Mulligan & Stello
[2022] FedCFamC1F 1042
Federal Circuit and Family Court of Australia
(DIVISION 1)
Mulligan & Stello [2022] FedCFamC1F 1042
File number(s): ADC 4536 of 2022 Judgment of: KARI J Date of judgment: 21 December 2022 Catchwords: FAMILY LAW – PARENTING – Where final orders were made by consent – Where the father has made an application to reopen the parenting proceedings – Where the mother submits there has not been any change of circumstances since the final orders were made – Where the father is a sophisticated litigant – Where the mother asserts that the father should be held to the highest of standards when interpreting the terms of the final orders – Where the Court does not accept that there has been any change of circumstance – Consideration of the best interests of the children – Where the mother asserts that the children’s mental health would not withstand further litigation –Where the Court makes orders for the proceedings to be dismissed. Cases cited: Baisman & Cartmill [2022] FedCFamC1A 36
Banham & Banham [2021] FamCAFC 132
Marsden & Winch (2009) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
Trewitt & Brock [2021] FedCFamC1A 9,
Division: Division 1 First Instance Number of paragraphs: 79 Date of hearing: 01 December 2022 Place: Adelaide Counsel for the Applicant: Mr Hooper SC Solicitor for the Applicant: Carr & Co Counsel for the Respondent: Ms Lewis Solicitor for the Respondent: Barkus Doolan Winning ORDERS
ADC 4536 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MULLIGAN
Applicant
AND: MS STELLO
Respondent
order made by:
KARI J
DATE OF ORDER:
21 dECEMBER 2022
THE COURT ORDERS THAT:
1.Save as to the question of the extant cost application and any further cost application, the proceedings are dismissed as finalised.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
Introduction
These proceedings relate to the parties two children X born 2007 and Y born 2009.
Final orders were made in relation to the children on 18 August 2020 (“the final orders”). Those orders were made with the mutual agreement of the parties and at their mutual request.
The final orders provide for the children to live with the mother and that the mother have sole parental responsibility. They also provide for the children to spend time with the father in the following terms:
3.The children spend time with the [father] at times as agreed between the parties.
At the time the final orders were made, the children were not spending time with the father. That position has continued to the present day.
By Initiating Application filed June 2022, the father seeks orders for the Court to reopen the parenting proceedings.
By Response to Initiating Application filed 22 July 2022, the mother opposes that course of action. The mother relies on the principle in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”), which mitigates against the re-litigation of parenting arrangements in the absence of there being a significant change of circumstances.
For the reasons that follow, the proceedings are to be dismissed.
Background
The applicant father, Mr Mulligan, was born in 1948. He is 74 years of age.
The respondent mother, Ms Stello, was born in 1981. She is 41 years of age.
The parents are highly educated. They both have a tertiary education. The mother holds a postgraduate degree. She is currently employed as a public servant. The father is currently a senior level public servant.
The relationship of the parties spanned between 2002 when they began living together until 2019 when they separated. The parties were married in 2004 and divorced on 9 November 2020.
The father has three adult children from a previous relationship.
At the time that the parties separated, and while there is some dispute as to the exact arrangements and how they came about, in principle it appears that:-
(a)The children remained living in the former matrimonial home. The father also remained living in the home. The mother, at times, lived in the former matrimonial home in a separate bedroom, and at other times she lived in her own separate rental accommodation which was mere metres from the former matrimonial home. The mother describes the arrangement over this period as a “modified nesting agreement”[1].
(b)At some point (the mother asserts in October 2019), the mother took up full time residence in her separate accommodation and the parties implemented a week about shared care living arrangement for the children. This arrangement provided for the children to live with the father at the former matrimonial home each alternate week, and with the mother in her rental premises each intervening week.
(c)The week about living arrangement for the children continued until approximately February 2020.
(d)The parties then embarked on a mediation process.
(e)In the context of that process, the children spent time with the father, albeit that there was not a return to the week about living arrangements, and, on the mother’s case that time was not regular or predictable as the children were resisting time spending.
(f)The last period of time spending and/or communication between the father and the children occurred in May 2020.
[1] Mother’s Affidavit filed 16 August 2022, paragraph 174.
As I have indicated, the parties agree that they engaged in a mediation process regarding the parenting arrangements for the children as and from approximately February 2020. There is some conjecture about whether that process was “formal and structured”[2] as the mother asserts, or something different. Whatever the case may be, it is sufficient at this stage for the Court to understand that the parties embarked on a mediation process, and that this process involved not only a mediator, but additionally input from at least a child inclusive practitioner Ms B and the children each seeing their own psychologists, Dr D in the case of Y and Dr C in the case of X.
[2] Mothers affidavit filed 16 August 2022, paragraph 19.
It is not clear the extent to which the parties were legally represented and engaged lawyers to represent them for the purposes of the mediation process. However, the Court understands that from as early as February 2020, the father had engaged solicitors to represent him. While not entirely clear as to when the mother engaged solicitors to represent her, it is apparent that the mother had done so by at least 15 May 2020 when her solicitors wrote to the father for the first time. This letter takes on some prominence in the parties’ dispute, and I shall return to it later in these reasons. The solicitors that were engaged by each of the parties in 2020, are those that continue to represent each of them in these proceedings.
The parties mutually agree that the parenting arrangements came to a head in 2020, when the mother was collecting the children from a period of time spending with the father. The mother’s position is that there was an incident of family violence that day, witnessed by the children. The father denies this assertion, but acknowledges that the mother “interpreted” his actions that day as “some form of threat to her and/or the children”.[3]
[3] Fathers affidavit filed 23 May 2022, paragraph 54.
Moreover, it is the mother’s case, which is vehemently denied by the father, that:-
(a)The marriage was characterised by family violence, including but not limited to physical abuse and coercive and controlling behaviour perpetrated by the father;
(a)The father used illicit substances; and
(b)The father has mental health difficulties.
The letter that was sent by the mother’s solicitors to the father’s solicitors on 15 May 2020 (“the May correspondence”), was lengthy. It was sent after the alleged incident of family violence after the children’s time spending with the father in 2020. The letter, among other things, set out matters from the mother’s perspective summarised as follows:-
·“…there is a complex history including family violence, substance abuse and mental health issues pertaining to [the father]”.
·“mediation has now broken down”.
·The children had witnessed the incident in 2019 [presumably an error and meant to read 2020], and that they had become “distressed”, they having witnessed “incidents of a similar nature” both during the marriage and following the parties’ separation;
·The mother considered that the father needed to “address a number of issues that at present are causing a distress to the children and historically have made it difficult for these parties to reach a final agreement, as to all outstanding parenting matters between them”;
·The mother proposed that the father undertake three specific courses, “Taking Responsibility – A Course for Men, Managing Anger and a Post Separation Parenting Course”.
·The mother also proposed that the father submit to random urinalysis testing within 24 hours of any request from her.
·The mother also proposed that the father continue to consult his treating psychiatrist or psychologist, with the father to provide an authority permitting the mother to liaise directly with those professionals so that she could be “assured directly” as to the father’s compliance with treatment recommendations.
·The mother proposed that any time spending between the father and the children be supervised.
·The mother thereafter proposed that the parenting arrangements be reviewed in 12 months’ time.
·The mother directed that the father refrain from contacting her directly by email or text message, with all communications as to parenting arrangements (other than urgent maters) to be conducted through the mother’s solicitors.
It does not appear that the father, nor his solicitors, responded to that communication. The correspondence was sent to the father again in about January 2021, and again there was no response.
In the meantime however, the parties agree that on 18 August 2020 the final orders were made. They were brief and concise in their terms and provided as follows:-
1.The wife have sole parental responsibility for the two children of the marriage namely [X] born […] 2007 and [Y] born […] 2009 ("the children").
2.The children live with the wife.
3.The children spend time with the husband at times agreed between the parties.
The parties were legally represented for the purposes of the negotiations prior to the making of those orders, and when the orders were made.
The legal framework
Counsel for each of the parties’ has properly identified that the principles which guide the Court for present purposes are those that are well established and enunciated by Evatt J in Rice & Asplund in the following terms at 78,905-6:
… .[the Court] 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 circumstances 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… It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served…
…
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. ...
In addition, it is identified in SPS & PLS (2008) FLC 93-363, as follows:-
48. …
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”
…
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.
The material relied upon by each of the parties
Each of the parties have filed extensive documents in the proceedings, including but not limited to affidavits, subpoena and objections to subpoena.
At the commencement of the hearing, the parties through their respective counsel ultimately agreed that the determination of the Rice & Asplund dispute should proceed on the papers, without the Court being troubled by any peripheral disputes (particularly those as to subpoena) or further evidence.
The father relied on the following material:-
(a)His Initiating Application for Final Orders filed June 2022;
(b)His affidavit sworn 23 May 2022;
(c)His affidavit sworn 2 September 2022;
(d)The affidavit of Mr E (a friend of the father and a Psychiatrist) filed 2 September 2022;
(e)The affidavit of Ms G (who describes herself as the mother’s close friend and personal confidant) filed 2 September 2022;
(f)The affidavit of Ms H (who describes herself as a friend of the parties) filed 2 September 2022; and
(g)The affidavit of Ms J (who describes herself as a close family friend of the parties) filed 2 September 2022.
The mother relied on the following material:-
(a)Her affidavit filed 16 August 2022;
(b)Her Amended Response to Initiating Application filed 16 August 2022;
(c)Her Notice of Child Abuse or Family Violence filed 16 August 2022;
(d)The affidavit of Social Worker Mr K (whom the child X has attended upon) filed 16 August 2022;
(e)The affidavit of Mr L(who describes himself as a friend of the mother) filed 16 August 2022;
(f)The affidavit of Clinical Neuropsychologist and Clinical Psychologist Dr F (who is the mother’s treating practitioner) filed 16 August 2022;
(g)The affidavit of Clinical Psychologist, Dr C (who is the child X’s treating practitioner) filed 16 August 2022; and
(h)The affidavit of Clinical Psychologist, Dr D (who is the child Y’s treating practitioner) filed 16 August 2022.
The position of the parties’
The father’s position
In summary, the father proposes that there be two stages to the parenting proceedings if they are to be re-opened:
(a)In the first instance, a Family Consultant of the Court meet with the children to ascertain their views and wishes for the purpose of producing a report; and
(b)Thereafter and upon the father considering that report, he will articulate the orders for time spending that he seeks with the children including whether the proceedings be discontinued by him.
The father’s Initiating Application seeks final orders in the following terms:-
1.Orders for the children to spend time with the Husband during the school week, on weekends, during the school holidays and on special occasions at times and on terms to be further specified following the obtaining of any wishes of the children and expert report.
As to the Rice & Asplund principle, the father’s position is that there has been a significant change of circumstances which warrants a new enquiry regarding the parenting arrangements for the children.
The father asserts this changed position to be that at the time the final orders were made, he had a reasonable expectation that there would be time spending between he and the children in the future, and this has not come to fruition. He says he held a reasonable expectation about future time spending for two reasons:-
(a)Firstly, because the terms of paragraph 3 of the final orders themselves anticipate that there would be time spending, but that the terms and occasions of time spending were to be the subject of agreement; and
(b)Secondly, because the father asserts that he was led to believe, principally by an intermediary assisting the mother (Mr M), that if parenting orders were resolved on the basis that the mother have “total and sole guardianship of the children”[4], there would not need to be any of the conditions set out in the May correspondence, and once a Consent Order was made, there could be a “reconciliation/reintroduction”[5] between the father and the children.
[4] Fathers affidavit filed 23 May 2022, paragraph 62.
[5] Fathers affidavit filed 23 May 2022, paragraph 63.
The father asserts that despite attempts following the making of the final orders, he has not been able to reach agreement with the mother for him to spend time with the children, in part as the mother has sought to impose, or at least have the father respond to the terms that she had prescribed in the May correspondence.
The father otherwise expresses concern that the mother has moved residences, and that she has changed the children’s school, such that he now does not know where the children live or anything about their education, progress and development.
It is these combined circumstances which the father asserts could not have been anticipated by the final orders, and ground his submission that there has been a significant change of circumstances.
The mother’s position
The mother, on the other hand, posits that there has not been any change of circumstances and moreover, that there have been no change in circumstances that warrant any need to revisit the final orders.
The mother asserts that the only change of circumstances that has occurred since the making of the final orders is the father’s desire to now litigate the matter; litigation being something the mother had been threatening prior to the making of the final orders, and which the father was keen to avoid.
The mother asserts that for a range of reasons, the father should be held to the highest of standards when interpreting the terms of the final order. She asserts this because, the father was legally represented, but more importantly because of his education and employment status.
The mother asserts that in all of those circumstances, the father could not possibly have been under any misapprehension that:-
(a)Firstly, she would not lightly waive her demands relating to time spending first set out in the May correspondence, particularly as she had not given any indication to the father that she would do so; and
(b)Secondly, that when coupled with the fact that there had been no time spending between May 2020 (when time spending ceased) and August 2020 (when the final order was made), any plain reading of the final orders meant that time spending between the father and the children would only occur if the mother consented to it. Particularly given the final orders provided for the mother to have sole parental responsibility and that the children live with her.
The mother otherwise asserts that Mr M was not her intermediary, and that she made no promises as to whether, or on what terms, time spending would occur between the father and the children if the father agreed to final orders in the terms that were ultimately made.
The second limb of the mother’s argument is that even if the Court was satisfied that there had been a change of circumstances, the Court must consider the impact on the children of any further litigation.
The mother’s first complaint in this regard is that the final orders sought by the father are “incompetent” and not one capable of being made or enforced by the Court.
More importantly however, the mother’s position is that the children’s mental health would not withstand further litigation and is contrary to the children’s views as conveyed to their treating practitioners.
In support of this assertion the mother has filed three reports:-
(a)A report from Clinical Psychologist Dr D, who has been Y’s treating psychologist since August 2019;
(b)A report from Clinical Psychologist Dr C, who has been X’s treating psychologist since February 2020; and
(c)A report from Social Worker, Mr K, whom Dr C referred X to for the purposes of conveying X’s wishes to the Court.
So far as Dr C is concerned, the Court understands that Dr C is of the view that X is a “mature minor”[6] who did not consent to the provision of a report, and that X herself did not want her therapeutic relationship with Dr C to be jeopardised by the provision of a detailed report to the Court.
[6] Dr C confidential psychological report dated 09 August 2022 at paragraph 4.
The Court otherwise understands that the principal opinion of each Dr D and Mr K as to Y and X respectively is that they do not wish at present to have a relationship with the father, and that they each hold their respective concerns for the mental health of Y and X if there was to be further litigation about their parenting arrangements.
It is the mother’s position that when all of these matters are combined, the circumstances of these parties and these children are the very type of further litigation that the rule in Rice & Asplund exists to prevent.
Has there been a change of circumstances?
In order to answer this question, more needs to be said about the approach to be taken by the Court.
This is because there is a dispute between the parties as to whether the father should have had any expectation that the mother would facilitate time spending once the final orders were made.
This dispute is centred on a factual dispute between the parties as to what, if anything, Mr M said to the father, and if said, whether it was said on the mother’s behalf.
As earlier identified, the mother denies that she asked Mr M to act as her intermediary in negotiating parenting matters between the parties.
Critically, while the father has filed a number of witness affidavits, he has not filed an affidavit from Mr M that confirms the father’s version of events. Equally it must be said, the mother has not filed an affidavit from Mr M confirming that he did not act as her intermediary in the negotiations.
The father submits that, as identified by Tree J sitting as a single Judge on appeal in Baisman & Cartmill [2022] FedCFamC1A 36, the correct approach in circumstances where the “rule” in Rice & Asplund is sought to be invoked at an early stage, is that the rule:-
11.… may be invoked by way of an application for summary dismissal (in which case the court is likely to proceed on the basis of taking the applicant’s case at its highest and not permitting cross-examination).
However, treating the applicant’s case at its highest does not require the Court to blindly accept all of the matters contained in the applicant’s material and entirely ignore the matters deposed by the opposing party. In Banham & Banham [2021] FamCAFC 132 (“Banham”) at [45-48], Strickland J sitting as a single judge on appeal, specifically considered the evidence to which the Court is to have regard in situations such as these. Importantly, in Banham, one of the grounds of appeal contended by the appellant mother was that in dismissing her application to re-open parenting proceedings, the primary judge had erred in failing to treat her case at its highest and instead had afforded weight to the evidence of the respondent father. In dismissing that ground of appeal, Strickland J identified:-
46.There can be no doubt that when a court is considering the application of the rule in Rice & Asplund as a preliminary issue, where no oral evidence is given, and there is no cross‑examination, that the starting point for the court is to take the mother’s evidence at the highest.
47.However, that does not mean that the court is to ignore the mother’s evidence given at the time that the original orders were made, or not take into account evidence that is before the court that the mother’s evidence does not address, or evidence that does not conflict with her evidence, or even to not draw inferences from the mother’s own evidence. Further, as the mother herself submits in her Summary of Argument, the court should “accept the evidence of the mother unless it is inherently incredible” (paragraph 11 of the mother’s Summary of Argument); and I add, unless it is internally inconsistent, or inconsistent with other evidence given by the mother in the proceedings. I also note that the mother’s counsel conceded that his Honour was able to assess the evidence in order to determine its significance.
48.It also must not be forgotten that even accepting the mother’s evidence at its highest, it is still open to a court, for proper reason, to find that the evidence before the court does not demonstrate a change sufficient to embark on a full rehearing.
Adopting the comments made in Banham, it is of some significance that the father has failed to put evidence before the Court from Mr M. In the absence of the father doing so, and given the significance which the father himself puts on this evidence to ground his assertion that there has been a change of circumstance, it is difficult to conceive why it might be that the father has failed to adduce this evidence. Particularly in circumstances where he has filed a number of witness affidavits.
Bearing in mind that the father bears the onus of establishing that there has been a change of circumstances, and that the change is one that justifies the Court embarking on a hearing[7], his failure to put evidence before the Court from the very person at the centre of the factual dispute is in my view fatal to his application.
[7] Per Marsden & Winch [2012] FamCA 557
If however I am wrong about these matters and I were to accept the father’s assertions about Mr M, I accept the further submissions made on behalf of the mother that the father is a sophisticated litigant and that he should be held to a higher level of understanding of the Court process and the final orders.
This conclusion is relevant not only when considering the father’s failure to put evidence before the Court from Mr M, but it is also relevant when turning to what the father should have understood from the events that preceded the making of the final orders and the terms of the final orders themselves.
The agreed facts that inform the final orders are, that from May 2020 (when the mother’s solicitors sent the May correspondence) and for some three months prior to the making of the final orders, the children were not spending time with the father. In addition, there is no dispute that prior to May 2020, there had been difficulties with the children’s time spending with the father.
When turning to consider the terms of the final orders, they are best described as absolute. In particular, the children are to live with the mother and she is to have sole parental responsibility for them. The terms of the order for parental responsibility do not oblige the mother to consult with the father before making any decisions about the children, and significantly for present purposes, the mother is not obliged to inform the father about any matters related to the children. Given those terms, it is difficult to understand the father’s present complaint that he does not know where the children are living, or where they attend school, because such an outcome was entirely foreseeable by virtue of the terms of the order for parental responsibility.
When considering the order for time spending, again it is absolute in its terms. There is only to be time spending if both parent’s agree. As such, it is readily understood that if there is no agreement between the parents, then there is to be no time spending between the children and the parent in whose favour the order for time spending is made.
I do not accept the proposition of the father that despite the absolute nature of the final orders, the father held a reasonable belief that time spending would resume, such that he can now use it to ground the necessary foundational change of circumstances. Such an assertion is incongruous when consideration is given to all of the events that preceded the making of the order (even if the assertion about Mr M’s representation is accepted), coupled with the terms of the final orders.
Moreover, I do not consider that the factual dispute about Mr M and his alleged representations is one that is determinative of the question of whether the father held a reasonable belief that time spending would resume. Rather it is but one factor that must be weighed together with all of the other evidence, about which there is no dispute.
In addition, it is my view that the terms of the final order are such that even an unsophisticated litigant would understand them, let alone an educated and legally represented litigant such as the father.
In Trewitt & Brock [2021] FedCFamC1A 9, Aldridge J had cause to consider the terms of a final order which provided supervised time spending between the child and the father “as agreed between the parties”. At [36], his Honour commented that these orders meant that “the issue of what time there would be, if any, was left open to the mother entirely.”
Moreover, I accept the submissions of the mother’s counsel that the father himself identified that he understood future time spending would effectively be at the sole discretion of the mother. This is illustrated by the following portion of the father’s affidavit sworn 23 May 2022 where he deposes the following:-
59.In the months following [the May correspondence] [Ms Stello] made proposals for final orders which included requirements for supervision of my time with the children, for my time to be in [Ms Stello’s] sole discretion, for me to acknowledge that family violence had occurred during the relationship and a threat to commence proceedings in Sydney. I refused to agree to such terms but was very unsettled by the prospect of Court proceedings either here or in Sydney.
60.For a variety of reasons and following discussions with a range of people I formed the view that if I agreed to [Ms Stello] having parental responsibility and the children living with her, and financial matters were resolved, then [Ms Stello] may become more prepared to support my relationship with the children. It was a very difficult decision for me to proceed with the Consent orders and I was under considerable pressure with [employment] duties at that time.
(Emphasis added)
It is for all of these reasons that I do not accept that there has been any change of circumstance in all of the circumstances of this case.
The impact on the chidlren of further litigation
In light of the conclusion that I have reached that there has not been any change of circumstances for this family, it is not necessary that I consider the impact on the children of further litigation.
However for the avoidance of doubt, and should I be incorrect in my earlier conclusions, I consider it necessary to make some comment in this regard.
In Marsden & Winch (2009) 42 Fam LR 1 (“Marsden & Winch”), the Full Court commented:-
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.”
I accept the submissions made on behalf of the mother that the final orders currently promoted by the father, are not ones that the Court could make. They are ambiguous, indeterminate and unenforceable.
This is in and of itself fatal to the father’s application, because as identified in Marsden & Winch, the Court must assess the likely changes to the parenting arrangements and weigh those changes against the impact on the children of re-opening the parenting litigation. In the absence of the father clearly particularising the parenting orders that he now seeks, it is impossible for the Court to assess the whether a further litigation would be “demonstrably contrary to the best interests” of these children.
The Court understands that the father’s application has two parts, firstly the preparation of a report and secondly and thereafter an amendment to the application for final orders to particularise the parenting orders that he now seeks. In advancing that position, the father’s counsel identified that it was a very real possibility that the children would convey to the Family Consultant that they did not wish to have a relationship with the father, and that in those circumstances the father would give consideration to whether he discontinued these proceedings.
These submissions appear to have been made with some level of acceptance and / or resignation on the father’s part to the information and opinions conveyed in the reports from each, Dr C, Dr D and Mr K.
While the father is critical of the mother for having obtained these reports, it is difficult to ignore their contents, particularly as they contain a record of the children’s current views about their relationship with the father and the prospect of one in the immediate future. The reports from the children’s treating practitioners are not only reports which once obtained the mother was required to disclose, but they are also reports which are admissible.
In the case of X, who is 15, it is also difficult to imagine a circumstance where her views would not ultimately be determinative of the question of her time spending with the father in any event.
It is also impossible to ignore the views expressed by the experts as to the detrimental impact on the children if there was to be any dispute and/or litigation about their parenting arrangements.
With all of these factors in mind, the overarching difficulty with the father’s position is that it appears to lack regard for the impact on the children of any litigation over their parenting arrangements; and / or the impact on the children of having to enunciate their views to another person.
Conclusion
For all of the reasons that I have identified, I am not satisfied that there has been a sufficient change of circumstances to justify further or ongoing parenting litigation.
For all of these reasons, I make the Orders that appear at the commencement of these reasons.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 21 December 2022
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