Nelson & Adkins
[2022] FedCFamC1F 100
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nelson & Adkins [2022] FedCFamC1F 100
File number(s): PAC 379 of 2021 Judgment of: RIETHMULLER J Date of judgment: 8 March 2022 Catchwords: FAMILY LAW – CHILDREN – Interim and variation orders – Variation of orders – Varying final parenting orders – Initiating Application filed by the non-resident parent seeking previous parenting orders made by consent be varied – Where applicant claims the children have suffered, or are likely to suffer, serious psychological harm as a result of resident parent’s actions or inactions –Consideration of Rice & Asplund threshold issue – Where no significant or relevant change in the children’s circumstances – Application dismissed Legislation: Family Law Act 1975 (Cth) Cases cited: CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
King & Finneran [2001] FamCA 344; (2001) FLC 93‑079
Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1
Rice & Asplund [1979] FamCA 80; (1979) FLC 90‑725
SPS & PLS [2008] FamCAFC 16; (2008) FLC 93‑363
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 28 January 2022 Place: Parramatta Solicitor for the Applicant: Ms Mason of Mason Mia & Associates-Solicitors & Advocates Counsel for the Respondent: Ms Webb Solicitor for the Respondent: Steele & Co Solicitor for the Independent Children’s Lawyer: Mr Pigott of JWP Lawyers ORDERS
PAC 379 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NELSON
Applicant
AND: MR ADKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
8 MARCH 2022
THE COURT ORDERS THAT:
1.That the application by the mother filed 28 January 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nelson & Adkins is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The mother filed an application on 28 January 2021 seeking to vary final parenting orders made by consent between the parties on 26 February 2018 with respect to the care arrangements for their two children, X who is now aged 10 and Y who is now aged eight. The effect of those parenting orders, in substance, is that the parties have equal shared parental responsibility for the children; that school holidays and special occasions are, otherwise, shared approximately equal between the parties; and that the children spend five nights a fortnight with the mother and the balance with the father. The substance of the changes sought in the mother’s application are that she seeks sole parental responsibility and that the children spend nine nights per fortnight during the school term with her.
The father seeks orders dismissing the mother’s application pursuant to the principal discussed in Rice & Asplund [1979] FamCA 80; (1979) FLC 90‑725. The relevant law was carefully summarised by the solicitor for the mother referring to the following authorities. The starting point is the well-known case of Rice & Asplund where it was stated:
7.The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
In CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67, in the context of the question of whether an appeal court should admit fresh evidence, McHugh, Gummow and Callinan JJ noted:
118.The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
In King & Finneran [2001] FamCA 344; (2001) FLC 93‑079 Collier J summarised the principles, saying:
44.To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
It was also noted that even if the changes sought are minor, this does not lesson the principle, his Honour explaining that:
64.… This is so because the purpose of the rule is to protect the children from exposure to further unnecessary litigation. If it were open to a litigant to achieve a re-hearing because he were able to argue that the changes he sought were minor and accordingly the change in circumstances or fresh matters that he needed to raise were accordingly reduced, this would produce ridiculous and nonsensical results.
In SPS & PLS [2008] FamCAFC 16; (2008) FLC 93‑363 Warnick J provided a useful summary, saying:
48. In my view, reflection on the rule shows that:
(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.
The principles lying behind the rule were articulated by Warnick J, saying:
56.As seen above, in Rice and Asplund, Evatt CJ recognised that a purpose of the rule was to discourage “endless litigation”. I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.
57.In In the Marriage of McEnearney [1980] FamCA 43; (1980) FLC 90‑866, Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499):
...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. (emphasis added)
58.Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
59.If the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.
60.If the rule is not applied until the end of a full hearing, they cannot; the parties will have litigated in a full hearing; likely that very situation will have impacted on the children, who however may have been more directly involved, for example, in interviews for a Report; public resources will have been expended.
In the following year, in Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1, the Full Court said:
48.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49.However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.[2]
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.
BACKGROUND
The mother was born in 1985 and is employed as a casual retail assistant, working approximately five days per fortnight.
The father was born in 1985 and is employed full-time as a tradesman, working occasional overtime on Saturdays when the children are not in his care.
The parties commenced their de facto relationship in October 2008, separating for a short period from December 2008, and then reconciling in January 2009. During the relationship, the mother suffered from mental health issues. In 2010, the mother was admitted to B Medical Centre, D City, presenting with depression and suicidal ideations. The father was noted by the clinic to be “very supportive” of the mother at this time.
In 2012 the mother reported to a Department of Family and Community Services (FACS) caseworker that she has thoughts of harming X when she was left alone with the child. In around 2012 the father says that the mother contacted him requesting that he come home from work to assist with X as she was not coping and felt overwhelmed. In 2013, when pregnant with the parties’ second child Y, the mother reported to FACS that she had thoughts about harming the baby. In 2014, the father says that the mother called him to request that he come home as she had picked up X by her throat and thrown her across the room.
The parties separated on a final basis in March 2014.
Unfortunately the mother’s subsequent relationship (following separation from the father) was marked by significant domestic violence. She obtained an AVO against her partner at that time, naming the children as persons at risk.
In May 2015 the mother’s psychologist contacted the father to care for the children for a period as a result of the mother’s mental health. The father says that when he took the children to the changeover that was arranged he decided to retain them as he had fears for their safety. The mother sought recovery orders in the Local Court at L Town in June 2015, however, orders were made for the children to reside with the father on an interim basis.
In October 2016 the father commenced his relationship with his current partner who lives with him and assists in caring for the children.
The parties reached an agreement in relation to the current care arrangements for the children and filed consent orders on 26 February 2018.
Following the consent orders the parties have divergent accounts as to each other’s level of attention to the children’s medical needs. The mother alleges that the father was inattentive, whilst the father alleges that the mother was overly anxious and took children to unnecessary medical appointments. Since separation the mother has contacted the police a number of times asking them to carry out welfare checks on the children whilst they are in the father’s care.
Prior to the making of the consent orders the parties were in receipt of a family report dated 30 March 2017. The report was very lengthy, running to 63 pages. Unfortunately, the family report writer did not have the benefit of the formal psychiatric assessment of Ms Nelson: see paragraph 156(j). The family consultant, at that time noted:
166.Based on her presentation during the assessment interviews and the quality of the interaction she demonstrated with the children there is evidence to support Ms Nelson’s self-report that she is currently feeling well. According to Ms Nelson’s own report she has worked to gradually “wean herself off her medication in co-operation with her psychiatrist”. Ms Nelson claimed that she is using a combination of listening to music as a form of therapy, implementing breathing techniques she has learnt to manage herself and regulate her emotions during stress and using fitness and exercise to as a preventative treatment to address the depression and moods. Ms Nelson stated that she feels “healthy and happy and stopped self-harm”. She contends that she is enjoying spending time with the children when she gets to see them, but finds it “hard not to worry about the children fretting for her”.
167.Taking all the risk factors identified together, on balance it is assessed that for X and Y to be returned to their mother’s primary care would represent a higher than acceptable risk. Based on Ms Nelson’s history there are two main risk factors:
a.That she may fall into depression and anxiety and develops a further mental health crisis;
b.If she begins enters a new relationship characterised by intimate partner violence and abuse which in turn is likely to undermine her mental health and her parenting capacity and decision making.
c.Ms Nelson may benefit from undertaking intensive therapeutic work and skills education around surviving family violence and how to act protectively for herself and the children in the future.
168.Comments from the J Childcare Centre confirmed [that] Ms Nelson’s reported concern about Mr Adkins may initially have been as care with attending to the children’s personal grooming and hygiene as conscientiously as their mother would have liked to see. The staff at the centre … also had some questions about Mr Adkins’s ability to take adequate responsibility for the standard of personal grooming and hygiene needed for the children. However, the children’s presentation during this assessment, along with current comments made by Ms E and the Director and staff at K Childcare Centre, J Childcare Centre, evidence that Mr Adkins’s parenting skills are developing and the children are well nourished and cared for.
Ultimately, the family consultant recommended that the children live with the father, which no doubt formed a significant piece of evidence leading to the consent orders that the parties reached.
During the current proceedings a registrar ordered that there be a Child Impact Assessment report prepared prior to listing this matter for consideration on the father’s application for dismissal of the mother’s proceedings. The Child Impact Report dated 30 June 2021 noted that there are a number of issues between the parties. Importantly, the family consultant preparing that report spoke to the children in order to obtain their views. It was noted that:
7. Y said he did not know which parent he would prefer to live with. Y said that each of his parents' homes and lifestyles were only a "little different." Y said that when he is naughty, his father "sometimes yells at us", whereas his mother "does not yell", but does "get a bit angry." He said that he would like it if he and X could have "Dad for one week and then Mum for one week."
8. Y said that he attends C School. He said that he likes school and the subject that he is "best at" is maths.
9. X said that she and Y live with their mother and father in "separate places" because their parents "broke up." X said that she likes both places, because she has "adventures" at both, X said that when she is naughty, her father yells at me, whereas as her mother "sends me to my room." X said that she was happy with the current parenting arrangements, but thought that it would be better if “Mum and Dad were nice to each other."
10.X said that she also attends C School. She said that she has "lots of friends" at school and that she loves Maths.
The reporter goes on to note in the Evaluation section of the report:
34.Each of the children spoke positively about each of their parents; and did not express a preference for either parent. X, however, raised the issue of parental conflict, commenting that the parenting arrangements would be better if her parents "were nice to each other." This indicates that, although the parents currently do not communicate directly, each of the children is likely aware of the parental conflict.
…
36.Each of the parents currently holds different views about the children's health, including mental health, and medical needs. Whether the children's health, and medical needs, are being impacted by one parent's medical neglect, or by the other parent's implication, or creation, of health and medical needs, when there are none, neither of these problems can be resolved in the context of the parents conflict. In circumstances, where children become the subject, or focus, of the parent's conflict, children can develop adjustment problems. Children can also come to blame themselves for their parents' conflict or problems.
THE MOTHER’S CASE
The mother’s case, set out in detail in her written summary, is put on the basis that there have been a number of factors which support the need for further proceedings in order to determine the most appropriate care arrangements for the children.
Decline in X’s mental health
The mother alleges that there has been a decline in the mental health of the child X, noting the diagnosis by a paediatrician in June 2018 of dissociative behaviour disorder and anxiety, and a GP providing a mental health plan for the child in August 2018 based upon “acute stress reaction and anxiety”. The mother has not provided any formal report from a treating medical practitioner nor a report from the psychologist upon whom the child had been attending. It was said in argument that the psychologist who was seeing the child X had declined to prepare a report, and as a result her notes were subpoenaed. However, in notes made on 4 June 2021 the psychologist reviewed the past couple of months with the mother and discussed the need for further sessions. The mother, child, and the psychologist agreed future sessions would be on a “as needs” basis. The notes described homework as being relaxation exercises. Even if the child had suffered considerable emotional stress following the separation and the arrangements of the parties, it appears that this has eased to the point where she may no longer require intervention from the psychologist.
Counsel for the father points to a letter dated 6 November 2020 obtained from the psychologist, which counsel described as a good summary of the intervention, in that letter it says:
“X was referred to M Health by Dr F (General Practitioner). X and her mother, Ms Nelson engaged in psychological counselling on 17 October 2018, and have since participated in 18 sessions of psychological counselling. These sessions have been therapeutic in nature, and involved interventions to help X adjust to her parent’s separation, and shared care arrangements (e.g. strategies to assist X transition between her parent’s houses, anxiety/ worry management, ways of dealing with nightmares). In addition to this, skills training has been undertaken with X (e.g. telling the truth, accepting ‘no’ and following instructions), and some parent education/ support with Ms Nelson.
During the course of treatment, Ms Nelson reported fluctuations in X’s progress (i.e. some improvements, as well as with angry outbursts, defiance and non-compliance). She also expressed concern over the potential impact of different parenting approaches/ styles (adopted by Ms Nelson and X’s father) on X’s wellbeing. However, more recently X indicated that although she was initially “sad” following her parent’s separation, she has become “used to it”.”
X’s asthma and glasses
The mother alleges that the child’s asthma has not been actively managed by the father and that he deputises this responsibility to his partner. The mother refers to an attendance by the child at the hospital for an asthma attack in May 2019 as being a consequence of this lack of management. The mother also says that the father had refused to allow the child to attend at a hospital after hitting her head on a bedside table when she was jumping on a bed in October 2015, but instead agreed to her attending upon a GP. Thirdly, the mother says that the father has not provided a spare pair of glasses for the child X in his household although it does not appear that the child has had any significant period without glasses when she has needed them.
The asthma attack and the fall when jumping upon a bed were a long time ago and appear to be isolated incidents. In both cases the child received medical care. There is nothing to indicate that the attendance upon a GP was insufficient in the circumstances. The complaints about glasses appear to sound in whether the father appears to the mother to take sufficient care to ensure glasses are always available, however, there is no evidence of the child being without glasses when needed nor any evidence from the school on this issue.
Y’s eczema and glasses
With respect to the child, Y the mother points to his diagnosis of chronic eczema in December 2018 saying that the father has not been sufficiently attentive to managing the child’s eczema. She also says that the father has not maintained glasses at his household for Y for his reading, watching TV or using his iPad. A number of documents were subpoenaed from the doctor and hospital indicating that both parents had taken part in the care of the child’s eczema. There is no evidence of an ongoing and unmanaged chronic difficulty with respect to his eczema. The father says in his affidavit that whilst the child Y has glasses for television and using devices he rarely wears them and he has never complained of eye strain or headaches nor have the school reported any difficulties. There is no evidence before the Court as to the strength of the eye glasses script for Y or the necessity for the child to wear the glasses.
The children’s hygiene
A further area in which the mother raises concerns relates to the hygiene of the children. She complains that the children are often dirty and wearing dirty clothes when they come into her care. The extent of the problem on the mother’s case, appears to be quite significant with her describing it in the following terms:
“Regularly come into my care in a filthy state, with ingrained dirt under their nails, uncut toe and finger nails, dirty clumps in their hair, dirty uniforms and socks. I return the children to school in clean uniforms and when I pick them up on Tuesdays for swimming they are often in the same underwear as I sent them in the day before. The children are smelly and unwashed.”
These allegations are denied by the father. Most significantly there is nothing in the school reports or subpoenaed medical notes to indicate that there is any cleanliness or hygiene problem with the children. Having regard to the severity of the allegations that the mother makes, it appears to me that it is extremely unlikely that such matters would not have been noted or raised by school teachers and/or medical professionals when seeing the children. Indeed, the contrary is the case with respect to the school reports, which provide positive comments about the children’s presentation and behaviour at school. Most recently the teachers of each of the children have sent positive emails to the father confirming the children had settled in well with the school.
The mother also raises issue with respect to the children’s dental hygiene saying that they eat too much sugar. There is no material from a dentist who may have seen the children’s teeth. The father says that the children brush their teeth twice a day in his care. Any issue with respect to the children’s teeth was not noted by the family consultant who attended upon the children to prepare a report.
X’s urinary incontinence
The mother also relies upon the child X having had ongoing issues with respect to urinary incontinence. This is accepted by the father, although it appears that in recent times this has resolved. The mother points to events in March and September 2020. The father deposes to appropriate interventions for the child whilst the mother alleges that the father is critical of the child’s difficulty causing the child to be scared to tell him about problems with incontinence. The father deposes specifically to the fact that since mid-April 2021 that X has not had incontinence difficulties at school. There is nothing in the teacher’s reports to indicate that this is an ongoing issue.
Issues with respect to father’s new partner
The mother raises concerns regarding the father’s current partner, Ms G.
At the time the Family Report was prepared in March 2017 the father said he did not have a new partner. The mother says that he had commenced a relationship with Ms G by this time. That there was some form of relationship is different to reparteeing or cohabitation, which are usually the events that impact upon care arrangements for children.
Ms G and her children began living with the father and the parties’ children in January 2019. The mother claims that this change is significant, and the nature of the relationship between Ms G and the children is unknown since she was not interviewed as part of the preparation of the Family Report. I am not persuaded that re-partnering, of itself, is so significant as to warrant reconsidering parenting orders – most people re-partner in today’s society.
The mother alleges that the children are exposed to inappropriate physical discipline by Ms G, and further alleges Ms G’s son assaults the parties’ child Y. The matters detailed in the affidavit of the mother appear to be claims with respect to incidents alleged to have occurred in 2017 and 2018, save for one incident where she says that one of Ms G’s children attempted to choke Y in November 2020. The allegations are denied by the father and his partner. There is no evidence of disclosures by the children to medical practitioners, educators or the family report writer to support the proposition that the incidents did occur and are beyond the range of usual household squabbles within families.
I am not persuaded that the matters raised in this regard are such as to warrant further children’s proceedings.
Other concerns
The solicitor for the mother also points to the fact that the children were very young at the time that the Family Report was prepared, and that the parenting orders were made by consent and not following a determination by the Court. These are both relevant matters to take into account.
The mother says that the children have a strong wish to live primarily with her, although the children’s reports to the family consultant on 28 June 2021 are a little different. The Child Impact report does not confirm this. The Independent Children’s Lawyer (ICL) advised that the children had told the ICL that if the Court chooses to change the arrangements their preference would be week about care.
I prefer to proceed on the basis that the versions of the children differ depending upon who they are speaking to at the time, not that the mother should be doubted on what she recounts. I also note (as was accepted by the mother’s solicitor) that for children of this age it is not uncommon to express wishes to spend more time with both parents, wishes that a parent would want to hear, and to see equality (such as equal numbers of nights) as ‘fair’ without appreciating that numerical equality may not be the most appropriate outcome in every case.
Importantly, the children have been living in the current arrangement since 2015, thus any orders would be to vary an arrangement that appears to have become relatively settled over that time. Indeed, the information from the psychologist indicates that difficulties that X has had coming to grips with the parenting arrangements have eased and she has become used to her parent’s separation. This is also consistent with the views expressed by the children to the family consultant.
Counsel for the father points to the lack of a psychiatric report with respect to the mother, even though she says she is under the care of a psychiatrist (paragraph 11 of her affidavit) and her relatively recent presentation at H Hospital in September 2020.
The father also expresses concern about the number of relationships that the mother has had since separation and the difficulties that have emerged from those relationships, such as the domestic violence with respect to the first partner following the relationship with the father, and her more recent relationship with a man whom it emerged had been involved with child pornography. The father notes that during the period of X’s incontinence she was being exposed to family violence in the mother’s household.
The children have the benefit of having an ICL in this case, who has taken the time to have a telephone conference with the children prior to this hearing. The attendance upon the children by telephone rather than in person was as a result of concerns related to COVID. The children presented well to the ICL who noted they love both their parents and stated that if there was to be a change to the arrangements they would want it to be only equal time. X expressed enjoyment of music, discussions with friends, and confirmed she did not feel that she needed to see the psychologist any longer.
The ICL is opposed to the proceedings continuing as the children appear to be in an appropriate arrangement meeting their needs at present.
CONCLUSION
This case concerns a family that has faced many difficult challenges over the last five to six years.
Despite the worrying nature of the mother’s mental health problems when the consent orders were made, orders were nonetheless made, and appear to have been faithfully implemented, to ensure that the children spend considerable time with the mother.
The concerns raised by the mother, when viewed in light of the subpoenaed evidence have an appearance of exaggeration.
Most importantly, the children are content and the current arrangements appear to be functioning better now than they have for many years. The children’s comments to the family consultant show considerable insight into the core difficulty that they are likely confronting, which is the acrimony between the parents. The children have expressed their desire that their parents behave in a better way towards each other. It is very likely that this would assist in resolving many of the children’s difficulties.
To subject this family to yet another period of litigation, with the children having to attend upon various experts for reports, appears to me to outweigh any likely benefits (if there are, in fact, any at all) of any potential changes to the current orders. At best, the proceedings would result in the Court further engaging in the minutiae of the acrimonious relationship between the parents, but nonetheless (even on the mother’s case) leave the children spending considerable time in each of the households. The circumstances of the children and the parents, whilst not precisely the same as those at the time of the orders, do not appear to have changed sufficiently to warrant further proceedings. If anything, the changes indicate that the children have settled into the current arrangements, and that their primary request that their parents ‘be nice’ to one another clearly articulates the most significant improvement that could currently be made to their lives. Of course, no court orders can force the parents to make such a change in their own behaviours.
In the circumstances I, therefore, dismiss the application of the mother.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 8 March 2022
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