Picton & Crowley - [2022] FedCFamC1F 69

Federal Circuit and Family Court of Australia
(DIVISION 1)
Picton & Crowley [2022] FedCFamC1F 69

File number(s): WOC 393 of 2013

Judgment of: MCCLELLAND DCJ

Date of judgment: 17 February 2022

Catchwords:
FAMILY LAW – PARENTING – Review of a senior registrar’s decision – Where the father seeks a review of orders dismissing the father’s applications for interim and final parenting orders – Where final judgment was delivered in 2017 ordering sole parental responsibility to the mother, for the child to live with the mother and for the child to spend no time with the father – Where the father was unsuccessful on appeal to the Full Court – Where the father seeks to revisit litigation pursuant to Rice and Asplund (1979) FLC 90-725 – Where the father seeks that the child live with the father – Allegations of the child being exposed to family violence and not performing well in school in the mother’s care – Where no sufficient change of circumstances demonstrated – Orders made dismissing the application for a review and upholding senior registrar’s orders.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks that the father’s applications for interim and final orders be dismissed – Where the preceding determination does not require the Court to consider summary dismissal.

Legislation:
Family Law Act 1975 (Cth) ss 45A, 65D(2)

Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth)

Family Law Rules 2004 (Cth) rr 10.13, 10.14, 18.05

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46

Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2018

Cases cited:
Crowley & Picton [2018] FamCAFC 10

Elmi & AD (2019) FLC 93-912

Feiteiro & Feiteiro [2019] FamCA 647

Henley & Henley [2019] FamCA 101

Marsden & Winch (2009) 42 Fam LR 1

McEnearney & McEnearney (1980) FLC 90-866

Picton & Crowley [2017] FamCA 811

Poisat & Poisat (2014) FLC 93-597

Rice and Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

Stativa & Stativa [2015] FamCAFC 170

Tindall & Saldo (2016) FLC 93-727

Tomko v Palasty (No 2) (2007) 71 NSWLR 61

Division: Division 1 First Instance

Number of paragraphs: 154

Date of hearing: 23 November 2021

Place: Sydney via webconference

The Applicant: Mr Crowley in person

Solicitor for the Respondent: Venus & Smart

Counsel for the Independent Children's Lawyer: Mr Sperling

Solicitor for the Independent Children's Lawyer: Ark Law Lawyers
ORDERS

WOC 393 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CROWLEY

Applicant

AND:
MS PICTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND dcJ

DATE OF ORDER:

17 February 2022

THE COURT ORDERS THAT:
1.The applicant father’s Initiating Application filed on 6 November 2019 and all subsequent applications made by the father, including his Application in a Case filed on 19 August 2021, are 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 a pseudonym Picton & Crowley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:

This matter concerns an application by Mr Crowley (“the father”) for review of a decision by a senior registrar of the Court made on 24 August 2021. The senior registrar dismissed all extant parenting matters between the applicant father and the respondent, Ms Picton (“the mother”), that were before the Court in respect to the child, X, born in 2009 and currently aged 13 (“the child”).
A review of a senior registrar’s decision is conducted as a rehearing. I have therefore considered afresh both the father’s application for orders as set out in his Amended Application in a Case, filed on 19 August 2021, together with the mother’s Response to the father’s Initiating Application filed on 10 January 2020. The father’s Amended Application in a Case includes an application that the Court should find that there have been significant changed circumstances since final parenting orders were made on 12 October 2017 and that those orders should be revisited. Comparatively, the mother seeks orders for the proceedings to be dismissed.
The relevant final orders were made by Rees J on 12 October 2017. By way of summary, her Honour found that the numerous complaints made by the father and paternal grandmother regarding the welfare of the child whilst in the care of the mother were not substantiated. While the parenting capacity of both parents was a concern, her Honour ultimately made orders for the child to live with the mother and spend no time with the father. Orders were also made restraining the father from coming into contact with the mother or the child. The decision explains that a significant concern of the Court was the prospect of the child being adversely impacted by the entrenched conflict between the parents.
There is a clear overlap in the Court’s consideration of the parties’ respective applications. However, the father carries the persuasive onus of satisfying the Court that orders should be made in terms of that which he seeks and, conversely, the mother carries the persuasive onus of satisfying the Court that the proceedings should be dismissed.
I have determined that, even approaching consideration of the issue from the perspective of the mother carrying the persuasive onus, the father’s applications for both interim and final orders have no reasonable prospects of success and should be dismissed.
As a related issue, I have found that the conduct of the father in the period subsequent to her Honour’s orders have, in my view, confirmed the wisdom and foresight of Rees J’s analysis of the parties’ dispute. Having regard to the conduct of the father in the period since the final orders were made, in the exercise of its discretion, the Court should reject the father’s application for the re-opening of the final parenting orders made on 12 October 2017. Permitting the litigation to be re-opened would not be in the child’s best interests.
BACKGROUND
The background to the parental dispute up until 24 August 2017 has been set out in substantial detail from [20]–[127] in the reasons for judgment of Rees J dated 12 October 2017, Picton & Crowley [2017] FamCA 811 (“Rees J’s judgment”). It is not necessary to repeat those facts in this judgment, save to note that a substantial part of the father’s current application for both interim and parenting orders is based on the father’s assessment that her Honour erred in making certain findings of fact. This is despite the fact that the father unsuccessfully appealed against Rees J’s judgment, with the Full Court giving reasons for dismissing the appeal on 30 May 2018: Crowley & Picton [2018] FamCAFC 100.
Findings of Rees J
Following her typically comprehensive analysis of the evidence, Rees J made a number of findings which are relevant to the consideration of the father’s current application. Those relevant findings are set out immediately below.
At [141], her Honour did not accept the evidence of the father that his belief that the child witnessed the mother performing oral sex is what compelled the father to withhold the child in May 2013.
At [142]–[145], her Honour did not accept the father’s contention that there had been a violent incident involving the mother at the mother’s home on 1 December 2014.
Further, at [146]–[208], her Honour did not accept the father’s contention that the child sustained a neck injury at the hands of the mother on 23 August 2015. At [205]–[208] of her decision, Rees J provided the following summary of evidence in respect of the father’s contention;
The medical evidence available from professionals who have physically examined X indicates that there is an existing and significant injury to X’s neck. However, I am not able to make a finding that X’s current injury can be attributed to the mother allegedly strangling X or grabbing him by the neck, or that the allegation is true.
Numerous, differing accounts of the allegation have been provided to authorities (police, FACS, JIRT) and medical professionals during the course of these proceedings. After being interviewed by JIRT, the interview records note that X was unable to recall the alleged strangulation with any specificity. I accept the evidence given by Dr H, and outlined later in these reasons, that X is under immense pressure to please his father. X’s alleged version of events as disclosed to his father must be considered in that context.
The various medical professionals who have assessed X with respect to this injury have relied on the father’s or paternal grandmother’s version of events. When X was seen with his mother at his general practitioner, the doctor noted that X was “jumping around” when not being examined, and it was also noted that the doctor considered the examinations to be “unreliable”.
In addition, both Dr S (physiotherapist) and Dr KK (specialist paediatrician) opined that it was not possible to say for certain what had caused X’s injury, due to the time that had lapsed and other possible causes of the injury, such as a bruising or bump to X’s head. I note that the paternal grandmother alleged that Mr J pushed X down a flight of 12 stairs when X was three years old.
(Citations omitted)
Her Honour was not satisfied that an act of inappropriate sexual conduct occurred between the child, then aged seven, and an eight-year-old girl as alleged by the father (at [209]–[210]).
Her Honour found that, at a court ordered changeover on 15 December 2016, “the father was unable to return [the child] to his mother in a civilised and child focused manner” and, further, that the event “suggests that any orders providing for changeovers to occur between the parents would be both difficult and traumatising for [the child]. It is at such a time where he would be most confronted with the conflict between his parents” (at [220]–[221]).
Her Honour found that neither the father nor the paternal grandmother are capable of shielding the child from the parental conflict. At [277]–[280], Rees J stated:
The paternal grandmother has demonstrated no concern with breaching court orders. To the contrary, she was adamant that such breaches as had occurred were required in X’s interests.
I cannot be satisfied that the paternal grandmother is capable of shielding X from her unrelenting negative views of the mother. It was the evidence of the Family Consultant in 2014 that X had been exposed to the paternal grandmother’s views of the mother.
In addition, Dr H expressed in her report, outlined later in these reasons, that “Far from shielding the child from their acrimony, there is every indication [the father and paternal grandmother] denigrate the mother to the child and attempt to align him with them against her.”
I do not accept that this circumstance would change if orders are made for X to resume spending supervised time with his father. The orders which have been made in these proceedings, which would have had the effect of shielding X from his paternal grandmother’s attitudes towards his mother, have been disregarded by the paternal grandmother and I am unable to assume that any other order which could be crafted would be any more effective.
(Citations omitted)
Her Honour rejected the father’s contention that the mother’s alleged mental illness has a detrimental effect on her parenting capacity. Her Honour stated at [320] that “to the contrary, the evidence of the [child’s] counsellor Ms W, and the evidence of Dr H suggests that the mother’s parenting abilities have been improved by her interaction with supportive counselling” and further inferred at [318] that, on the basis of the evidence presented, “the mother will feel less anxious and will be better equipped to parent [the child] once the litigation is concluded.”
After summarising the content of various supervision reports provided by V Centre, her Honour concluded at [352] that the reports “indicate that the father continually engaged in inappropriate conversations with [the child], despite being under strict conditions and in the presence of a reporting supervisor, which led to V Centre terminating their services. I am not satisfied that, if orders are made for the father to recommence spending supervised time with [the child], this behaviour would cease.”
Her Honour accepted the evidence of Dr H at [424] who provided a family report in respect to the proceedings including her concern that the “father would encourage “factitious” medical complaints in his quest to discredit the mother.”
Having regard to the opinion of Dr H, her Honour concluded that the stress involved in the child maintaining his relationship with the father outweighed the benefit of the child having a meaningful relationship with the father.
While Her Honour expressed concerns with some aspects of the mother’s parenting, she accepted the evidence of Dr H at [458]:
That the efforts that the mother is made, since at least the beginning of 2017, if not earlier, have had a real effect on X’s progress. She has engaged with counsellors, both for herself and X and has learned parenting strategies which have assisted her to help X regulate his behaviour. The improvement in X’s behaviour has been noted by both his school and Ms W, his psychologist.
Her Honour accepted the opinion of Dr H that the father’s conduct in taking the child to repeated interviews with police to make complaints and also to appointments with doctors and counsellors was “in itself a form of abuse” (at [471]).
In terms of parental responsibility, her Honour found at [477]–[478] that the father failed in what she appropriately described as perhaps the greatest responsibility of parenthood, being the “responsibility to model to the child respectful behaviour towards the other parent and give the child permission to love each parent” and that “the father has demonstrated contempt for the orders made by the court in his repeated breaches of orders” (at [479]).
Her Honour noted that the prediction of Dr H had come to fruition, namely, that if the father continued to have contact with the child, there would be further applications made to the Court (at [481]). In that respect, at [482]–[486] of her decision, Rees J stated:
The father has failed to comply with orders of the Court.
He has retained X, contrary to orders, requiring court intervention in March 2015, September 2015 (when I note that the return was voluntary but only after the mother filed an application), and in December 2016.
He has consistently ignored the order made on 7 October 2015 restraining him from permitting X to be bought into contact with the paternal grandmother. How much contact she had with X is not clear. She went with X to a number of doctors, most recently Dr S. In cross examination she said that, although she was aware of the orders of 7 October 2015, she was having a lot of contact with X and taking him everywhere.
The father has also consistently ignored the order made on 7 October 2015 restraining him from taking X to medical practitioners.
I accept the evidence of Dr H that any further contact between X and the father will lead to further litigation.
(Citations omitted)
As an observation at this point, I note that the prediction has been accurate in terms of proxy communication that has occurred on behalf of the father through the paternal grandmother and through the father’s eldest son, Mr O (“Mr O”). In that context, Order six of the orders made by Rees J permitted the father “to cause a third party to deliver, or post, gifts and cards to [the child] on his birthday and at Christmas.” As will be set out below, the father has sought the assistance of his mother and Mr O in undertaking that task. Their attendance at the mother’s home has, however, on several occasions, resulted in conflict occasioning police attendance at the mother’s home.
In her judgment, Rees J noted at [112] and from [126]–[127] that the child had personal challenges which impacted upon his ability to regulate his behaviour. These personal challenges related to the child being diagnosed with ADHD and possibly autism. At various places in her judgment, Rees J referred to evidence from the child’s school that he also experienced learning difficulties. Having regard to those matters, significantly, at [487] of her judgment Rees J stated:
[The child] is a vulnerable child who has suffered behavioural and educational problems. He needs to have every possible opportunity to grow up and reach his full potential. He cannot achieve that goal if all of his energies are expended on weathering the storms of the conflict between his parents.
The judgment of Rees J was subject to an appeal, with the decision of the Full Court being delivered on 30 May 2018. The appeal was dismissed.
Significantly, the Full Court in determining the appeal rejected an application by the father to adduce a transcription of JIRT interviews with the child. It was determined that the evidence, if it had been called during the trial, would not have changed the outcome of the proceedings. The father, in these proceedings, renewed his application to rely upon recordings of those interviews. The father’s application in that respect was dismissed for reasons provided in transcript dated 23 November 2021.
Relevant events in the period subsequent to the judgment of Rees J
Following the Full Court decision, events have occurred that are relevant to this judgment.
On 23 August 2018, Mr O, the adult son of the parties and older brother of the child filed a separate application in the Federal Circuit Court of Australia (as it was then known) seeking orders for the child to spend alternative weekends and school holidays with him. At the time, Mr O was living with the father.
On 3 October 2018, Mr O’s application was transferred to the Family Court of Australia (as it was then known).
On 5 December 2018, police attended the mother’s home to undertake a welfare check after a report of domestic violence and drug use. No action was taken consequent to the police attendance.
On 25 December 2018, the police were called to the mother’s residence as a result of a dispute that arose in circumstances where the paternal grandmother attempted to deliver a Christmas present to the child. No police action was taken in respect to that incident.
In 2019, the paternal grandmother visited the child while he was in the playground at school. The school reported that this caused him distress.
In late 2018 or early 2019, the father commenced legal proceedings against the child’s general practitioner, Dr YY, alleging malpractice on the part of the doctor.
In 2019, the father engaged lawyers to make a complaint to the Commissioner of Police in respect to police failing to further investigate the father’s allegations that the mother had caused an injury to the child’s neck.
On 16 January 2019, the mother, the father, and Mr O attended a court-based Child and Family Meeting with Family Consultant ZZ.
On 22 February 2019, during the course of an interim proceeding before acting Senior Registrar, the solicitor for Mr O discontinued the proceedings commenced by him.

At some stage subsequent to July 2018, Mr O’s gun licence was revoked,[1] however there is insufficient evidence before the Court to determine the circumstances in which that occurred.
[1] Transcript 23 November 2021, p.33 line 19 to p.34 line 5.
On 13 June 2019, the child was awarded Victims Compensation in respect to a neck injury which it was found that he had sustained.
On 23 September 2019, the paternal grandmother commenced separate proceedings in the Federal Circuit Court of Australia (as it was then known) seeking orders for the child to spend time with the paternal grandmother on alternate weekends.
On 4 November 2019, the application by the paternal grandmother was transferred to the Family Court of Australia (as it was then known).
On 6 November 2019, the father filed his current application and supporting affidavit seeking orders that the child spend time with him, on the grounds that there had been a significant changes in circumstances since the final orders of Rees J in October 2017.
On 9 January 2020, the mother filed her response to the application for final orders and a supporting affidavit. That application was for the father’s application for both final and interim parenting orders to be dismissed.
On 10 August 2020, the father and Mr O attended AB Town Police Station and provided witness statements alleging that the child had been assaulted. No action was taken by the police.
On 19 October 2020, Ms AC sent a letter to the Law Enforcement Complaint Commission on behalf of the father.
On 2 November 2020, the matter was listed before a Senior Registrar, at which time it was adjourned until 10 December 2020. The matter was subsequently listed on that date and adjourned for a further occasion until 6 April 2021.
On 6 April 2021, consequent upon Senior Registrar’s appointment as a judge of the Federal Circuit Court, the matter was heard by another senior registrar who adjourned the matter until 6 June 2021. That date was, however, subsequently vacated.
On 20 April 2021, the paternal grandmother filed a Notice of Child Abuse, Family Violence or Risk.
On 6 May 2021, the paternal grandmother filed an Application in a Case seeking interim parenting orders.
On 27 July 2021, the child attended a Child Inclusive Conference with a family consultant, during the course of which the child advised the family consultant that he did not wish to see his father.
On 19 August 2021, the father filed an Amended Application in a Case and affidavit in support.
On 26 August 2021, the interim hearing before the senior registrar took place and orders were made dismissing all extant applications, including the father’s application for final and interim orders.
On 10 September 2021, the father filed his application for review of the senior registrar’s orders.
Nature of review proceedings
By application for review filed on 13 September 2021, the father sought a review of the senior registrar’s orders made on 24 August 2021 which, as noted, dismissed all extant applications.
The review of a registrar's determination is an original hearing in the sense that error does not need to be established: Feiteiro & Feiteiro [2019] FamCA 647 at [17] referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [43].
In circumstances where it is unnecessary to determine whether there was an error on the part of the senior registrar, it is unnecessary for me to determine whether, in dismissing the father’s application, the senior registrar exceeded her delegated powers pursuant to r 18.05 of the then applicable Family Law Rules 2004 (Cth) (“2004 Rules”).
As noted, I will be considering the issues which were before the senior registrar on 24 August 2021 and gave rise to her orders on that day, afresh.
APPLICATION
In the case of the father, he is pressing for the orders sought in his Amended Application filed on 19 August 2021,[2] which, relevantly, are as follows:
[2] Transcript 23 November 2021, p. 4 lines 1-13
(1)That the matter be reopened pursuant to Rice and Aspland.
(2)That the Father have sole Parental Responsibility of [the child]:DOB" … 2009 currently 12 years of age. (The child).
(3)That the child lives with the Father.
(4)That child spend time with the Mother as agreed to between the parties,
(5)Failing an agreement in respect of order 4. The Mother spend time with the child supervised by R Group. For a minimum of 4 hours a fortnight.
(6)That the child attends to a Magnetic Resonating Angiography (MRA) by Specialist Pediatric Neurosurgeon Dr. S at the earliest opportunity.
(7)That the child attends counselling with child trauma qualified Clinical Psychologist.
(8)For the purposes of order 6 and 7 the costs are shared equally between the parties.
(9)That the child has Telephone contact with the Mother while in the Father's care as he wishes.
(10)That the matter be referred to the relent authorities in respect of the Mother's perjury.
(As per the original)
Comparatively, in her response filed on 10 January 2020, the mother sought orders for both the father’s application for substantive orders and the father’s application for interim orders to be dismissed.
As the mother’s application seeks a dismissal of not only the father’s application for interim orders but also the father’s application for substantive orders, it is necessary to consider the final orders as sought by the father in his initiating application filed on 6 November 2019. Those final orders as sought by the father were simply stated as follows:
(1)That after all the evidence is examined in the child’s best interests at [sic] the child live with the father.
It can be seen that, insofar as both the interim and final orders sought by the father seek an order for there to be a change in the child’s residence, similar considerations apply in respect to the mother’s application for both the father’s applications for interim and final orders to be dismissed. For reasons which I will set out, I have determined that both of the father’s applications should be dismissed.
Evidence
The father relies upon the following evidence:
(a)Affidavit of the father sworn 26 July 2021;
(b)Affidavit of the father dated 19 August 2021;
(c)Affidavit of the father dated 19 November 2021; and
(d)Unsworn affidavit of Ms AD served and provided to the Court on 23 November 2021, marked as exhibit “E”.
The mother relies on the following documents:
(a)Response filed 10 January 2020;
(b)Affidavits of the mother filed on 9 December 2019 and 23 August 2021; and
(c)Child Inclusive Memorandum dated 27 July 2021.
The Independent Children’s Lawyer (“ICL”) relies upon a tender bundle marked exhibit “A” in the proceedings and the Child Inclusive Conference Memorandum dated 27 July 2021.
Consideration
The father’s Rice and Asplund application
In his Amended Application in a Case filed on 19 August 2021, the father seeks, as his first proposed order, an order that “the matter be reopened pursuant to Rice and Aspland [sic].” As that application was filed prior to 1 September 2021, it is necessary to consider the application in the context of the then applicable 2004 Rules.
Rule 10.14 of the 2004 Rules empowers the Court to decide an issue in the proceedings prior to the final hearing, including in circumstances where the determination of that issue would “dispose of all or part of the case” or “make a trial unnecessary” (r 10.13). A rejection of the father’s application that the proceedings be “reopened” will result in the proceedings being dismissed.
As the moving party, the father carries the persuasive onus of satisfying the Court that it should exercise its discretion to reopen the proceedings.
The basis upon which the father seeks that order is set out in the father’s affidavit filed on 19 November 2021 as follows:
The following is the list of Rice & Asplund issues:
X will be 13 on … 2022. X needs a positive male role model in his life. I have never ever harmed [the child]in any way. I was wrongly accused of attempting to alienate [the child] from his mother because I did what any protective parent would. I tried to protect [the child] and get medical attention and treatment for him.
I have been extinguished from [the child’s] life for nearly five years.
Several times Police failed to comply with Subpoena to produce the 9th September 2015 recorded JIRT interview of X. Due to the failure by Police the interview was not able to be played at Final Hearing 2017. I believe if the interview was available to be played at Final Hearing it would have changed the outcome of the Final Hearing.
From these paragraphs, it can be seen that the primary focus of the father is upon his contention that there was effectively a miscarriage of justice as a result of Rees J failing to consider relevant material. This is emphasised in annexure “1” to the father’s affidavit filed on 19 November 2021, where the father attaches a Court fact sheet summarising the principles of Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”), with the father highlighting the sentence;
The current orders were made without all the relevant information having been made available to the court prior to the making of those orders.
For completeness, I have considered the father’s application from that perspective and also from the perspective as to whether there has been any change in circumstances that justifies revisiting the orders of Rees J. For reasons which I set out, I have rejected the father’s application considered from both perspectives.
Relevant legal Principles – Rice and Asplund issue
Section 65D(2) of the Family Law Act 1975 (Cth) (“the Act”) empowers the Court to make “a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.” However, the principle derived from the decision of Rice and Asplund provides guidance as to whether the Court should exercise its discretion to make orders revisiting parenting orders which are already in place. In that respect, in Poisat & Poisat (2014) FLC 93-597 (“Poisat”) and Elmi & AD (2019) FLC 93-912 at [89]–[91], the Full Court referred to a useful summary of the principle as set out in the explanatory memorandum to the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, which described the “principle in Rice and Asplund” as limiting:
… the court’s capacity to rehear matters in two kinds of cases: those where there is a change in the circumstances of the parties where some new factor has arisen which would justify a serious step; and those where there is some factor which was not disclosed at a previous hearing that would have been material.
It is not generally in the best interests of the child to have repeated applications concerning them before the courts…
The note following sub-item 47(2) directs the reader to the principle in Rice and Asplund. This note is to assist readers, particularly self-represented litigants, to understand how sub items 47(2) links to the common law.
(Family Law Amendment (Family Violence and Other Measures) Bill 2011 (Cth), Explanatory Memorandum. See, also, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth), Supplementary Explanatory Memorandum, at [10]-[13])
As noted, the rationale behind the principle is that it is not generally in the best interests of children for there to be repeated applications concerning parenting arrangements for the child: see McEnearney & McEnearney (1980) FLC 90-866; SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1 (“Marsden & Winch”) at [47].
In Tindall & Saldo (2016) FLC 93-727 at [88], the Full Court observed:
…the relevant threshold determination is not met merely by a conclusion that ‘fresh evidence’ exists. It is, as the cases demonstrate, the nature and quality of the change in circumstances that is relevant.
In Marsden & Winch, the Full Court at [50] set out matters the Court should consider when considering whether a change in circumstance exists:
(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.
Should the orders made by Rees J be reopened as a result of the trial judge not receiving into evidence video recordings of JIRT interviews with the child?
At the hearing of this matter, the father contended that it was relevant that neither the trial judge nor the Full Court had before them the video recording of interviews conducted by JIRT with the child in 2015 and 2016.[3]
[3] Transcript 23 November 2021, p.10 lines 12-13.
For reasons stated in the transcript of the hearing on 23 November 2021, I dismissed the father’s application to tender the video recording of the interviews on the belief that I did “not believe that the video would have altered the nature of the proceedings, the outcome of the proceedings either before the trial judge or the Full Court”.[4]
[4] Transcript 23 November 2021, p.14 line 44 to p.45 line 27.
The substance of both of those interviews was considered by the Full Court at [40]–[47] of their decision as follows:
A further JIRT interview took place on 19 December 2016. The primary judge reproduced the entire summary of that interview in her reasons at [194] as follows:
194. [The child] was interviewed by JIRT on about 19 December 2016. The interview was summarised as follows:
Analysis of Interview:
•Relationship between [the child] and his mother observed, [the child] was not seen to be frightened of his mother, holding her hand and apologising for making her sick ([the mother] was not well at the time of the JIRT interview of [the child]).
•Terms used by [the child] throughout the interview - such as 'she had the hide to lie at Court (sic)', 'my mum she twisted it, when I was like 4, cause she was fighting with her partner' however later referred to her (mum) and her partner as 'Ms Picton's psycho crazy boyfriend'.
•Aware of Court information as dad had told him, 'she lies in Court all the time. Dad has to go to Criminal Court now that's how bad she is; he told me he has done all the right things'.
•[The child] advised his dad has said 'mummy is in trouble'
•Reference to his father throughout the interview 'daddy, the one I love most'.
•[The child] stated that the incident happened 'when I was like 6, 4, and 2'. [The child]'s recall of this event commenced with him remembering that he was running across the road to see his daddy as he hadn't seen him in 9-10 days. Mum hadn't had any Court Orders so daddy came their (sic) to get me. There was nothing about custody. However the actual event of mum strangling him, [the child] was quite limited in recall stating that mum placed 2 hands around his neck and he told his father later when he went to his place.
•Memory recall at the age of 6 and 4 years was not free narrative and only limited context could be provided by [the child] about what had happened.
•[The child] was asked if there were any other times mum had hurt him, he advised that 'only when I am in trouble and get a smack on the bum, when Mr O was naughtier he used to get smacked with the belt … dad told me'.
•[The child] was able to provide clear particular detail about an occasion where his brother had to be taken to hospital as he had fainting (sic), to the point of the color (sic) armband they put on him.
•[The child] was asked how he felt about his mother and was told 'I don't want to live with Mummy, she has done naughty things' and when asked the same question about his father [the child] said 'he has had such a hard life in Courts and done all the right things.. he told me (sic) has done all the right things.'
•[The child] confirmed that his father had told him of all the wrong / naughty things mum had done, but stated 'I don't remember'.
The police took no action in response to either JIRT interview.
At best, in a manner that lacks any detail, in the 9 September 2015 JIRT interview the child described two incidents that could be possible causes of his neck injury. His answers add little to the later JIRT interview. It is most unlikely that the receipt of it into evidence would lead to a different outcome.
The second aspect of the interview relied upon was the following answers from the child (errors as per the original):
[The detective]: "X do you like staying with your Mum?"
[The child]:     "Ur, No."
[The detective]: "What else happens there that you don't like?"
[The child]:     "Um Mr A fights with Mum and that's what makes me really scared."
[The detective]: "Tell me about that when your scared."
[The child]:     "Um she,"
[The detective]: "Tell me about what makes you scared at your Mummy's."
[The child]:     "Um well she um well she twisted, well when she has fights with Mr A that makes me a bit scared and also when um when she um yells."
[The detective]: "Who does she yell at?"
[The child]:     "Mr A."
[The detective]: "Is Mr A Mummy's partner?"
[The child]:     "Yes."
[The detective]: "Okay. And how do you feel when your at that house when that's happening?"
[The child]:     "I feel um not to well."
[The detective]: "What about your Dad?"
[The child]:     "I try to run away from Mum when their yelling and stuff."
The reference to "Mr A" is a reference to Mr A, who was the mother's partner in 2013 and 2014. The primary judge's finding that they separated after an argument on 1 December 2014 was not challenged, even though it appears that they may have maintained some form of relationship after that date (see [370]).
That period in the mother's life was marked by many police attendances at her home, often at her request. Her Honour recorded:
449.In 2013, the mother's life was chaotic and characterised by house parties at which there was sexual activity. The mother gave evidence that the parties in her house, where [the child] was living, were arranged by her older sons and that the parties did not occur when [the child] was with her. Her explanations of occasions when a man at a party at her house attempted to rape her, of threats to harm her and Mr O if the police were told about various sexual offences committed at a party, and of excess consumption of alcohol at parties, was extremely concerning. She admitted that she had a sexual encounter with C, a friend of one of her older sons, although she was adamant that [the child] had not been present.
…
452.[The child]'s dysregulated behaviour, both at school and at his mother's home, is a matter for which both parents must share responsibility. I accept the evidence of Dr H that neither parent has demonstrated good, consistent parenting.
Plainly, the primary judge gave significant weight to the poor state of affairs in the mother's house at that time. The child's statements in the JIRT interview add little to that sorry picture and would not point to a different outcome.
The oral application to adduce the JIRT interview will also be dismissed.
(Citations omitted)
There was no suggestion that the trial judge received an inaccurate transcription of the child’s interviews with JIRT and no argument was presented as to why viewing the actual recording of the interviews would cast any further light on the substance of those interviews. Accordingly, the fact that neither the trial judge nor the Full Court viewed those recorded interviews does not, in my view, fall into the category of where it may be appropriate to reopen the case because “there is some factor which was not disclosed at a previous hearing that would have been material.”: see Poisat at [12].
Should the orders made by Rees J be revisited as a result of changed circumstances?

As noted by reference to Marsden & Winch, the changed circumstances which are relied upon to justify revisiting previous parenting orders must be such that “there is a likelihood of orders being varied in a significant way, as a result of a new hearing” (at [50]).
The changed circumstances relied upon by the father, in respect to events which have occurred since the judgment of Rees J delivered on 12 October 2017 and taking his affidavits in sequence, are as follows:
Father’s affidavit sworn 26 July 2021:
At paragraph nine, the father refers to clinical notes made by a child psychologist, Ms AE, on 5 July 2018, including a record that the child expressed feelings of “missing dad.”
At paragraph 10, there is a further reference to clinical notes of Ms AE made on 19 July 2018, which included a reference to a discussion with the child concerning “sharing feelings of loss and sadness about his dad.”
At paragraph 11, the father included reference to further extracts from the clinical notes of Ms AE dated 19 February 2019, which included a reference to a statement by the child, conveyed through his mother, that he wished his father was in jail which, by way of parenthesised comment, the father disbelieved.
At paragraphs 12 and 13, the father expressed concerns regarding what he viewed as shortcomings in respect to the proceedings before Rees J, which appear to relate to the father’s belief that there has been a miscarriage of justice. That evidence should be seen in the context where the father was unsuccessful in his appeal against the decision of Rees J and, most relevantly, does not set out any changed circumstances justifying revisiting the decision of Rees J or the orders that her Honour made after a careful and well-reasoned judgment.
From paragraphs 14 to 29, the father expressed concern regarding the manner in which his application filed on 6 November 2019 has been dealt with by the Court. Those paragraphs do not contain a reference to any changed circumstances that justify revisiting the orders made by Rees J.
At paragraph 30, the father is critical of the ICL and contends that the ICL “has completely ignored all the proof of [the child’s] ongoing child abuse and the mother’s failure to provide medical attention and treatment for [the child’s] neck injury that she caused.” The father also contends that the ICL “has ignored all of the mother’s ongoing perjury and seems to have sided with the mother’s solicitor.” Aside from the father’s assertions, there is no evidence of substance that the child has been abused by his mother in the period subsequent to the orders made by Rees J, and the father’s concerns regarding the position taken by the ICL are not relevant to determining whether there have been any changed circumstances.
Further, also at paragraph 30, the father expresses concerns regarding the extent to which the mother has facilitated the child having a meaningful relationship with Mr O and the paternal grandmother. Even taking the father’s evidence at its highest, it is not, in my view, a changed circumstance that justifies revisiting the orders made by Rees J.
Within paragraph 30, the father is otherwise extremely critical of the mother, including accusing her of lying, committing perjury and engaging in “perverse sexual activity”. Aside from being relevant to the third consideration referred to in Marsden & Winch, to which I will refer, the evidence set out in paragraph 30 of the father’s evidence does not establish any change in circumstances that warrants revisiting the orders made by Rees J.
In summary, none of the evidence presented by the father in this affidavit establishes changed circumstances that justify revisiting the orders of Rees J.
Affidavit of the father dated 19 August 2021
The affidavit sworn by the father on 19 August 2021 substantially revisits matters that were considered by Rees J in her judgment. This included the father continuing to make disparaging remarks concerning:
·The mother’s mental health (at paragraph 30);
·Alleged sexual impropriety of the mother;[5] and
·The mother being a person who constantly commits perjury (at paragraph 47).
[5] Affidavit of the father dated 19 August 2021, paragraphs 7, 27 and 37. See also, by way of annexure, pages 16, 27, 81, 82 and 84.
The father also generally included evidence attempting to revisit his allegations of family violence occurring in the mother’s household on dates prior to the decision of Rees J. The father further contended that he was unable to conduct his trial fairly as a result of inability to pay for legal representation until a period that was six weeks prior to the trial. The father repeated his concerns regarding the failure by police to produce the actual video recordings of the JIRT interviews conducted with the child in 2015 and 2016. The affidavit also sought to revisit the issue of causation of the child’s neck injury.
In terms of potentially relevant changed circumstances since the date of that decision, the father presented the following evidence:
·That the child has recently told his elder brothers that “as soon as I am 14, I am going to get a job and leave home and live with my mates” (at paragraph 34)
·That the mother has denied the child spending time with the paternal grandparents (at paragraphs 35 to 36)
·That when the paternal grandmother visited the child at his school playground, the child said that his mother had told him that “my dad is a bad person and he has done some really bad things” (at paragraph 36)
·That the father is concerned about the child having poor school attendance (at paragraph 40)
·That the father is concerned with the child receiving a poor NAPLAN result in 2018 (at paragraph 41)
·That the father is concerned that the child is continuing to underachieve at school (at paragraph 42)
·That the child has engaged in acts of violence towards other children at school. In that respect, the father referred to annexure “K” to his affidavit which does not appear to be relevant. However, annexure “L” attaches a “behavioural referral notice” which notified the mother that the child had received a “yellow slip for inappropriate behaviour in the playground” which included the following two line summary:
physical violence in a play situation
choking, hand over mouth kicking
(As per the original)
·That the mother failed to facilitate the child spending time with Mr O over Christmas 2018, including that the mother incorrectly stated that the child’s other brother, Mr J, was unwilling to supervise any such contact (at paragraph 46).
·That “there is currently family violence in the mother’s home as recent as April 2019” (at paragraph 45)
The father otherwise, at paragraphs 48 to 56, provides evidence of his current situation and steps that he would take to assist the child, including:
·Showing an interest in the child finishing his higher school certificate and
·Seeking tutoring for the child to improve his grades at school.
It is to be noted that the behavioural referral notice referred to by the father is dated 21 March 2017, which predates the decision of Rees J and does not constitute changed circumstances. This is in circumstances where Rees J gave particular attention to the child’s behavioural challenges and the progress that he had been making in that respect.
Further, at paragraphs 18 and 19, the father refers to the making of Apprehended Violence Orders naming him as a protected person. Those orders predate the decision of Rees J.
The father attaches to his affidavit, at annexure “C”, a notice of decision of the Acting Commissioner of Victims Rights dated 13 June 2019 which, by way of summary, awarded compensation to the child in the sum of $5000 in respect to his neck injury. Paragraph six of that report makes it clear that the alleged events occurred between 1 April 2013 and 20 August 2015, prior to the decision of Rees J. In any event, I respectfully agree with the submission by counsel for the ICL that a decision by a state administrative body does not create an issue estoppel, nor establish the facts propounded in the administrative determination. In that respect, [24] of the decision specifically notes that the decision was, as would be expected, made “on the available evidence.” That evidence was provided exclusively by the father who was the applicant for compensation on behalf of the child. That evidence was not tested nor was the mother presented with an opportunity to respond to the evidence.
In summary, none of the evidence presented by the father as set out in his affidavit filed on 19 August 2021 establishes changed circumstances that justifies revisiting the orders of Rees J.
Affidavit of the father sworn on 19 November 2021
In his affidavit filed on 19 November 2021, the father again alleges that he has been the subject of a miscarriage of justice in respect to the previous proceedings, which gave rise to the orders of Rees J. In terms of evidence that is potentially relevant to the issue of changed circumstances, the father attests as follows.
Under the subheading “school attendance and behaviour”, the father refers to subpoena material from AG School, which he states he viewed in February 2020. That evidence essentially repeats evidence set out in his August 2021 affidavit and contains no additional material that would establish changed circumstances. The school reports attached to the father’s affidavit show that the child continues to have challenges with his education but presents a much brighter picture in terms of his behaviour and effort. The fact that he continues to have academic challenges is entirely predictable in the context of the evidence before Rees J that the child has ADHD and possibly autism.
Under the subheading “medical subpoena information”, the father contends that:
·“[the child] is not receiving medical attention and/or treatment for his serious neck injury” including expressing concern that the child has not undergone “an MRA.”
·The mother has taken the child to an excessive number of medical professionals and obtained an excessive number of prescriptions. It is difficult to reconcile this evidence with the father’s contention that the mother has neglected the child’s health.
·The father also refers to comments which the father contends were made to him by the child’s then treating general practitioner, who the father notes has not treated the child since 2015 and did not prescribe Prochlorperazine for the child. There is otherwise no evidence that the mother has inappropriately administered any medication to the child.
Under the subheading “Dr AE psychologist”, the father refers to extracts from subpoenaed material, including:
·Clinical notes made on 5 July 2018 wherein “[the child] expressed feelings of “missing dad”.
·The psychologist’s observations on 19 July 2018 of the child being “tired, laying across [his mother’s lap].
·The child stating that it was his responsibility to look after his mum.
·Assisting the child to share his feelings “of loss and sadness about his dad.”
The father contends that the documentation produced under subpoena confirms the father’s assessment that the mother continues to suffer mental illness.
Further, under that subheading at paragraph H, the father refers to records made by the child’s treating general practitioner on 23 October 2019 that the child had been taken to the doctor in respect to “neck pain last two – three days.”
Under the subheading “police and domestic violence,” by way of summary, in terms of events that have occurred in the period subsequent to the decision of Rees J, the father repeated his earlier evidence that, on 13 June 2019, the child was awarded $5000 by way of victims compensation in respect to his neck injury, as well as an award of compensation from Victim Services that the father received on 22 February 2018. Again, the events which are the subject of those decisions predate the decision of Rees J and I have previously referred to the significance of such an administrative decision.
The father further attested that:
·On 20 January 2018, the child witnessed a fight between his older brothers, Mr O and Mr J, which resulted in a police attendance.
·On 1 April 2018, a further event occurred which resulted in police attendance.
·On 12 April 2020, the mother’s partner shouted at the paternal grandmother and that “both [the child] and [the paternal grandmother] were exposed to threats and domestic violence.”
·On 6 December 2018, the police attended the mother’s home, which the father alleges was as a result of “domestic violence.”
More generally, the father contends that the child has told his elder brother Mr O that he stays in his room and is fixated on “playing Xbox games.”
The father further contends that he had been advised by his son Mr J, on 6 September 2018, that the mother “screams all the time at [the child] and she is getting worse.”
The father further contends that:
·On Christmas Day 2020, the mother only permitted the child to see his brother Mr O for approximately 10 minutes.
·The mother unreasonably called the police when the paternal grandmother attempted to deliver Christmas presents to the child on Christmas Day in 2018.
·The mother unreasonably called the police in response to the paternal grandmother attending the child’s school in May 2019 to deliver a present to the child.
More generally, under the subheading “false allegations” at pages 8 through to 11 of his affidavit, the father responds to evidence presented by the mother. In considering the father’s application to revisit the orders made by Rees J, I have not found it necessary to consider that evidence of the mother which has been challenged by the father and, accordingly, I do not address the father’s evidence in response.
At paragraph K, also under the subheading “false allegations”, the father states:
The mother’s untruths, role reversal, mirroring and grand scenarios have gotten to the point that I have extreme fears for X in the care of his mother who has bipolar disorder and other mental health problems.
Insofar as the father alleges neglect on the part of the mother in respect to the child’s neck injury, annexure “6” to the father’s affidavit records a visit to a general practitioner on 18 September 2019, which reports that the child:
Has had a new phone, has been holding his head in flexion all the time, today woke up with neck pain. O/E full range of movement to all directions with mild pulling both sides with lateral bending, no radiation to any parts of the body advised re holding head and back properly with phones and computers. No need for x-ray now
Clinical notes made by the general practitioner on 23 October 2019 record “neck pain – on phone often – better posture now - no sore neck pain last two – three days.”
Insofar as the father refers to incidents of family violence that have occurred since the decision of Rees J, the ICL’s tender bundle, which is exhibit “A” in the proceedings, includes notes from attending police officers in respect to the following events:
On 21 January 2018, police attended the mother’s home as a result of her eldest sons, Mr J and Mr O, fighting. Police were notified by a neighbour at the request of the mother. The notes record the mother stating that the events arose as a result of Mr O telephoning the mother and requesting contact with his brother. The notes record Mr O as comparatively stating that “it was his mother who was abusive towards him after he went to pick up his brother as per an agreement with his mother.” The notes record Mr O advising the police that his mother “has been diagnosed with bipolar and complaints made to police by her are vexatious.”
The police notes of the incident record the police as being concerned that firearms licensed to Mr O were being held on the premises of the father. The notes record:
Even though the firearms are locked in a receptacle, these firearms could be accessed by Mr Crowley by forcing his way into the receptacle. There may be a significant risk to public safety if Mr Crowley decides to one-day access the firearms, being stored within his home. With recent recorded deaths by shooting in domestic violence incidences and the extensive domestic violence history in the Crowley family it may be the case that nobody in the family should have access to firearms. Perhaps consideration should be given by NSW firearms registry to either no longer allow firearms to be stored at [the father’s address] or whether the firearms licence holder be allowed to continue to hold a firearms licence.
The Court was advised by the father during the course of the proceedings that Mr O’s firearms licence had subsequently been revoked.
Police notes regarding an event which occurred on 10 October 2018 record the following:
It is quite clear that [the paternal grandmother] and [the father] attending the location and remaining in the location was the cause of the police being called as soon as they arrived. Due to the distance between LL Town and U Town in heavy traffic, police were not able to arrive at the premises any sooner, being delayed by an accident on the way to this address. [The paternal grandmother] and [the father] chose to remain at the location rather than leave when asked to do so by [the mother] and the son Mr J. Instead, the parties chose to drive and park the car 20 m down the road, which deliberately inflamed the situation, causing Mr J to drive up to them and again asked them to leave the area and causing an explosive argument.
The police notes of the incident also record concerns held by the police that the paternal grandmother was “present and had sat waiting over an hour for police after the victim told her to leave.” The notes further recorded that the father “was at the location on and off but not sighted by police on the day.” The notes record the assessment by police that the paternal grandmother “lied to police about [the father] ever being present at the location initially.”
Police notes of an incident which occurred on 25 December 2018 record police arriving at the premises of the mother, with the paternal grandmother sitting in the car outside the premises. The notes explained that she had attended the premises for the purpose of delivering a present to the child. The notes record that the mother made the complaint to police as a result of the attendance of the paternal grandmother. Police records determined that the paternal grandmother also complained to the police that her grandson Mr J had swerved towards her in his car. As will be discussed, the police subsequently viewed video footage of the incident and found that, although Mr J had crossed double yellow lines to drive his car in proximity to where the grandmother’s car was located, there was no intent to cause injury. The police notes record the paternal grandmother “started ranting about [the mother] and [Mr J] having bipolar and [the child] not being safe to live at the address with [the mother]”. The notes further record the police cautioning the paternal grandmother that her interaction with them was being recorded on police body cameras, with the police having “tried to keep [the paternal grandmother] on track as she was deliberately trying to deflect the reason why she was hanging around and again complained about [Mr J] driving at her and swearing at her.” The notes further record that the paternal grandmother “continued to ramble about bipolar, drugs and [Mr J] driving at her and police needed to remove the child.”
Police notes of an event which occurred on 27 December 2018 record the police attending upon the paternal grandmother. The paternal grandmother showed footage of what she alleged was the Christmas Day of 2018 incident when Mr J had deliberately driven at the paternal grandmother in his car. Having watched the video recording, police formed the view that Mr J had committed a traffic offence by crossing double yellow lines but that it did not appear that “it was done with the intention of causing harm”. The notes record that the police invited the paternal grandmother to make a complaint regarding Mr J committing a traffic offence and that the paternal grandmother “refused to do so unless she was going to be getting an apprehended violence order”. The notes record the father “became abusive towards police, making threats to go to the Commissioner of police and media because that’s what their lawyer had advised them following the incident on Christmas Day 2018 at Gerringong.”

Police notes of an event that occurred on 23 May 2019 record the mother complaining about the paternal grandmother attending AG School to visit the child. Police notes describe the incident as occurring at approximately 9:00 am on that day as follows:
the grandmother approached [the child] and handed him some presents and cash as she has not been allowed to see him for a number of years. The grandmother asked [the child] where they were living, [the child] refused to answer and became distressed. Teachers from the school recognised this and requested the grandmother leave to which she complied. The principal contacted the mother and advised of the incident, in turn due to family court orders the mother contacted police. Police from late killer Warren failed to attend the school and the job was disseminated to the job to Nowra police. Shortly after police attended the home address of the mother and [the child] and was supplied with the version above. Police spoke to the principal who advised she would issue the grandmother with a banning notice to which police agreed.
The police notes are confirmed in a letter from the Principal of AG School to the paternal Grandmother dated 23 May 2019: see page 20 of ICL’s tender bundle (Exhibit “A”).
The evidence set out in the father’s affidavit filed on 19 November 2021 does not, in my view, provide evidence of changed circumstances that warrants a revisitation of the final parenting orders made by Rees J.
In that respect, the father’s contentions that the mother suffers from mental illness which impacts upon her parenting ability is simply his lay opinion and was firmly rejected by Rees J.
Further, the hearsay evidence of the father as to what he has been told by his sons, Mr O and Mr J, regarding statements made by the child that he spends a considerable amount of time in his room playing video games and that his mother was becoming increasingly irritable and shouting at the child is not such that, even if it were accepted at final hearing, it justifies revisiting the orders. Moreover, I note that the child’s more recent comments to a family consultant that he has a loving relationship with his mother, who he considers cares for him well, is in direct conflict with the hearsay evidence of the father.
When considering the evidence of the father in respect to the events of family violence subsequent to the orders of Rees J and ignoring the more objective reports set out in the notes made by attending police officers, the father’s evidence, in my view, establishes no more than what was predicted by Rees J. That is, that further interaction between the mother and the father was likely to result in acrimony. It being noted that that acrimony has occurred in circumstances where the paternal grandmother has acted on behalf of the father in attending the mother’s residence for the purpose of delivering gifts to the child and, in a further incident where the paternal grandmother attended at the child’s school.
Insofar as one incident resulting in police attendance was an altercation between the parties’ eldest sons, Mr J and Mr O, there is no suggestion that the mother was in any way involved in that altercation.
More generally, while the father makes non-specific assertions that there have been incidents of family violence at the mother’s home, there has been no evidence presented of the alleged incidents where the mother has been violent that have occurred in the period subsequent to the orders of Rees J.
Unsworn affidavit of Ms AD dated 23 November 2021
I have given little weight to the evidence set out in the unsworn evidence of Ms AD when considering the father’s application, other than to assume that, in the event of this matter not being dismissed, at the hearing of the matter, the father would call evidence from Ms AD consistent with that evidence set out in the unsworn affidavit filed on 23 November 2021.
The information set out in that unsworn affidavit is that Ms AD is a solicitor who had been approached by the father in 2019 in relation to a complaint the father made against NSW Police for Failure to Investigate “and [an] incident in relation to his son.”
The subject matter of the complaint is set out in the solicitor’s letter to the Commissioner of Police dated 20 June 2019 and marked as annexure “A” in the affidavit. That letter primarily relates to the father’s complaint that police failed to properly investigate what the father alleges was an incident that occurred on 22 August 2015, in which he contends the child sustained an injury to his neck at the hands of his mother.
The draft affidavit annexes various items of correspondence between AH Lawyers and the Commissioner of Police which primarily relate to concerns expressed by the firm of solicitors that the complaint made on behalf of the father was not being pursued more diligently by the Commissioner or his delegates.
The initial letter of complaint dated 20 June 2019 sets out various contentions as to why the matter should be investigated by police. Those matters include various medical reports which predate the decision of Rees J and, in my view, are not such that the information justifies revisiting the findings of Rees J in respect to this matter or the orders her Honour made.
Summary and conclusion in respect to the father’s application that he be permitted to reopen proceedings
For the reasons which I have set out, the father has failed to present evidence that satisfies me that:
· The final orders made by Rees J should be revisited on the basis that her Honour’s orders were made without all relevant information having been made available to the Court prior to the making of those orders; or
· On the basis that there have been changed circumstances of such significance that it justifies those orders being revisited.
For completeness, I would add that, even if I had been satisfied about either or both of those two issues, I would have declined to exercise my discretion to permit the father to re-visit the orders of Rees J. This would be the basis of the third principle adumbrated in Marsden & Winch, that is, weighing those changes against the potential detriment to the child which would be caused by the continuing litigation itself.
In that respect, the father continues to make scandalous and demeaning allegations against the mother that she is a person who has committed and continues to commit perjury, as well as making references in respect to past sexual indiscretions which, even if sustained, would have no relevance in proceedings considering future parenting orders.
Further, permitting the father to continue this litigation would provide him with a forum to continue to assert that the mother has significant mental illness impacting upon her parenting ability in circumstances where that proposition was firmly rejected by Rees J. Permitting the father to do so would understandably cause considerable distress to the mother, which has the potential to adversely impact upon the mother’s parenting capacity.
Finally, I have had regard to the comments by Rees J at [12] of her decision dated 12 October 2017 noting that these parents have been in a constant state of litigation since 2013 and, in that context, the importance of litigation between these parents reaching finality. In that respect at [318] of her decision, Rees J noted her expectation that the mother “will feel less anxious and will be better equipped to parent [the child] once the litigation is concluded.” The father’s conduct in preventing that from occurring, particularly in circumstances where I have determined that there is no merit to his application, is regrettable.
For all these reasons, I therefore dismiss the father’s application for proposed order 1, as set out in his amended application of 19 August 2021, that proposed order being, as noted, that “the matter be reopened pursuant to Rice and Aspland [sic].” Having dismissed the application for that order, which is foundational to the other orders sought by the father, I dismiss the father’s application in its totality.
Consideration of the mother’s application for the proceedings to be dismissed
As noted, in her response filed on 10 January 2020, the mother seeks an order that the proceedings be dismissed. In circumstances where I have rejected order 1 as proposed in the father’s Amended Application in a Case and consequently dismissed the additional orders sought by the father, there is no need to consider the mother’s application. However, for completeness, for the following reasons, I would have made an order dismissing the proceedings as proposed by the mother, even in the context where the mother carries the persuasive onus of satisfying the Court that such an order should be made.
Relevant legal principles relating to the dismissal of family law proceedings
Section 45A of the Act relevantly provides:
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
Proceedings that are frivolous, vexatious or an abuse of process
(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.
Section 45A was inserted into the Act by the Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth). The Explanatory Memorandum to the Family Law Amendment (Family Violence and Other Measures) Bill 2018, at [74]–[77], relevantly states:
Item 14 would insert new section 45A into the Family Law Act to clarify and modernise the powers of courts under the Act to summarily dismiss unmeritorious applications. It is not intended to change the matters that a court must be satisfied of when determining that a proceeding or defence should be dismissed. It would replace existing section 118, which would be repealed by Item 23.
An explicit power to dismiss unmeritorious applications or arguments brought to harass a party would improve outcomes for victims of family violence by allowing a court to prevent the use of its courtroom as a tool for perpetrators of family violence to perpetuate violence. The new section would complement existing powers to manage proceedings, conferred on courts by Division 12A of Part VII of the Family Law Act (which provides principles for conducting child-related proceedings).
This amendment would also improve court efficiency by providing greater clarity about when applications can be dismissed by the court.
The Victorian Royal Commission into Family Violence noted with approval the inclusion of this amendment in a previous Bill – the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015. The report of the Commission stated that “[s]uch an amendment may go some way to help courts dismiss applications where it is clear that parties are using proceedings merely as a means to further perpetrate violence.”
Further, s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides the power for a judge of Division 1 of the Federal Circuit and Family Court of Australia to order summary dismissal:
46 Summary judgment
(1) The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 1) has apart from this section.
It was observed by the Full Court in Stativa & Stativa [2015] FamCAFC 170 that the Court should take a cautious approach to summary dismissal of proceedings. The Full Court said at [8]:
The power to summarily dismiss an action must be rarely and sparingly used (see Pelerman v Pelerman (2000) FLC 93-037). The Full Court discussed the power of the court to summarily dismiss proceedings in Bigg v Suzi (1998) FLC 92-799 at 84,974–84,975 and adopted the articulation of the principles of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 (“Lindon”) at 544–545, which may conveniently be summarised thus:
•It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
•The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
•That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
•If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
•Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a court will ordinarily allow that party to reframe the pleadings; and
•The “guiding principle” is doing what is “just”. In Lindon, Kirby J said at [545]:
•If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
For reasons which I have explained, in considering the father’s case at its highest and, even without considering the evidence of the mother, I have found that the father’s application is without merit and that it should be dismissed on the basis that he has no reasonable prospect of successfully prosecuting the proceeding. Accordingly, even without taking the course that I have in these proceedings of considering the father’s application pursuant to r 10.14 of the 2004 Rules and, instead, considering the application as an application by the mother to dismiss the proceedings pursuant to s 45A of the Act or, alternatively, s 46 of the FCFCOA Act, I would have similarly found that the proceedings should be dismissed.
That is, on the basis of the father’s own evidence, the mother has discharged the persuasive onus of satisfying the Court that the father has no reasonable prospects of revisiting the final orders made by Rees J in accordance with the principles adumbrated in Rice and Asplund.
Further, even if I had not found against the father on the Rice and Asplund issue, I would have nonetheless dismissed the balance of orders sought by the father on the basis that there are no reasonable prospects of the father succeeding in obtaining those orders.
In circumstances where the child has spent no time with the father since July 2017, and in the circumstances of this case, he has no reasonable prospects of succeeding in orders for there to be a change in the child’s residence and for the father to have sole parental responsibility in respect to the child.
In that respect, as noted by family consultant Arthur in the Child Inclusive Conference Memorandum dated 10 August 2021 and marked as exhibit “B”:
·The child, who is now 13 years old, advised the family consultant at paragraph 30 that “he does not want to see his father because [of] what he experienced in the past”, with the family consultant reporting her observation that the child “seemed genuine in his account” to that effect at paragraph 31; and
·Where the child “described a close and loving relationship with his mother” and “that she is nice and cares about him and he could not identify any difficulties in their relationship or anything he disliked about his mother” at paragraph 27.
Further, despite the child’s personal challenges referred to in the decision of Rees J, the school reports attached to the father’s affidavit and included in the ICL’s tender bundle, marked exhibit “A”, are indicative of the child making progress with his education and behaviour. In that context, the family consultant noted that the child enjoys school, including, in particular, art and library classes. The family consultant also noted at paragraph 26 that the child has one “really good friend at school.”
No evidence has been presented by the father that would, in my opinion, satisfy a court at final hearing that it would be in the child’s best interests that there should be a change in residence for the child, or that the father should have sole parental responsibility. The evidence is to the contrary.
Further, the father has failed to present evidence that the mother has been in any way neglectful of the child’s health, including in respect to appropriate treatment for his neck injury. There is no evidence that the child requires an MRA scan. The evidence attached to the father’s affidavit of 19 November 2021 is expressly contrary to that proposition, with the general practitioner who treated the child in September and October of 2019 recording the doctor’s opinion that the child did not require an x-ray.
Accordingly, for these additional reasons, I would have dismissed the father’s application on the basis that the orders he seeks have no reasonable prospects of success.
Conclusion and orders
I have dismissed the father’s application on the basis that he has failed to discharge the persuasive onus that rests upon him of satisfying the Court that the orders made by Rees J in October 2017 should be revisited. For reasons which I have explained, even taking a more advantageous approach from the father’s perspective, that is, by considering that the mother carries the persuasive onus of satisfying the Court that the proceedings should be dismissed, I am comfortably satisfied that the father’s application lacks reasonable prospects of success, either in terms of the Rice and Asplund issue or in respect to the specific orders that he is seeking.
Accordingly, the father’s initiating application and all subsequent applications shall be dismissed.

I certify that the preceding one hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 17 February 2022

File number(s):	WOC 393 of 2013
Judgment of:	MCCLELLAND DCJ
Date of judgment:	17 February 2022
Catchwords:	FAMILY LAW – PARENTING – Review of a senior registrar’s decision – Where the father seeks a review of orders dismissing the father’s applications for interim and final parenting orders – Where final judgment was delivered in 2017 ordering sole parental responsibility to the mother, for the child to live with the mother and for the child to spend no time with the father – Where the father was unsuccessful on appeal to the Full Court – Where the father seeks to revisit litigation pursuant to Rice and Asplund (1979) FLC 90-725 – Where the father seeks that the child live with the father – Allegations of the child being exposed to family violence and not performing well in school in the mother’s care – Where no sufficient change of circumstances demonstrated – Orders made dismissing the application for a review and upholding senior registrar’s orders. FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks that the father’s applications for interim and final orders be dismissed – Where the preceding determination does not require the Court to consider summary dismissal.
Legislation:	Family Law Act 1975 (Cth) ss 45A, 65D(2) Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth) Family Law Rules 2004 (Cth) rr 10.13, 10.14, 18.05 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46 Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 Explanatory Memorandum, Family Law Amendment (Family Violence and Other Measures) Bill 2018
Cases cited:	Crowley & Picton [2018] FamCAFC 10 Elmi & AD (2019) FLC 93-912 Feiteiro & Feiteiro [2019] FamCA 647 Henley & Henley [2019] FamCA 101 Marsden & Winch (2009) 42 Fam LR 1 McEnearney & McEnearney (1980) FLC 90-866 Picton & Crowley [2017] FamCA 811 Poisat & Poisat (2014) FLC 93-597 Rice and Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 Stativa & Stativa [2015] FamCAFC 170 Tindall & Saldo (2016) FLC 93-727 Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Division:	Division 1 First Instance
Number of paragraphs:	154
Date of hearing:	23 November 2021
Place:	Sydney via webconference
The Applicant:	Mr Crowley in person
Solicitor for the Respondent:	Venus & Smart
Counsel for the Independent Children's Lawyer:	Mr Sperling
Solicitor for the Independent Children's Lawyer:	Ark Law Lawyers

WOC 393 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR CROWLEY Applicant
AND:	MS PICTON Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	MCCLELLAND dcJ
DATE OF ORDER:	17 February 2022