Nielsen and Springer (No 2) - [2020] FamCA 1079

FAMILY COURT OF AUSTRALIA

NIELSEN & SPRINGER (NO. 2)

[2020] FamCA 1079

FAMILY LAW – CHILDREN – Where final parenting orders were made in September 2019 after a defended hearing – Consideration of the rule in Rice & Asplund – Where the mother unilaterally moved to New South Wales – Where the father seeks that the mother do return the children to their principle place of residence in Adelaide – Whether it is in the best interests of the children to re-litigate parenting issues – Where there is a sufficient change in circumstances to satisfy the rule in Rice & Asplund – Parenting proceedings to be revisited on an adjourned date for future progress of the matter.

Family Law Rules 2004 (Cth) r 5.09

Marsden & Winch [2009] FamCAFC 152
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Swenson & Brantley (No.2) [2020] FamCAFC 205

APPLICANT:

Ms Springer

RESPONDENT:

Mr Nielsen

FILE NUMBER:

ADC

1483

2017

DATE DELIVERED:

17 December 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Mead J

HEARING DATE:

10 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bowler of Counsel

SOLICITOR FOR THE APPLICANT:

Georgina Parker Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Anderson of Counsel

SOLICITOR FOR THE RESPONDENT:

CG Family Law

Orders

That paragraph 1 of the interim orders sought by the father in his amended response filed 25 August 2020 be dismissed.
That the matter be listed on 2 February 2021 at 9.30 am for directions as to the future progress of the matter.

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 Nielsen & Springer 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 ADELAIDE

FILE NUMBER: ADC 1483 of 2017

Ms Springer

Applicant

And

Mr Nielsen

Respondent

REASONS FOR JUDGMENT

Introduction

Over five days in May and July 2019, Berman J heard evidence from Mr Nielsen (hereinafter referred to as “the father”) and Ms Springer (hereinafter referred to as “the mother”) with respect to their competing parenting and property settlement applications.
His Honour delivered judgment on 17 September 2019.
The orders sought by the parties with respect to parenting issues were set out in paragraphs 16 and 17 of His Honour’s judgment.
The father sought the following parenting orders:
·equal shared parental responsibility for the children; and
·that the children live with each of the parties on a week about basis with provisions for special occasions.
The mother sought the following parenting orders:
·sole parental responsibility for the children;
·the children live with her and spend time with the father each alternate weekend and during holidays and special occasions until December 2019;
·permission to relocate with the children to Town L in northern NSW at the commencement of the 2019 Christmas school holidays;
·the children to spend time with the father once a month in NSW and in Adelaide once per school term and for half of holidays, noting that the mother proposes that the children’s airfares should be shared equally by the parties when the children travel between Adelaide and NSW; and
·liberty to travel to Country Z with the children for a maximum of 30 days per year.
Parenting orders were made in terms of paragraphs 1 to 16 inclusive of the order of 17 September 2019.
The mother was unsuccessful in her application to relocate to Town L with B who is now aged 12, C who is now aged 10 and D who is now aged 8 years.
The father was unsuccessful in his application to share parental responsibility for the children with the mother and, for the children to live with each of the parties on a week-about basis.
His Honour determined that the mother should have sole parental responsibility, that the children should live with the mother and spend time with the father for four nights per fortnight during school term time (or five nights in the event of a long weekend) and, for half of each school holiday period. Specific orders were made with respect to the children spending time with each of their parents on Mother’s Day and Father’s Day in each year, on the children’s birthdays and for Christmas each year.
Specific issues orders were made with respect to the parents’ attendance at the children’s schools for activities to which parents are usually invited, to enable them both to obtain educational information usually provided to parents and for the mother to provide the father with reports from the children’s various medical practitioners and allied therapists.
An order was made providing for each of the parties to be able to take the children on an overseas holiday annually provided certain information was provided and, for the mother to retain the children’s Country Z passports in her possession and the father to retain the children’s Australian passports in his possession.
The father was born in Country F and the mother in Country Z.
They relocated with the children from Country F to Adelaide in January 2012 and were living in Adelaide when they separated under the same roof on 28 August 2016.
Each of B, C and D have been diagnosed with Autism Spectrum Disorder. They are all in receipt of National Disability Insurance Scheme funding to enable them to obtain relevant therapy.
In late 2016 the mother re-partnered with a Mr K who at the time of trial lived in Town L, New South Wales. Mr K came to Adelaide and lived with the mother and the children in Adelaide between September 2019 and March 2020.
They lived in a property at T Street, Suburb U which was rented in Mr K’s name.
On or about 17 March 2020 Mr K moved to Town W in northern New South Wales. The mother and children moved to stay with friends in Adelaide.
On or about 23 March 2020 the mother left Adelaide with the three children and took up residence with Mr K in Town W. She did not tell the father of her intentions prior to leaving the Adelaide metropolitan area.
On 24 March 2020 the father filed an application in a case seeking orders concerning the children’s Country F passports.
The application and its supporting affidavit clearly indicate that the father had no knowledge that the mother either had or was about to leave Adelaide with the children.
On 7 April 2020 the father filed a contravention application and affidavit in support. In paragraph 2.14 of that affidavit the father deposed to the mother having taken the children to reside in New South Wales and to having no intention of returning to Adelaide. He filed an amended contravention application on 10 June 2020.
On 9 April 2020 the mother filed an application in a case. Therein she sought a suspension of paragraphs 3, 4, 5, 6 and 10(d) of the parenting orders of 17 September 2019, and that she be at liberty to relocate with B, C and D to live in northern New South Wales.
She further sought an order that until further order the children spend time with the father in northern New South Wales and in Adelaide every six weeks and at times otherwise agreed with the father to pay half of the costs of the children’s travel between northern New South Wales and Adelaide for the purpose of the time spending.
She further sought an order that the father be restrained from physically disciplining the children, intimidating, manipulating, demeaning or threatening them, isolating them in their bedrooms or other rooms of the father’s home and removing from them their mobile phones, iPads or other electronic devices to prevent them communicating with the mother.
That application was returnable for 4 June 2020 and was supported by an affidavit filed on 16 April 2020.
On each of 4 and 16 June 2020 the application in a case, response thereto and the amended contravention application were adjourned to 19 June 2020.
On 16 June 2020 the mother had made an oral application for the disqualification of Berman J from further involvement in the matter. That argument was adjourned to 19 June 2020 and the mother’s application was dismissed.
The amended contravention application filed by the father and the mother’s application to suspend existing parenting orders and be at liberty to relocate with the children to northern New South Wales were listed for hearing on 9 July 2020.
The amended contravention application hearing proceeded that day before Berman J.
On 28 July 2020 His Honour delivered judgment wherein he found that counts 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 of the amended contravention application filed 10 June 2020 were proven.
On 30 July 2020 the mother was ordered to enter into a Bond for a period of 18 months without surety but with security of $1,000 with the conditions of the Bond being that she be of good behaviour and comply with all current and future parenting orders made by the Court. His Honour further ordered that the mother pay the father’s costs in the sum of $7,500 within 24 months of the making of the order.
The mother admitted the breaches of the order. It was her case however that she had done so in circumstances where she had reasonable excuse.
She contended that she believed on reasonable grounds that the contravention was necessary in order to protect the health or safety of the children. She further contended that the period of contravention was not longer than was necessary.[1]
[1] Judgment of Berman J of 28 July 2020 – Paragraph 63
His Honour found:
·the mother did not tell the father of her plans to move to northern New South Wales;
·she considered that she should have been permitted to so relocate with the children;
·when not able to do so, she embarked upon a carefully engineered plan to establish a basis for the children’s relocation;
·she did not tell the father of her plans to move in circumstances where she could have done so;
·she maintained a pretence with the father that it was COVID-19 restrictions that caused her to keep the children from school;
·she had no credible explanation for her conduct in not telling the father of her intentions to move until she had successfully done so;
·she was deceptive in her conduct and deliberately so;
·there was no evidence to support her assertion that the move was temporary;
·she did not present any evidence that her five pancreatic cysts were not able to be treated appropriately in South Australia or that she would be able to be treated for them in Town L;
·there was no evidence that the father had attempted to minimise his child support payments or to interfere with the method and manner by which child support is automatically withdrawn from his salary;
·the father is not required to make payments over and above that which he is ordered to make or has been assessed to pay;
·Mr K was not called to give evidence as to the termination of his lease of the Suburb U property or the cessation of his employment with his Adelaide based employer or taking up of employment with his Town V based employer;
·there was no submission by the mother as to any impediment to Mr K being available; and
·the mother did not bring an early application to suspend or vary the final orders which prevented her from relocating with the children to northern New South Wales.[2]
[2] Judgment of Berman J of 28 July 2020 – Paragraphs 39 to 46, 48, 49, 54, 55, 57, 59 and 60
His Honour further found:
·that he did not accept that the mother’s evidence provided a foundation for her submission that the children are at risk in the father’s care;
·that the mother’s assertion that the father has perpetrated family violence on the children is a confected narrative;
·that the mother engineered the circumstances in order to justify her unilateral decision to relocate the children to northern New South Wales;
·that she did so in a manner that was deceptive; and
·she could easily have brought her application to relocate the children prior to any intended departure.[3]
[3] Judgment of Berman J of 28 July 2020 – Paragraph 71 and 75
In paragraphs 76 to 80 inclusive of His Honour’s judgment of 28 July 2020 he said as follows:
76.It must be remembered that the current application is to deal with the mother’s alleged contravention of orders and is not informed by any change in the future parenting arrangements.
77.The Court needs also to deal with the mother’s application to vary the parenting orders such as to enable the children to remain in northern New South Wales.
78.Consideration can also be given to a variation of parenting orders pursuant to s 70NBA of the Act.
79.The considerations outlined by the Full Court in Rice & Asplund (1979) FLC 90-725 will be relevant to that consideration.
80.Minor variations are more easily undertaken and may call for a less meticulous consideration of s 60CC factors, whereas a more substantial variation requires a more detailed and nuanced consideration of what is in the children’s best interests.
The matter came before me on 10 August 2020.
The initiating application filed by the father on 6 October 2019 had only related to passport issues. In circumstances where the father was not seeking other than a continuation of the order of Berman J of 17 September 2019 and enforcement of that order by way of the Bond entered into by the mother on 30 July 2020, the Court ordered that the father’s initiating application be dismissed. The amended response to that application filed by the mother on 22 July 2020 wherein she specified the parenting orders she sought was deemed to be the initiating application. In those circumstances the father filed an amended response on 25 August 2020.
Both parties sought interim and final orders in their respective initiating applications and responses.
The interim orders sought by the mother in her application filed 22 July 2020 were as follows:
1.That until further Order paragraphs 3, 4, 5, 6 and 10d of Final Orders made on the 17th of September 2019 be suspended.
2.That the mother be at liberty to relocate with the children B born … 2008, C born … 2010, and D born … 2012 to live in [northern] New South Wales.
~~3.Until further Order the children spend time in northern New South Wales and in Adelaide every six weeks and as times agreed between parties or failing agreement as ordered by this Honourable Court.~~
3.Until further order that the children spend supervised time with the father in Town V New South Wales at the X Contact Centre on Saturday and/or Sunday for a total of 4 hours once per month for a minimum 10 visits at the father's cost ($150 per hour) and that the mother pay the cost of the Report ($50 per session) to be provided to the Court.
4.Until further Order that the father pay one half of the costs of the children’s travel between northern New South Wales and Adelaide for the purpose of the children spending time with the father as provided for in paragraph 4.
4.Until further Order the father pay for his own travel costs to and from northern New South Wales for the purpose of the children spending time with the father as provided for in paragraph 3.
5.That the father be restrained and an injunction granted restraining the father as follows:
a)from physically disciplining the children
b)from intimidating, manipulating, demeaning or threatening the children
c)from restraining the children including isolating them in their bedrooms or other rooms in the father's home
d)from removing the children’s mobile phones, Ipads, or other electronic devices as a means of preventing the children from communicating with the mother;
6.Such further or other Orders as this Honourable Court deems fit.
The final orders she seeks are in the following terms:
1.That the Initiating Application filed on behalf of Mr. Nielsen on the 6th of October 2019 be dismissed.
2.That paragraphs 3, 4, 5, and 6 pertaining to the father's time with the children and paragraph 10 pertaining to the father travelling overseas with the children of Orders made by the Honourable Justice Berman on the 17th of September 2019 be discharged.
3.That the Mother be at liberty to relocate with the children B born … 2008, C born … 2010, and D born … 2012 to live in [northern] New South Wales.
4.That the children spend time with the father in northern New South Wales and in Adelaide from Friday to Sunday or the equivalent of three days during their five short end of term school holidays and as agreed between parties or failing agreement as ordered by this Honourable Court.
5.That the children spend time with the father in northern New South Wales and in Adelaide for five days in the first half of the Christmas school holidays and for five days in the second half of the Christmas school holidays and as agreed between parties or failing agreement as ordered by this Honourable Court.
6.That the father pay one half of the costs of the children's travel between northern New South Wales and Adelaide for the purpose of the children spending time with the father as provided for in paragraphs 4 and 5.
7.That the father pay his own travel costs to and from northern New South Wales and the mother pay her own travel costs to and from Adelaide for the purpose of the children spending time with the father as provided for in paragraphs 4 and 5.
8.That the father be restrained and an injunction granted restraining the father as follows:
a)from physically disciplining the children;
b)from intimidating, manipulating, demeaning or threatening the children;
c)from restraining the children including isolating them in their bedrooms or other rooms of the father's home;
d)from removing the children’s mobile phones, Ipads, or other electronic devices as a means of preventing the children from communicating with the mother
9.That upon the children receiving their Australian passports that the Mother retains the children's Australian passports in her possession.
10.That all costs associated with this application are paid by the Applicant.
11.Such further or other Orders as this Honourable Court deems fit.
The interim orders sought by the father in his amended response filed 25 August 2020 are as follows:
1.That the Initiating Application (Amended Response) filed on 22 July 2020 be summarily dismissed.
2.That within twenty-one (21) days the mother do return the children B born … 2008, C born … 2010 and D born … 2012 ("the said children") to their principle place of residence in Adelaide, South Australia.
3.That upon the mother's return in accordance with paragraph 2 herein the father be provided make-up time with the said children.
4.That in the event that the mother does not comply with these Orders then a warrant do issue for the mother's arrest and pursuant to section 67U of the Family Law Act 1975 (as amended) a recovery order do issue authorising and directing the Marshall, all officers of the Australian Federal Police and all Officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required and if necessary by force:
4.1. To find and recover the said children;
4.2.To deliver and return the children to Adelaide forthwith at such place as this Honourable Court deems to be appropriate;
4.3.To stop and search any vessel, vehicle or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe the said children may be found;
4.4.To prohibit the mother from again removing the said children and authorising the arrest without warrant, of the mother if she again removes the children from the Adelaide South Australia or permits any third party to do so.
5.That until further order the children attend at R School in South Australia.
6.That the applicant mother shall sign all documents and do all things necessary for the children to maintain or renew their Country F passports within seven (7) days of being provided with same.
7.That until further order the applicant mother be restrained and an injunction be granted restraining the applicant mother from:
7.1.Talking or discussing family law issues with the children;
7.2.Denigrating, insulting or demeaning the respondent father in the presence of the children or from allowing any other person to do so;
7.3.Attempting to remove the children from the respondent father's care during any period in which the children are to live with the respondent father;
7.4.Changing the children's permanent place of abode outside the Adelaide metropolitan area.
8.For costs.
9.Such further and other orders as this Honourable Court deems just and expedient.

The final orders sought by him in that response are as follows:
1.That the Initiating Application (Amended Response) filed on 22 July 2020 do be and the same is and hereby dismissed.
2.That the children attend at R School in South Australia.
3.That the applicant mother shall sign all documents and do all things necessary for the children to maintain or renew their Country F passports within seven (7) days of being provided with same.
4.That the applicant mother be restrained and an injunction be granted restraining the applicant mother from:
4.1. Talking or discussing family law issues with the children;
4.2.Denigrating, insulting or demeaning the respondent father in the presence of the children or from allowing any other person to do so;
4.3.Attempting to remove the children from the respondent father's care during any period in which the children are to live with the respondent father;
4.4.Changing the children's permanent place of abode outside the Adelaide metropolitan area.
5. For costs.
6.Such further and other orders as this Honourable Court deems just and expedient.

Affidavits to be taken into account

On 10 August 2020, at which time the matter was listed for argument on the papers on 1 September 2020 with respect to the “Rice & Asplund” principles (such argument subsequently administratively adjourned to 10 September 2020), orders were made:
·deeming the mother to be the applicant in the proceedings;
·deeming the mother’s amended response filed 22 July 2020 to be the initiating application;
·dismissing the father’s initiating application filed 6 October 2019 in circumstances as described in paragraph 38 hereof;
·ordering that the father file and serve a response on or before 24 August 2020; and
·that the father be at liberty to file and serve an affidavit in support of that response.
Neither party were given leave to file any further affidavit material.
By the date of that order, the mother had filed an affidavit on 16 April 2020 in support of her application to be at liberty to relocate to northern New South Wales with the children and setting out the changes of circumstance upon which she relied.
On 26 May 2020 the father had filed an affidavit in response to the mother’s affidavit together with a response to what, at that time, was the pending application in a case filed by the mother. That response specifically related to the mother’s application to relocate to New South Wales.
On 29 May 2020 the father filed a further affidavit but that affidavit was only in support of the pending contravention application.
On 2 June 2020 the mother filed a further affidavit only relating to the issue of the father’s initiating application filed on 6 October 2019 regarding passports, an application I dismissed on 10 August 2020.
On 9 August 2020 the mother filed a further affidavit in support of her application without the leave of the Court.
On 25 August 2020 the father filed his response to the mother’s initiating application together with an affidavit. That affidavit was in response to the affidavit of the mother filed without leave of the Court on 9 August 2020.
On 27 August 2020 the mother filed a further affidavit without leave of the Court wherein she referred to both her affidavit filed 9 August 2020 and also deposed to issues in response to the father’s affidavit filed 25 August 2020.
Rule 5.09 contained in Part 5.2 of the Family Law Rules 2004 is in the following terms:
5.09 Affidavits
The following affidavits may be relied on as evidence in chief at the hearing of an interim or procedural application:
(a)subject to rule 9.07, one affidavit by each party;
(b)one affidavit by each witness, provided the evidence is relevant and cannot be given by a party.
Neither party relied on any other witness.
The mother proposed to rely on her initiating application filed 22 July 2020, the affidavit filed 16 April 2020 and the further two affidavits filed on each of 9 and 27 August 2020 to which I have referred.
The father relied on his amended response filed 25 August 2020, his affidavit filed 26 May 2020 and that filed 25 August 2020.
I am mindful that although both parties were represented by Counsel at the hearing, the affidavits filed by the mother on 16 April 2020 and by the father on 26 May 2020 were prepared by the parties themselves as were the mother’s affidavits filed on each of 9 and 27 August 2020, although that of the father filed 25 August 2020 was prepared by solicitor, Christopher Nicholas Ganzis.
I do not intend to take into account the material relied on by the mother contained in her affidavits filed on 9 August 2020 and 27 August 2020 or that contained in the affidavit filed by the father on 25 August 2020.
The affidavit filed by the mother on 16 April 2020 was in support of what was deemed to be her initiating application. The affidavit filed by the father on 26 May 2020 was a detailed response to that affidavit.
Notwithstanding the order of the Court of 10 August 2020 permitting the father to be at liberty to file and serve an affidavit in support of his response, the document filed by him on 25 August 2020 was not in support of his response but rather specifically in answer to the affidavit of the mother filed 9 August 2020.

Issues for determination

The issue to be determined by the Court at this time is whether it is in the best interests of B, C and D that their mother be permitted to re-litigate parenting issues, a course of action strongly opposed by their father.
It is necessary for the Court determining that issue to consider the principles set out in Rice & Asplund (1979) FLC 90-725 and discussed and adopted in numerous cases since that time.
In the recent case of Swenson and Brantley (No.2) [2020] FamCAFC 205 the Full Court described the pathway the Court must take in determining whether earlier parenting orders should be reconsidered, by reference to a series of cases. In paragraphs 20 to 23 inclusive the Court said:
20.The starting point is Rice and Asplund itself, where Evatt CJ said at 78,905-78,906:
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.
21.In the oft quoted case of SPS and PLS (2008) FLC 93-363, Warnick J said:
81.Thus, in my view 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.
...
83.Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
84.Although I do not suggest that, when judgments of the court in which the rule is discussed are read in full, the rule is in any case inaccurately or even insufficiently expressed, sometimes “shorthand” descriptions of the rule are used and are then taken up by others in later cases. Some phrases used seem to better direct attention to the essential question than others. For example, the phrase used by Nygh J in McEnearney (supra), that a court should discourage a parent from coming back to court where there “is really no startling new circumstance” focuses attention on the character of the circumstance itself. Similarly, terms such as “a substantial change in circumstance since the making of an existing order”, as used by the Full Court in D and Y (supra), may tend to focus attention on the character of a particular event or events. 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.
(Emphasis added)
22.These authorities make clear that a change in circumstances is not itself the answer to the question as to whether the earlier parenting orders should be reconsidered, but that those new matters, in all of the circumstances, must be sufficient to justify or to provide for such a hearing.
23.In Marsden v Winch(2009) 42 Fam LR 1, consistently with the above authorities, the Full Court said:
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.
In this case the litigation which determined the parenting orders is only recently concluded.
The parties commenced litigation with respect to parenting issues on 12 April 2017.
A family report was prepared by Ms P dated 20 May 2019.
The trial took place over a period of four days between 27 and 30 May 2019 and also on 18 July 2019 with judgment being delivered on 17 September 2019.
In paragraphs 4 to 11 of these reasons I have set out the orders sought by each of the parties with respect to parenting orders at trial and summarised the final parenting orders made by Justice Berman on 17 September 2019.
The mother’s initial application to suspend those final orders was filed some seven months after the making of final orders. By that time she and the children had been living in New South Wales for approximately one month.
On 28 July 2020 Berman J determined that the mother did not have reasonable excuse for failing to comply with the terms of that order with respect to the time the children spent with their father as had been ordered by His Honour.
At the hearing on 10 September 2020 Counsel for the mother made an oral application to adjourn the hearing of the “Rice & Asplund” argument.
He submitted that:
·prior to hearing such argument the parties and the children should attend upon a family consultant for a child inclusive conference in circumstances where the children are now aged 12, 10 and 8 years and of an age where more weight should be placed on their wishes which could be ascertained through a child inclusive conference;
·the mother had issued a subpoena to the Department for Child Protection which was not returnable until 25 September 2020 with respect to complaints made to Suburb AA Police by the mother on 19 December 2019 relating to alleged incidents of physical abuse reported by the children whilst in their father’s care pursuant to existing orders;
·since moving to New South Wales the mother has potential part-time employment as well as employment utilising her health and fitness knowledge;
·she is now living with Mr K and not paying rent; and
·her financial circumstances are much improved from the time of the trial.
The adjournment was opposed by Mr Anderson of Counsel on behalf of the father. He submitted that:
·Berman J had found, as set out in [71] of his judgment relating to the contravention issues that the mother had confected allegations of family violence against the father;
·the complaints the mother relied on with respect to the children’s reluctance to spend time with the father and fear of the father were similar to those raised by the children with Ms P and referred to in her family report of May 2019;
·a child inclusive conference was likely to be of little assistance in the circumstances;
·the Court could gain little assistance from subpoenaed material in circumstances where the father had not been interviewed by either the Department for Child Protection or South Australia Police;
·notwithstanding the mother’s allegations in her affidavit filed on 16 April 2020 she did not say the children were the subject of reports to police regarding the father’s behaviour towards them;
·she was promoting unsupervised time between the children and their father; and
·the evidence adduced in paragraph 53 of the mother’s affidavit filed 9 August 2020 gave no details regarding her employment or potential employment or any income she may earn therefrom.
I was not satisfied that the Court would be assisted by adjourning the matter for further evidence to be adduced prior to a consideration of whether it was in the best interests of the children for the mother to be at liberty to proceed with her application.
Final orders were less than 12 months old, the family report was prepared in the first half of 2019 and the mother had had ample opportunity to both issue the subpoena on which she wished to rely at an earlier time in the proceedings and to include more detailed financial information in her affidavit evidence.

Change of circumstances

The reasons for judgment delivered by Berman J on 17 September 2019 were extensive. In paragraphs 18 to 79 His Honour set out the evidence relied on by the father and in paragraphs 80 to 114, the evidence relied on by the mother. The mother also relied on evidence from her partner Mr K as set out in paragraphs 115 to 121 of His Honour’s reasons. The evidence of the family consultant was discussed in detail by His Honour in paragraphs 122 to 160 of his reasons.
It was common ground that all three children had been diagnosed on the Autism Spectrum. In [20] of His Honour’s reasons he said as follows:
…Whilst there is no assessment as to the severity of the disorder and noting that it varies as between the children, the family consultant considered that the children may be described as moderate or high functioning.
His Honour referred to the children engaging in “ABA therapy”[4] and that such therapy “requires therapeutic application both at home and at school.”[5] In paragraphs 47 and 48 His Honour said:
It is an important adjunct to the success of the program that the parents become skilled in the application of ABA therapy and that there is a cooperative approach undertaken by those who have extensive involvement in the children’s lives.
I am left in no doubt that whatever was the extent of the husband’s involvement in the ABA program and its application to the children, the driving force for its implementation and therefore the positive presentation of the children was the wife.
[4] Judgment of Berman J delivered 17 September 2019, paragraph 45
[5] Judgment of Berman J delivered 17 September 2019, paragraph 46
In [50] and [51] of his reasons His Honour referred to the practical difficulty arising from the NDIS funding for the children’s therapists being paid to the mother and to the relationship between the parties resulting in transfer of funds by the mother to the father for therapeutic fees rarely occurring. In [52] His Honour noted the father’s concession that he had not attended any ABA sessions since April 2018.
After referring to the fact that each of the children had run away from the parties from time to time,[6] His Honour said at [64] of his reasons:
I do not draw any adverse conclusion against either the husband or the wife. The husband’s evidence highlights the difficulty in properly managing the children, but in particular the boys and their special needs.
[6] Judgment of Berman J delivered 17 September 2019, paragraph 63
In [65] and [66] of His Honour’s reasons he referred to the parties communication being “functional but perfunctory” and to the drawing of what he referred to as the “parental lines” being such that “…the wife is invested with ongoing obligation of managing the therapeutic needs of the children with little assistance from the husband.”
In a consideration of the evidence relied on by the mother, His Honour referred to her commencing a long distance relationship with Mr K in 2017, to Mr K having lived in the Town L area since 2012 and to Mr K having undertaken instruction in the application of ABA therapy.[7]
[7] Judgment of Berman J delivered 17 September 2019, paragraphs 81, 82 and 87
Although His Honour accepted the mother’s qualifications as a health and fitness instructor and as a consultant,[8] he determined that “it is speculation on her part”[9] that living in the Town L area may give her an ability to increase her income. His Honour noted that the mother had not taught health and fitness to any significant level since 2017.[10]
[8] Judgment of Berman J delivered 17 September 2019, paragraph 83
[9] Judgment of Berman J delivered 17 September 2019, paragraph 90
[10] Judgment of Berman J delivered 17 September 2019, paragraph 83
In [91] His Honour said:
Mr K does not present a financial position that he is able to assist the wife financially and whilst there remains some uncertainty as to the extent of the hours that he will be required to work, the likely outcome is that she will have less respite from the parenting and management needs of the children than currently is the position taking into account the time the children spend in the care of the husband.
His Honour described the communication between the parties in [106] of his reasons as “toxic” and to there being “…little evidence of either improvement or the potential for improvement.”
He expressed concern about a change in the children’s school being “…likely to be a significant stressor.”[11] In [107] His Honour referred to the mother’s evidence about the children being reluctant to spend time with the father and to her not being “convincing” about a move of the children to Town L being likely to improve the relationship with their father.
[11] Judgment of Berman J delivered 17 September 2019, paragraph 109

In [111] and [112] His Honour referred to the mother’s evidence as to a shortfall between her income and outgoings of $532 per week and to her evidence that she borrows money on her credit card and from members of her family to manage financially.
In [113] His Honour said “I found the wife to be a truthful witness and clearly invested with the children’s care”.
In a detailed consideration of the evidence of the family consultant Ms P, including that contained in her report dated 20 May 2019, he referred to her reporting:
·the father’s concern that the mother wanted to separate him from the children;[12]
·her concern that the father did not fully appreciate the particular needs of the children;[13]
·the father’s concession to her that the mother managed the children’s therapy;[14]
·information provided to her by both parties as to family violence perpetrated by the other of them in the home;[15]
·the father’s expressed concerns about the mother involving the children in the litigation and discussing relocation with the children;[16]
·the mother appearing to be child-focused in her approach and clearly invested in the children’s care and management;[17]
·the mother’s concern as to the “inflexibility” of the father in dealing with her, and to her corroboration of the father’s evidence that the parties were “able to communicate only at a perfunctory level”;[18] and
·that the observations of the children with the mother raised “minimal parenting concerns” whereas the father had difficulty in engaging with the children and distracting them when their behaviour was defiant;[19]
[12] Judgment of Berman J delivered 17 September 2019, paragraph 131
[13] Judgment of Berman J delivered 17 September 2019, paragraph 132
[14] Judgment of Berman J delivered 17 September 2019, paragraph 133
[15] Judgment of Berman J delivered 17 September 2019, paragraph 135
[16] Judgment of Berman J delivered 17 September 2019, paragraph 138 and 139
[17] Judgment of Berman J delivered 17 September 2019, paragraph 140
[18] Judgment of Berman J delivered 17 September 2019, paragraph 141
[19] Judgment of Berman J delivered 17 September 2019, paragraph 152
His Honour said in [156] to [160] of his reasons:
The family consultant was concerned that the challenging needs of the children were not appreciated by the husband, nor was he able to adequately manage their behaviour in circumstances where he had not undertaken the instruction necessary to better understand their disabilities.
The family consultant had little hesitation in recommending that the children should remain in the primary care of the wife.
The family consultant was less certain as to the benefits to the children of the wife’s proposed relocation to Town L.
Whilst she accepted that the children’s relationship with the husband could be supported by “twice a term contact visits and increased time during the school holidays”, relocation should only occur if appropriate “local therapeutic interventions and educational services for the children” were able to be put into place.
The obvious issue for the family consultant was that presently the children’s therapeutic needs were well catered for and they were settled in their present schools.
In [161] to [165] Berman J considered the principles applicable to relocation cases.
Under the heading of “Parenting Considerations” in [166] to [233] His Honour made the following findings:
·he did not consider that issues raised by each of the parties in respect of matters of family violence, abuse and child safety would speak against the orders that each of the parties sought;[20]
[20] Judgment of Berman J delivered 17 September 2019, paragraph 193
·the children’s views should be considered as a factor in determining the parenting arrangements for the children but not determinative of the issues in dispute;[21]
[21] Judgment of Berman J delivered 17 September 2019, paragraph 197
·“The evidence of the wife’s involvement with the children is persuasive of a finding that she has the children’s primary emotional attachment”;[22]
[22] Judgment of Berman J delivered 17 September 2019, paragraph 198
·such a finding “is not to suggest that there is not a strength in the relationship between the husband and the children…;[23]
[23] Judgment of Berman J delivered 17 September 2019, paragraph 198
·“…the wife’s attendance to the children’s needs is comprehensive and their first recourse for comfort and assistance is to her and not to the husband.”;[24]
[24] Judgment of Berman J delivered 17 September 2019, paragraph 198
·he accepts on scant evidence that the relationship between the children and Mr K is positive;[25]
[25] Judgment of Berman J delivered 17 September 2019, paragraph 200
·in reference to the children’s relationship with their father “any difficulties that the children have with him is largely to be considered as sequelae of the highly conflicted relationship between the parties.”;[26]
[26] Judgment of Berman J delivered 17 September 2019, paragraph 203
·“It is not seriously suggested that the children do not have a relationship with the husband nor that a meaningful relationship will not benefit them.”;[27]
[27] Judgment of Berman J delivered 17 September 2019, paragraph 204
·“The husband has taken the opportunity to spend time with the children and to communicate with them. The parties’ ability to participate in decision making concerning major issues in relation to the children is poor. They have no ability to interact at a personal level, although the evidence suggests that face to face contact is more problematic for the husband than the wife.”;[28]
[28] Judgment of Berman J delivered 17 September 2019, paragraph 206
·“…that the wife is more involved in the children’s extra-curricular activities and their ongoing therapeutic and health management.”;[29]
[29] Judgment of Berman J delivered 17 September 2019, paragraph 207
·“…the evidence is strongly in favour of the children’s continued involvement” in the ABA therapy program;[30]
[30] Judgment of Berman J delivered 17 September 2019, paragraph 207
·“There has been significant improvement in the children’s presentation”;[31]
[31] Judgment of Berman J delivered 17 September 2019, paragraph 207
·“…the husband has failed to engage in the program to the extent that he has not taken up the opportunity to involve himself with the therapist because he will be financially responsible for any one‑on‑one time spent with the therapist.”;[32]
[32] Judgment of Berman J delivered 17 September 2019, paragraph 207
·that the financial circumstances of the parties is poor;[33]
[33] Judgment of Berman J delivered 17 September 2019, paragraph 208
·the mother is advantaged by NDIS funding;[34]
[34] Judgment of Berman J delivered 17 September 2019, paragraph 208
·“Nonetheless, whilst opportunity exists, the husband has not availed himself of the open invitation to engage with the children’s therapy.”;[35]
[35] Judgment of Berman J delivered 17 September 2019, paragraph 208
·“…each of the parties have demonstrated a preparedness to maintain the children to the best of their ability and have evinced an intention to do so into the future.”;[36]
[36] Judgment of Berman J delivered 17 September 2019, paragraph 211
·“The most significant change for the children arises from the wife’s proposal that she relocate with the children to Town L”;[37]
·“A meaningful relationship requires more than an order that would keep the children aware of their father and minimally connected with him.”;[38]
·“The behavioural factors affecting the children are such that continuity of engagement should not be easily set aside without evidence which would demonstrate the children’s relationship with the husband would not be materially affected.”;[39]
·“…the wife has undertaken the role of primary caregiver…She has invested considerable time and energy in ensuring that the children will develop to the best of their abilities.”;[40]
·“The husband is also able to provide for the children’s needs.”;[41]
·“I…do not consider that the evidence supports a finding that the wife’s proposal will enable a meaningful relationship to be maintained… The real concern is that the children’s relationship with the husband would become perfunctory… I do not have confidence that the wife is committed to maintaining the children’s relationship with their father, nor do I consider that she necessarily values the children’s relationship with him.”;[42]
·equal time and shared care would not be in the children’s best interests;[43]
·“The husband did not impress as to his preparedness to engage with the children’s ABA therapy…”;[44]
·“The wife’s management of the children’s needs was impressive and unlikely to be replicated by the husband…taking into account the children’s special needs, more is required of the husband. The interests of the children would not be served by their time being shared between the parties in circumstances where the husband is incapable of setting aside his differences and his apparent mistrust and dislike for the wife.”;[45] and
·His Honour determined that the parenting arrangements in place at the time of trial should be maintained.[46]
[37] Judgment of Berman J delivered 17 September 2019, paragraph 212
[38] Judgment of Berman J delivered 17 September 2019, paragraph 222
[39] Judgment of Berman J delivered 17 September 2019, paragraph 223
[40] Judgment of Berman J delivered 17 September 2019, paragraph 224
[41] Judgment of Berman J delivered 17 September 2019, paragraph 225
[42] Judgment of Berman J delivered 17 September 2019, paragraph 229
[43] Judgment of Berman J delivered 17 September 2019, paragraph 230
[44] Judgment of Berman J delivered 17 September 2019, paragraph 230
[45] Judgment of Berman J delivered 17 September 2019, paragraph 231
[46] Judgment of Berman J delivered 17 September 2019, paragraph 233
At the time of trial, the parenting orders in place were those of 25 September 2017 providing for B, C and D to live with the mother and spend time with their father on alternate weekends from after school Friday to the commencement of school Monday and, from after school Thursday to the commencement of school Friday with extensions in the event that any of the relevant Thursdays, Fridays or Mondays were not a school day. On 8 February 2018 the children’s time with their father was extended during the 2018/19 short term school holidays to 4.00 pm on the Tuesday from the previous Friday evening.
In the parenting orders of 17 September 2019 His Honour extended the alternate weekend time such that it commenced from the conclusion of school Thursday rather than the conclusion of school Friday, removed the provision for intervening week time overnight on a Thursday and increased school holiday time such that during those periods the children spent equal time with each parent.
His Honour made more extensive orders relating to time spending on Mother’s Day, Father’s Day and the children’s birthdays each year as well as Christmas Eve, Christmas Day and Boxing Day.
The order also provided for the parties each to be able to take the children on an overseas holiday annually on certain terms and conditions, for the mother to retain the children’s Country Z passports and the father to retain the children’s Australian passports. Finally, His Honour made what might be described as “standard” orders with respect to the parties’ involvement in the children’s education and medical and health care.

Evidence relied on by the parties

In the mother’s affidavit filed on 16 April 2020 she deposed in paragraph 4 to significant changes of circumstances since the 2019 parenting orders trial namely:
·concerns for the children’s safety and wellbeing;
·the children’s health;
·hers and the children’s housing situation;
·her financial situation; and
·her health.
In paragraphs 56 and 57 she deposed to having had no other choice but to move to northern New South Wales and to having emailed the father on 4 April 2020 advising him of that fact.
She deposed in paragraph 5 to an increase in the amount of physical, psychological and emotional abuse the children were being exposed to when with their father and set out in paragraphs 6 and 7 various incidents involving such alleged abuse including:
·C being hit five times in the middle of the back in the father’s car;
·the father refusing to allow D to call her mother, D becoming distressed and wanting to go home to the mother;
·C not feeling safe and crying hysterically to the mother on the phone;
·D ringing the mother and saying “daddy is angry”, crying and sounding scared with the father yelling in the background;
·the father removing C’s mobile telephone from him and C contacting her on the father’s house landline yelling and asking the mother to help him, get him and that he didn’t want to be with his father anymore;
·the father smacking C in the face really hard;
·C telling the mother he was not “ok” at the father’s home;
·D calling the mother from the father’s house crying, saying she missed her mother, that she wanted to come home and that her father was yelling;
·C ringing the mother and leaving a voicemail message saying he had been grabbed by the throat by his father the day before, smacked in the face and lifted up like he was choking – saying he was being hurt by B and not being protected by the father;
·D telephoning and saying she had breathing problems and wanted to come home;
·B telling her that he mostly stays in his room at the father’s house and that he sees and hears what the father does to C; and
·B telling her that his father “would not touch me or I would kill him” and that he doesn’t want to go to the father house.
She also deposed at length in paragraphs 12 to 18 inclusive to the father insisting on taking the children on a camping trip over the Christmas holidays, and to them being caught up in the bushfire emergency notwithstanding serious medical concerns about D’s allergies and asthma.
She further deposed in paragraphs 19 to 22 to the children’s level of anxiety rising over the six months prior to the filing of the affidavit and all three children expressing a reluctance to spend time with the father.
She deposed in paragraph 23 to the impact on the children’s behaviour of their increasing distress including challenging behaviour after being at the father’s home, missing school due to fatigue and sickness and becoming increasingly resistant to going to school as well as experiencing bullying.
In paragraphs 25 to 54 of her affidavit the mother deposed to a deterioration in her financial circumstances since the June 2019 trial. She deposed to:
·the father advising on 10 June 2019 he would no longer be paying spousal maintenance in the sum of $240 per week;
·having to vacate the home in which she and the children lived in Suburb S in September 2019;
·attending numerous house inspections;
·applying for private rentals, housing SA assistance and community housing in August 2019;
·being unable to secure housing close to the children’s school by 12 September 2019 when her Suburb S lease expired;
·her partner Mr K turning down a work contract in New South Wales due to commence in September 2019;
·him finding a short-term lease for six months near the children’s school and finding casual work in Adelaide;
·all of her property settlement and lump sum spousal maintenance funds being utilised on Counsel fees arising from the trial;
·continuing to be in debt to her solicitor;
·to having to take over the children’s private health insurance at $610 per month;
·the overall financial effect of her assumption of the private health insurance obligation and the effective loss of weekly spousal maintenance arising from the lump sum being paid to Counsel being a reduction in her annual budget of approximately $20,000;
·her remaining on a carer’s payment of $472 per week;
·receiving child support payments at the rate of $575 per week;
·concerns about arrears with respect to child maintenance;
·being unable to secure a rental home and pay bills on time when she cannot show consistency of income and payments;
·having made multiple job applications unsuccessfully;
·advising the father on 17 February 2020 that Mr K’s lease in Adelaide and his local work contract would be ending in March and that he would be returning to New South Wales, telling the father that she was doing everything she could to find suitable accommodation and a job to remain in Adelaide and asking if the father was able to help financially to which she did not receive a response;
·a reduction in the father’s contribution to children’s school fees, excursion fees and sports fees;
·requesting on 12 February 2020 if the father could contribute to C’s sports fees and receiving no response;
·asking the father on 18 February 2020 if he was able to pay the children’s school excursion fees and receiving no response;
·emailing the father on 4 March 2020 noting his lack of response and requesting that the child support payments resume in a timely fashion;
·requesting the father contribute to a cost of $1,000 with respect to a foot condition diagnosed for C in December 2019 and receiving no response;
·requesting the father to contribute to teeth braces for B and C in March 2020 but not receiving a response;
·inspecting two house properties on 20 February 2020, applying for one property in Suburb U and being advised on 27 February 2020 that the landlord would no longer be proceeding with her application;
·attending additional inspections in other suburbs on 14 March 2020, applying for rentals, none of her referees being contacted and not hearing back from the owners;
·not receiving a response from a case worker in relation to an application for community housing previously submitted in August 2019;
·Mr K being unable to arrange a further extension on the Suburb U lease post 17 March 2020 and moving back to New South Wales;
·staying with friends in Adelaide with the children;
·not being in a position to stay in motels or shelters with the children because of their Autism;
·advising the father when COVID-19 started to escalate that it was becoming increasingly difficult for her to find housing in Adelaide;
·advising the father she was electing to keep the children away from school because of concerns in particular for D due to her respiratory sensitivities in the face of the COVID-19 pandemic;
·the father emailing her on 25 March 2020 and advising that as a result of losing annual leave due to the trial and in circumstances where the schools remained open he could not afford to stay home on Fridays and would be sending the children to school unless she had other options and also advising he only had a few days of leave during the forthcoming school holidays;
·advising the father that she understood his position, that the children could stay with her and that they would discuss the school holidays the following week
·advising the father on multiple occasions about her financial situation and that she may not be able to sustain living in Adelaide without consistent child support and without his financial contributions to the children’s educational and medical costs;
·the father ignoring those emails;
·having exhausted all her options and to it being impossible to sustain a life with the children in Adelaide on her income; and
·speaking with the father by telephone on 1 April 2020, the father not seeming to comprehend her situation, to explaining to the father she could not maintain a home in Adelaide because of the increasing costs and to the father advising her that her financial problems were not his problems and for her to let him know when he could see the children over the holidays.

In the father’s affidavit filed 26 May 2020 he deposed to:
·a denial of the mother’s allegations of abuse towards the children post Berman J’s trial judgment;
·the mother having a history of filing false allegations and fabrications of child abuse and family violence;
·the mother contacting him by email on 22 January 2020 in the following terms:
On the 19th of January, I proposed some options for care of the children. My first priority was that they move with me whilst I seek treatment for at least 12 months and if you didn’t agree we could come to an arrangement whereby you would care for them and their needs in Adelaide whilst I seek treatment.[47]
[47] Affidavit of the father filed 26 May 2020, paragraph 4.8
·the mother sending a further email on 23 January 2020 in the following terms:
I reiterate that I need to know your willingness (or not) to care and pay for the children’s needs so that I can focus on my healing.[48]
[48] Affidavit of the father filed 26 May 2020, paragraph 4.8
·the mother attempting to alienate the children from him;[49]
[49] Affidavit of the father filed 26 May 2020, paragraph 5.1
·the mother interrupting the children’s time with him on a regular basis by way of text messages demanding to speak with the children;[50]
[50] Affidavit of the father filed 26 May 2020, paragraph 5.4
·the mother compromising the children’s connection to their school and their school community by taking them to Town L;[51]
[51] Affidavit of the father filed 26 May 2020, paragraph 5.5
·the mother jeopardising the children’s connection to R School by not having paid their school fees for 2018 or 2019 and having enrolled the children in a private school in New South Wales;[52]
[52] Affidavit of the father filed 26 May 2020, paragraph 5.5
·the mother being reluctant to facilitate telephone communication between the father and the children since living in the Town L area;[53]
[53] Affidavit of the father filed 26 May 2020, paragraph 5.7
·a denial of any acts of physical violence taking place in his home involving he or any of the children;[54]
[54] Affidavit of the father filed 26 May 2020, paragraph 6.6
·the mother pinching B hard causing a bruise in April 2017;[55]
[55] Affidavit of the father filed 26 May 2020, paragraph 6.6
·the mother throwing B to the floor causing a bruised lip in June 2019;[56]
[56] Affidavit of the father filed 26 May 2020, paragraph 6.6
·a denial that the children were in any danger whilst camping over the Christmas school holiday period 2019/20;[57]
[57] Affidavit of the father filed 26 May 2020, paragraph 6.9
·that he did not observe any signs of increased anxiety in the children whilst they were in his care;[58]
[58] Affidavit of the father filed 26 May 2020, paragraph 6.10
·a denial that he does not provide adequate financial support to the mother and children;[59]
[59] Affidavit of the father filed 26 May 2020, paragraph 6.11
·a denial that he missed a single child support payment since the commencement of child support liabilities in 2017;[60]
·the out-of-pocket expense for C’s braces being $200 not $1,600 and to an email from the mother of 5 March 2020 in the following terms:
I am still paying for private health insurance without your help. Cost will be $1600 and at this stage there is a $200 gap.[61]
·his contribution to the children’s mainstream school and excursion fees already being considered in the existing child support calculation by the Child Support Agency;[62]
·the Court having refuted the mother’s claim that it was not possible to sustain a life in Adelaide on the income she receives;[63]
·the mother having moved to Town L before level 2 restrictions were imposed with respect to COVID-19;[64]
·the mother’s decision to remove the children from R School without his knowledge creating instability and disruption to the children’s routine, interrupting their education and preventing them from seeing their friends and interacting with the school community;[65]
·a denial of any acts of aggression from him towards the mother or children in the period 2017 to 2020;[66]
·Adelaide having a wider range of medical facilities than northern New South Wales; and
·advising the mother by email on 23 January 2020 that she should seek treatment in Adelaide and that the parties could then discuss options for the children’s care whilst the mother had her procedure in Adelaide.[67]
[60] Affidavit of the father filed 26 May 2020, paragraph 6.12
[61] Affidavit of the father filed 26 May 2020, paragraph 6.13
[62] Affidavit of the father filed 26 May 2020, paragraph 6.13
[63] Affidavit of the father filed 26 May 2020, paragraph 6.14
[64] Affidavit of the father filed 26 May 2020, paragraph 6.14
[65] Affidavit of the father filed 26 May 2020, paragraph 6.17
[66] Affidavit of the father filed 26 May 2020, paragraph 6.18
[67] Affidavit of the father filed 26 May 2020, paragraph 6.19
At the time of the hearing of the mother’s application the children had been resident in northern New South Wales with the mother since approximately late March 2020, a period of approximately five and a half months.

Conclusion

Having considered the terms of the order made by Berman J on 17 September 2019, the evidence relied on by the parties in those proceedings and the case law authorities as outlined in paragraph 63 hereof, I now turn to the question of the likelihood of orders being varied in a significant way if the matter proceeds to a new hearing.[68]
[68]Marsden & Winch[2009] FamCAFC 152, paragraphs 50(1) and (2)
The children have now been based in northern New South Wales for some eight months and have been attending school. They have not spent face-to-face time with their father but have had some level of electronic and telephone communication with him during that time.
It is the mother’s case that the children’s safety and wellbeing has been further comprised since the September 2019 parenting orders. I have set out in paragraphs 99 to 102 of these reasons the specific matters relied on by the mother in that regard. The nature of those allegations is similar in nature to the complaints made by the mother in her evidence before Berman J leading to the 2019 final orders.
I have referred in paragraph 92 of these reasons to His Honour bringing to account issues raised by the parties in respect of matters of family violence, abuse and child safety and wellbeing but finding they would not speak against orders sought by the parties.[69]
[69] Judgment of Berman J delivered 17 September 2019, paragraph 193
His Honour also referred to the difficulties that the children might have with their father being related to the highly conflicted relationship between the parties[70] and to the father being unlikely to be able to replicate the mother’s management of the children’s needs.[71]
[70] Judgment of Berman J delivered 17 September 2019, paragraph 203
[71] Judgment of Berman J delivered 17 September 2019, paragraph 231
The mother’s evidence is that prior to moving to New South Wales with the children their behaviour had declined and the impact on their mental health of their time spending with their father was causing her increasing concern.
As stated in paragraph 14 of these reasons, all three children are on the Autism Spectrum.
Berman J found that:
·the mother has the children’s primary emotional attachment;[72]
·the mother’s attendance to the children’s needs is comprehensive and their first recourse of comfort and assistance is to her and not to the father;[73]
·the mother is more involved in the children’s extracurricular activities and their ongoing therapeutic and health management;[74]
·the father has failed to engaged in the ABA program to the extent that he has not taken up the opportunity to involve himself with the therapist because he will be financially responsible for any one-on-one time spent with the therapist;[75] and
·the father had not availed himself of the open invitation to engage with the children’s therapy.[76]
[72] Judgment of Berman J delivered 17 September 2019, paragraph 198
[73] Judgment of Berman J delivered 17 September 2019, paragraph 198
[74] Judgment of Berman J delivered 17 September 2019, paragraph 207
[75] Judgment of Berman J delivered 17 September 2019, paragraph 207
[76] Judgment of Berman J delivered 17 September 2019, paragraph 208
His Honour also found that he did not have confidence that the mother is committed to maintaining the children’s relationship with their father nor that she necessarily values the children’s relationship with him.[77]
[77] Judgment of Berman J delivered 17 September 2019, paragraph 229
It is clear that the children face significant psychological and developmental challenges. It is equally clear that whilst resident in South Australia it was the mother who was primarily responsible for the children’s day-to-day care and certainly for the additional care and support required for each of the children arising from their developmental challenges.
In paragraph 90 of these reasons I refer to His Honour’s consideration of the evidence of Ms P the family consultant in the substantial proceedings before him in 2019. He referred to her concern that the challenging needs of the children were not appreciated by the father, nor was he able to adequately manage their behaviour in circumstances where he had not undertaken the instruction necessary to better understand their disabilities.
He referred to her view that the children’s relationship with the father could be supported by “twice a term contact visits and increased time during the school holidays” but to her reservation about relocation being appropriate unless “local therapeutic interventions and educational services for the children” were able to be put in place.
By the time the mother’s application came before the Court, she and the children had already moved to New South Wales. Such a move ensured that she was not in a position to comply with the terms of the order of 17 September 2019 with respect to the children spending time with their father.
This contravention of order was addressed by Berman J at the hearing on 9 July 2020. His Honour found that the order had been contravened and on 30 July 2020 ordered that the mother enter into a Bond for a period of 18 months to comply with current and future orders of the Court. These issues are all dealt with in paragraphs 28 to 35 of these reasons.
As His Honour however remarked in [76] to [80] of his judgment of 28 July 2020, referred to in paragraph 36 of these reasons, the considerations relevant to an application for contravention of an order and an application for a variation of parenting arrangements can be quite different.
The mother’s move with the children to northern New South Wales has meant that the children have changed schools from South Australia to New South Wales and further, the children will now be attending upon different therapists. These are very significant changes for children on the Autism Spectrum.
The mother deposed in her affidavit filed 16 April 2020 to the ongoing support both emotionally and practically provided by her partner of now some three to four years being invaluable. She further deposed to Mr K having undergone a full year of ABA training for children with Autism with the children’s therapist.
Mr K left Adelaide in or about March 2020 and returned to northern New South Wales.
The mother is from Country Z. She deposes to having no support in Australia other than Mr K and to the majority of her family and friends living overseas, mostly in Country Z.
There is no doubt that the mother has always been the primary caregiver for the children and been responsible for the facilitation of their educational and therapeutic needs.
Neither Ms P nor His Honour Justice Berman considered in the 2019 proceedings that the father had a similar capacity to the mother with respect to meeting the children’s day-to-day needs, dealing with their behaviours and facilitating and implementing the intense therapy required for them to function at their highest level.
I find that if the mother was required to return the children to reside in South Australia, whether that requirement had occurred shortly after her move to New South Wales or now some eight months later, the children would be subjected to further significant changes in their day-to-day lives particularly as to their education, therapy and domestic arrangements. That may not be in their best interests. I find a determination as to those issues could only occur in the context of a full hearing.
Likewise I find that the capacity of the mother in those circumstances to continue to provide the high level of day-to-day care of the children in an environment where she is likely to be under significant financial pressure and may not have immediately available to her day-to-day emotional or practical support from Mr K, is an issue that goes to the best interests of the children. These issues again I find would best be determined at a fresh hearing. The mother deposed in her affidavit filed 16 April 2020 to having ongoing significant financial pressures regardless of the father complying with his child support obligations.
In circumstances where the children’s primary long-term emotional attachment is with their mother, I find it is important, particularly in the circumstances of the particular needs of the children in this case, that her parenting capacity be maximised.
If the mother was not permitted to seek changed orders in this matter, taking into account the findings of Berman J with respect to the contravention application and the penalty applied thereto, the consequence for the children would be that the mother would be required to return to South Australia with them. Such a course may of course ultimately be determined by the Court to be in the best interests of the children.
The changes in the lives of the children since orders were made by Berman J in September 2019 are not insignificant. They are not changes that to my mind could be addressed by way of a “small alteration”[78] in the existing orders that “may require only a short and narrow enquiry”.[79]
[78]SPS & PSL (2008) FLC 93-363, paragraph 83
[79]SPS & PSL (2008) FLC 93-363, paragraph 83
Taking all these matters into account, I am satisfied that if this matter proceeds to a rehearing there is a likelihood of orders being varied in a significant way.
In finding that there is a likelihood of the orders being varied in a significant way, I must consider the nature of the changes against the potential detriment to the child or children caused by the litigation itself.[80]
[80]Marsden & Winch[2009] FamCAFC 152, paragraph 50(3)
It is very unfortunate that following the final orders of September 2019, litigation has emerged again so soon. It is never in the best interests of a child to be the subject of ongoing litigation. That is the very essence of the principles discussed in Rice & Asplund[81] and the cases that follow. Nevertheless, those very principles do take into account that from time to time it is necessary and in the best interests of the children to re-litigate a matter.
[81] (1979) FLC 90-725
Berman J found in his judgment of 28 July 2020 that there was insufficient evidence to establish that the mother had a reasonable excuse for contravening his orders of 17 September 2019. He found that she had been deliberately mischievous in moving to New South Wales without advising the father of her intention. There is no doubt His Honour was entitled to make those findings based on the evidence before the Court with respect to the contravention proceedings.
However, I must now consider whether the nature of the changes that may arise from the fresh litigation could potentially benefit the children such that it would compensate for the disruption to their lives occasioned by their parents continuing their dispute, or whether the impact of this likely disruption on the children would be so detrimental as to outweigh any possible benefit.
I find there has been a change of circumstance. I find that change of circumstance to be significant. It has involved the children in an upheaval with respect to their day-to-day living arrangements and routines but not with respect to their day‑to‑day parenting arrangements. I find that the upheaval has disrupted the children with respect to their time with and communication with their father.
I am unable to find on an interim basis that the changes have been in the best interests of the children or whether a return to South Australia would be in their best interests. These are issues that I find can only be determined by hearing the evidence of the parties as to theirs’ and the children’s changed circumstances.
I appreciate that these particular children, more so than most, would benefit from stability in their day-to-day lives. It is possible that such greater stability may be achieved by them remaining in New South Wales with their mother and by the orders with respect to their time and communication with their father being altered to take into account the changes in the lives of the children.
For these reasons I decline to dismiss the mother’s application and make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 17 December 2020.

Associate:

Date: 17 December 2020