unless clearly recommended by his allergist.

6. The father acknowledges, at paragraph 93 of his affidavit that Dr J prescribed Prozac for the child as a result of the child’s levels of anxiety. Yet despite being aware of that anxiety, the father has continued to press for the child to undergo extensive testing in order to resolve the difference of opinion between him and the mother as to the nature of the child’s rash.

1. Further, the father met with the child’s paediatrician, Dr J, on 16 March 2016. Subsequent to that meeting, by letter dated 22 March 2016, Dr J noted the opinion of the father and his current wife that the child should undergo “extensive allergy tests in order to get a better understanding of the nature of the rashes which the child gets”. Dr J also noted that this was also the view held by the child’s allergist. It appears that the opinion of the allergist referred to by Dr J is the opinion of Professor K who, as noted, previously made the suggestion for the child to undergo “extended testing,” as a postscript to his report dated 5 August 2015, in order to resolve the difference of opinion between the parents regarding the nature of the child’s rashes.

2. In summary, contrary to the submissions made on behalf of the father, he clearly has had the capacity to find out information and provide input in respect to the child’s medical treatment. His input has given rise to the dispute between the parties in respect to the need for the child to undergo extensive allergy testing. This has, in turn, exacerbated the child’s anxiety and contributed to Dr J prescription of Prozac for the child.

3. The mother, by virtue of Order 1 of the Consent Orders, has sole parental responsibility in respect to the child’s medical treatment. As such, the mother is authorised to make the decision as to whether the child should undergo those further tests. The child has already undergone allergy testing and a clear diagnosis had been made in respect to his rash. The child clearly suffered anxiety in respect to the prospect of being subjected to further tests. In those circumstances, the mother acted entirely reasonably in giving greater priority to removing the source of the child’s stress and anxiety rather than resolving the difference of opinion between her and the father. The mother’s conduct was entirely consistent with her responsibilities as a parent as contemplated by section 60CC(3)(f).

4. Similarly, in the context of having removed the prospect of further allergy testing as a source of stress and anxiety for the child, the mother declined to administer Prozac to the child. The mother has also previously declined to administer Prozac to the child in the circumstances outlined by the mother in paragraphs 40 and 41of the mother’s affidavit. Again, her actions were entirely reasonable and appropriate and consistent with her obligations as a parent as contemplated by section 60CC(3)(f).

5. The argument that the Consent Orders should be varied as a result of the decision made by the mother to not subject the child to the further allergy testing is without merit. Similarly, the argument that the Consent Orders should be varied because the mother declined to administer Prozac to the child is also without merit.

6. In fact, the dispute surrounding allergy testing of the child demonstrates the wisdom of the parties’ legal advisers and the then ICL in allocating sole parental responsibility in respect to the child’s health and medical treatment to the mother.

7. As noted, an additional issue relating to the child’s health was the father’s complaint that the mother has not provided him with medication to administer in respect to the child’s ADHD condition. The mother alleges that, as a result of reluctance by the father to administer the child’s ADHD medication, she has arranged for the medication to be administered by either herself or the school since the start of the 2016 school year.

8. Annexure E to the father’s affidavit is an email that the father sent to Mr H dated 31 August 2015 wherein the father lists matters that he would like Mr H to raise with the mother. In the email the father states:

   [The mother] has ordered I give medication to the child without providing a medical report as support. I spoke to the Doctors rooms who advised that the child has not been seen since 1st June and recommendations had not changed. When I met with the doctor I was told the child is not required to have the medication everyday as a benchmark to see it working.

   To date I have not received notification from a doctor that the child should have medication every day, but if I were too [sic] then I would follow that advice.

9. This statement is surprising in the context where, at paragraph 45 of his affidavit, the father acknowledges that on 9 June 2015 he obtained a copy of Dr J’s report dated 3 June 2015 regarding the child’s ADHD medication (Annexure F to the father’s affidavit). Also forming part of Annexure F is a further report from Dr J dated 29 July 2015 indicating that the child takes 20 mg of Ritalin LA in the morning. It is not clear, however, whether the father had a copy of that further report at the time he sent the email to Mr H on 31 August 2015.

10. It is understandable that, as the parent with sole parental responsibility for the child’s health, the mother would want to ensure that arrangements were in place for the child to regularly receive his ADHD medication, particularly where it is important for him to be able to maintain his concentration on school days. At the same time, it would be important to avoid the prospect of a duplication of doses. In the context where the father, at least at late August 2015, indicated some reluctance to administer the medication on a daily basis and the mother had observed medication being returned in the child’s school bag, it was not unreasonable for the mother to make arrangements for the medication to be administered by the child’s school.

11. I note by email dated 27 January 2016, the father committed to providing the child with the medication “every morning [that] he attends school” (Annexure G to the father’s affidavit). In light of that commitment, this matter would seem capable of resolution without the need for any variation of the Consent Orders.

Has the mother failed to exercise appropriate parental responsibility in failing to provide the father with timely advice concerning the child’s medical treatment?

1. The contentions of the father that the mother has failed to provide timely advice to him in respect to the child’s medical treatment must be seen in the context of Orders 2 and 3 of the Consent Orders. Order 2 empowers the father to obtain any information about the child “to which a parent is normally entitled including but not limited to medical reports, treatment plans and the like”.

2. Order 3 requires each parent to “promptly” provide the other with the contact details of the child’s treating doctors and Order 3 specifically gives each parent the authority to obtain from any such practitioner information about the child’s “diagnosis, treatment and care”.

3. It is clear that the father has used this right of communication to considerable effect. He attaches to his affidavit several emails and facsimiles where he has requested information regarding the child’s medical treatment. The father has not been restricted in the information that he has requested. His communications make it clear that he has sought quite detailed information from the mother and the child’s medical practitioners.

4. The father complains that although he receives information from the mother as required by Order 3, she has not provided him with that information in a timely manner. The father complains, for instance, that he was not provided with the report of Professor K dated 12 March 2015 until 29 April 2015. Yet he acknowledges receiving advice from the mother by email dated 13 March 2015 that she had taken the child to Professor K.

5. A reading of Order 3 makes it clear that the each party has a responsibility to “promptly” advise the other of the “name and contact details” of any of the child’s relevant treating doctors and health practitioners. Thereafter, each parent has an equal right to “obtain from any medical, therapeutic or allied health practitioner” the relevant “information about the child’s diagnosis, treatment and care”.

6. The affidavits filed by both parties attach a number of text and email communications about the child’s medical treatment. In so far as the father alleges that the mother has not always provided the information to him “promptly”, it is a matter of enforcement rather than variation of the Consent Orders. Accordingly there is no basis for permitting the father to proceed with his application as a result of the alleged delay on the part of the mother in providing him with the information that she is already required to provide pursuant to Order 3.

7. In respect to the argument raised that the Consent Orders unreasonably constrain the father from obtaining medical treatment for the child when in his care, Order (2)(a) of the Consent Orders already empowers the father to obtain medical treatment for the child in situations of emergency. The dispute between the parents in respect to further allergy testing for the child, that I have outlined above, shows that it would be inappropriate to expand the circumstances as to when it would be appropriate for the father to obtain medical treatment for the child beyond that already provided for under the Consent Orders.

Has the mother failed to exercise appropriate parental responsibility in respect to the child’s education?

1. As noted, counsel for the father argued that the child has had an unacceptable number of absences from school when in the mother’s care. The number of full day and partial absences, it was submitted establishes that, as the parent with sole parental responsibility, the mother has neglected her responsibilities by failing to ensure the child’s regular attendance at school.

2. On the other hand the mother explains those absences in the context of the child’s medical conditions. These include ADHD, ODD, Fabry’s disease, allergies and anxiety as well as, on occasions, foot and mouth disease and glandular fever.

3. In the context of the father’s poor opinion of the mother, as referred to at paragraph 305 of Dr E’s report, it is appropriate for the Court to have regard to the available objective evidence. Attachment M to the mother’s affidavit contains a letter signed by the principal and deputy principal of Suburb N School where the child attends. That letter was provided to the mother on 23 May 2016 and reads:

   To Whom It May Concern

   Since [the child] commenced school at [Suburb N School] in 2014, his mother… has communicated with teaching staff and school executive on a regular basis. During these communications [the child’s] progress in all areas of his schooling have been discussed and where necessary accommodations and adjustments have been planned together and implemented. [The mother] has supported the school through signing off on these accommodations and following up recommendations from the school’s Learning Support Team. [The mother] has provided the school with health plans where necessary and the development of risk assessments to enable [the child] to participate safely in school events that may be impacted by his health conditions.

4. While it is the case that the child has had a significant number of days off school, they are readily explained in the context of his health challenges. Moreover, the letter from the school principal and deputy principal of Suburb N School reassures me that the mother is acting appropriately in fulfilling her role as the parent with sole parental responsibility in respect to the child’s education.

5. In deciding that the mother has fulfilled her responsibilities in respect to the child’s education, I have also had regard to the father’s concerns that the mother has requested that the school stop maintaining a log book that records the child’s behavioural transgressions.

6. I note that neither the principal, nor the deputy principal, have expressed any concern about the use of the log book being discontinued. Indeed, the discontinuation of the log book is entirely consistent with section 5(1) of the Disability Discrimination Act 1992 (Cth) which describes discrimination as occurring where a person “treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different”.

7. There is no suggestion that other children at the school are subject to such intrusive daily recording of their behaviour in a log book. It should not be done in respect to the child simply because he suffers from ADHD, unless there was clear evidence that it is in his interests for such a record to be kept. There is no such evidence before the Court to that effect. There is no reason to doubt that the school would make an appropriate record of the child’s behaviour where the school thinks it is appropriate to do so and there is nothing in the material before the Court that suggests a need for such intrusive daily monitoring of the child. Accordingly, there is nothing before the Court to suggest that the mother seeking to discontinue the log book monitoring of the child’s behaviour was inappropriate.

8. Indeed if it is the case that, as stated in his facsimile transmission to Professor K dated 17 March 2015, the father keeps a diary of the time the child spends with him, then there is perhaps an unwarranted zealousness in the father’s own monitoring of the child. 

Has the mother acted unreasonably in failing to return a passport application form for the child to the father?

1. A further ground relied upon by the father in seeking to re-open the parenting proceedings was that the mother had failed to sign a passport application for the child as required by Order 25 of the Consent Orders. Counsel for the father argued that, while Order 25 imposed an obligation on the father to sign and return relevant application forms to the mother within fourteen days of the forms being provided to him by the mother, there was no corresponding obligation on the mother.

2. The mother argued that Order 25 was to be construed as her being the person with responsibility to apply for the child’s passport and that it was therefore inappropriate for the father to have initiated such an application. It was also suggested that the mother held concerns that the father had identified himself as the child’s primary carer on the application form. This was not however confirmed as neither party introduced into evidence copies of the application forms said to have been completed by the father.

3. This issue was, however, resolved at the hearing with the mother undertaking to sign the necessary passport application forms. Accordingly, it is unnecessary to resolve the question of construction of the Order 25 and, in particular, whether it contemplates that the mother rather than the father should apply for a passport for the child.  Nonetheless, the dispute that has occurred between the parties regarding the child’s passport does not justify the father succeeding in his application to re-open the parenting proceedings.

Should the father be permitted to proceed with his application more generally including his application for the child to spend additional time with him?

1. The father relies on the email from Mr H to the father dated 26 May 2016 (Exhibit 4) in support his application for the child to spend additional time with him. In that email Mr H explains why he provided a letter dated 18 May 2016 to the mother wherein he expressed concern about the prospect of the parties recommencing litigation and its potential effect on the child. In the email Mr H stated that the letter dated 18 May 2016 “does indicate that [the child] has been increasingly settled/improved since his increase in time with you.”

2. That increase in time occurred as a result of Order 8 of the Consent Orders which provided that, on the precondition that the father had complied with Orders 13, 14 and 15, the father’s time with the child would increase from the commencement of Term 4 in 2015. Orders 13, 14 and 15 related to the father attending a “Taking Responsibility” course, an anger management course as well as participating in family therapy.

3. Mr H’s letter dated 18 May 2016 is contained in Annexure B to the mother’s affidavit and reads:

   Re: [B Burnham]

   DOB: …2008

   Therepeutic [sic] Summary :

   I have been seeing [the child] since December 2014.

   I see [the child] with his mother… fortnightly to monthly.

   I meet with [the child’s] father… & step mother… approx. every 2 months.

   [The child] was referred by [Dr E] of the Family Court to address emotional difficulties in the context of family issues.

   There have been some major historical issues in the relationship with his mother and father including a protracted family law court battle that was very unsettling for [the child].

   I have provided input to the parents around understanding the effects of high conflict on [the child]. They are also having input on managing his ADHD and anxiety conditions.

   I have been working with [the child] on a set of strategies for him to be able to manage his emotions. Particularly impulse control, anger and anxiety.

   There has been some marked improvement in [the child’s] emotional state particularly since the beginning of this year. He is more emotionally & behaviourally stable in both his parents care. The parents seem to be better understanding [the child’s] needs at this time.

   [The child] reports feeling “less in the middle of parental conflict”

   I am concerned to hear that the matter may be returning to court.

   This situation may put [the child] back in a high stress situation. Both parents would certainly be stressed and may struggle to see [the child’s] needs as before.

   (Emphasis added)

4. It appears that the reference to an improvement in the child’s behaviour since his time with his father increased was a reference to the emphasised paragraph. It is significant that Mr H attributes the improvement in the child’s emotional state to the fact that the parents “seem to be better understanding the child’s needs at this time.”

5. The fact that there has been an improvement in the child’s emotional state since the beginning of the year is encouraging but I am not satisfied that Mr H’s email of 26 May 2016 provides a basis for revisiting the Consent Orders. The fact that the child’s time with his father has increased is not a new circumstance. Indeed, it was specifically contemplated and provided for by the Consent Orders. The fact that Mr H thinks the increase in time has been successful is positive, but it is not a changed circumstance which justifies re-visiting the Consent Orders.

6. This is particularly so in circumstances where Mr H’s letter dated 18 May 2016 referred to his concern that the parties returning to Court would increase stress both parents and, in turn, they may “struggle to see the child’s needs as before”. Most significantly, in the context of having regard to the best interests of the child, the Court cannot ignore Mr H’s opinion that the reopening litigation between the parties “may put the child back in a high stress situation.” To do so would be contrary to section 60CC(2)(b) of the Act.

Exercise of discretion

1. The matters to which I have referred to above do not justify the father’s allegations  that the mother has failed to properly exercise her parental responsibilities pursuant to the Consent Orders nor do they, in turn, give rise to a sufficient change in circumstances that justifies permitting the father to proceed with his application to vary the Consent Orders. Even if I had found that any of the above had constituted a sufficient change in circumstances, I would have nonetheless been reluctant to exercise my discretion to permit the father to proceed with his application.

2. In forming that view I have had regard, in particular, to the father’s email to the mother dated 13 March 2015 which was sent at 3.13 pm on 13 March 2015 (Exhibit 5). That email read:

   I will not be picking [the child up].. you inflict child abuse on [the child] because you lie to doctors about how his condition appears so u [sic] can be right in maintaining the first diagnosis u [sic] googled

   [ is not allowing [the child] to come to our home anymore because she thinks it’s our presence in [the child’s] life that makes u [sic] do these things so I can’t have [the child] this wknd [sic] until I work out somewhere else for him to stay.

   Probably mums but she is away on a cruise right now

1. The submission that the email may not have been sent at 3.13 pm on a day that the father was to collect the child from school lacked any reasonable foundation. I am entitled to take judicial notice that 13 March 2015 was in fact a Friday. I note that, pursuant to Order 8 of the Consent Orders, the father was to spend time with the child commencing from after school each alternative weekend and in the alternate week after school Thursday until the commencement of school Friday.

2. The email referred to the father’s inability to have the child “this weekend”. It can clearly be inferred that it was sent on a day proceeding the weekend that the child was to spend time with his father. That day was a Friday and can only have been Friday 13 March 2015.

3. The fact that the father, literally, gave minutes notice to the mother of his inability to both collect the child from school and to have the child spend time with him that weekend illustrates gross discourtesy to the mother. Moreover, the tone of the email was highly inappropriate and included accusing the mother of inflicting “child abuse” on the child.

4. Fortunately, counsel for the father withdrew her submission that the father’s style of communication may become worse if the father is not permitted to proceed with his application. That submission was contrary to the more positive views of Mr H that the parties are, at least more recently, showing a better understanding of the child’s needs and that the child is feeling less in the middle of his parents’ conflict.

5. Mr H’s prediction of the parties becoming stressed by a return to litigation cannot sensibly be challenged. The fact that the father prevailed upon Mr H to subsequently express the view that perhaps the child could be “kept away from the issue” ignores reality. It is difficult to see how the child could be completely quarantined from his parents’ stress. If the father’s application is allowed to proceed, the parties will once again become embroiled in intense litigation which has been characterised by unseemly communication including between their respective solicitors.

6. It would be impossible to keep the child away from the litigation. He is now seven years old and would be required to be interviewed by an ICL, a Family Consultant and/or a single expert appointed by the Court. 

7. Despite those risks, the Court would be prepared to permit the father to proceed with his application if it was in the interests of the child for that to occur. However, there has been an insufficient change in circumstances that justifies revisiting the Consent Orders made on 23 July 2014. To permit that to occur would be contrary to the child’s best interests because he would inevitably become involved in the litigation and his parents’ ongoing conflict. This would be likely to cause him stress and be contrary to his psychological health and wellbeing.

8. Accordingly, I will dismiss the father’s Initiating Application.

9. Counsel for the mother foreshadowed an application for costs in the event that I dismissed the father’s application. Accordingly, I will include orders for the mother to file and serve a written submission on the issue of costs within fourteen days, the father to file and serve his written submission in reply within a further fourteen days and the mother to respond within a further seven days.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 14 July 2016.

Associate: 

Date:  14 July 2016