Radecki & Radecki - [2024] FedCFamC2F 811

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Radecki & Radecki [2024] FedCFamC2F 811

File number(s): SYC 5418 of 2023

Judgment of: JUDGE W J NEVILLE

Date of judgment: 27 June 2024

Catchwords: FAMILY LAW – PARENTING – Father’s Application pursuant to s.65DAA to re-visit Final Orders made on an undefended basis in December 2015 when the child was two years old – long history of the Mother facilitating additional time between Father and son – Mother contends that the Father has been inconsistent and unreliable in spending overnight time with the child – while Father acknowledges a significant history of alcohol abuse but nothing in the last 18 months or thereabouts, no details were provided by the Father, whereas the Mother provided subpoenaed police records which show a very significant history of the Father being intoxicated, becoming physically aggressive and various assaults including significant dysregulation in engagements with his family – consideration of significant body of case law regarding Rice & Asplund in the light of statutory codification of the principle from that case – a form of codification of judicial discretion – Father brought no Application to vary or discharge the 2015 Orders until July 2023 – Father’s Application dismissed.

Legislation: Family Law Act 1975 (Cth) s.60B, 60CC(2)(a) – (d), 65DAAA

Cases cited:
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Baisman & Cartmill [2022] FedCFamC1A 36
Carriel v Lendrum (2015) 53 Fam LR 157
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Katar & Sevan [2024] FedCFamC1A 49
Mahoney & Dieter [2020] FamCAFC 88
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52
O’Brien & O’Brien [2017] FamCAFC 219
Phillips v Hansford (No.2) (2020) 60 Fam LR 160
Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725

Shan & Prasad (2020) 61 Fam LR 440

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Stern v Colli (2022) 65 Fam LR 548
Swenson & Brantley (No.2) [2020] FamCAFC 205
Tickner v Chapman (1995) 57 FCR 451

Walter & Walter [2016] FamCAFC 56

Geraldine van Bueren in The International Law on the Rights of the Child, (Dordrecht: Martinus Nijhoff Publishers, 1995)

M. Freeman, The moral status of children: Essays on the Rights of the Child, (The Hague: Kluwer Law International, 1997)

M. Jones and L.A Basser Marks, “United Nations Convention on the Rights of the Child” a blueprint for Australia’s children,” in M. Jones and L.A Basser Marks (eds.) Children on the Agenda: the rights of Australia’s children (Chippendale, NSW: Prospect Media Pty Ltd, 2001)

J. Tobin, “The Development of Children’s Rights”, Chapter 2 in Children and the Law in Australia (2^nd Edition) (eds. L. Young, M.A. Kenny, G. Monahan) (Sydney: LexisNexis, 2017)

Division: Division 2 Family Law

Number of paragraphs: 123

Date of last submission/s: 24 May 2024

Date of hearing: 24 May 2024

Counsel for the Applicant Mr Longworth

Solicitor for the Applicant Doumit Family Lawyers

Counsel for the Respondent Ms Cantrall

Solicitor for the Respondent ATW Family Law

ORDERS

SYC 5418 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RADECKI

Applicant

AND:
MS RADECKI

Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

27 JUNE 2024

THE COURT ORDERS THAT:
1.The Father’s Application, filed 26 July 2023, be dismissed.
2.Absent any Application being filed by either party within 14 days, each party shall pay their own costs pursuant to section 117(1) of the Family Law Act 1975 (Cth).

AND THE COURT NOTES THAT:
A.In the light of (a) the parents having equal shared parental responsibility, and the terms of Order 2f made in December 2015, and (b) the parties’ long history of reaching agreement to make provision for the child to spend extra time with his Father, the parties should consider arranging, perhaps every 3 months or as otherwise agreed, a mediated co-parenting meeting to determine any specific, alternative the parenting arrangements for the child.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
A. Introduction

The current Application seeks to overcome the jurisprudential hurdle, long known as the principle or “rule” in Rice & Asplund.[1] This principle has now been “codified”, in a manner of speaking, but likely not simplified, by the recent enactment of the deceptively smooth-sounding but otherwise statutorily lugubrious s.65DAAA of the Family Law Act 1975 (Cth) (“the Act”). The enactment perhaps gives rise to a more basic question about how judicial discretion can or might be fettered or proscribed. Further, subject to any detailed ruling from the Full Court to the contrary, the new section must now be viewed through the long jurisprudential history and lens of the myriad of Full Court decisions that have interpreted and applied Rice & Asplund since 1978. The cycle, and pursuit, of the parenting and judicial “holy grail”, which comprises at least certainty, predictability, and inexpensive litigation, continues. Respectfully and regrettably, just as the case law since 1978 shows all too clearly, the recent statutory refinement of this “rule” or principle will likely only lead to the same, ongoing imbroglio of facts and the exercise of discretion, followed by appeals that seek to bring greater certainty and clarity which the Parliament has sought to effect in the new section, that necessarily accompanies all family law litigation.
[1] Rice & Asplund (1978) 6 Fam LR 570.
Factually, the Applicant Father seeks to have the Court re-visit Orders that were made, curiously in his absence (discussed below), on 3^rd December 2015 regarding the parenting arrangements for X, who was 2 years old at the time the Orders were made. He is now 11 years old.
In answer to the obvious question “why was the Application not brought earlier”, the Father basically submitted that he and the Mother had generally and informally been able to “work out”, to the Father’s general satisfaction, suitable or satisfactory “time-with” arrangements between Father and son. The Mother says that little if anything has changed since the original Orders were made in 2015 regarding the difficulties with the Father and making arrangements for him to spend time with X. She seeks that the Father’s Application be dismissed and the existing Orders continue.
In Applications such as is currently before the Court, there will invariably be the obvious reality that parents and children have gotten older since the Orders now sought to be re-visited were first made. In my view, this basic and unalterable fact of life, of itself and without more, is insufficient to warrant another round of litigation and for the matter to be re-opened. Put another way, a litigant cannot simply point to someone, especially the child, getting older as a sufficient basis to re-visit Orders previously made. Courts may reasonably assume that when Orders were made, there was some appreciation by all concerned that life would move on and persons (including the child or children) would likewise get older and undertake the usual stages – physical, emotional, educational stages of growth. There is nothing novel or startling about such basic propositions.
Accepting, as the Father says, that over the years the parents have been able “to work things out”, it is concerning and unhelpful that the Father did not bring his Application much earlier than he has. “Delay”, of itself, is not a ground for refusing the current Application, but the combined circumstances here, in my view, are insufficient to accede to the Father’s Application. It must be dismissed.
I should note one matter at the outset, which does not impact upon the Court’s consideration or the result of the Application. The Father’s Chronology that is attached to his Case Outline (at pp.2-9) records that between August 2023 and the current hearing in May 2023, there were seven (7) Court events, the overwhelming majority of which were before a Registrar of one kind or another. In my view, this was the complete antithesis of proper trial or Application management. Respectfully, in the circumstances here, there seems to be a certain flexibility regarding ensuring that the “over-arching purpose” has been complied with. Put another way, the jurisprudential principle, articulated now quite some time ago by the High Court in AON Risk Services Australia Limited v Australian National University that Courts should make decisions and conduct matters in the most timely, efficient, cost-effective and prudential manner, as well as having regard to the impact of delay in other litigants and the use of scarce public resources, seems, perhaps, not always to have been “front of mind” here.[2] It follows that multiple hearings of one kind or another is, respectfully, not a good advertisement for “registrar-led” Court and case-management systems. Of course, Judges can be dilatory and subject to all the usual human vicissitudes and vagaries of life and litigation, and similarly a “docket system” is no panacea to all case management ills. However, at least such a system makes the ultimate decision-maker responsible and accountable for the management of matters before that Judge, rather than have matters conducted before various and multiple registrars who are often if not usually over-run with matters from across the Court.
[2] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
For the discussion that follows, it is important to note the terms of the new statutory reference point, s.65DAAA, which provides as follows:
65DAAA Reconsideration of final parenting orders
(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a) the reasons for the final parenting order and the material on which it was based;
(b) whether there is any material available that was not available to the court that made the final parenting order;
(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
B. Applicant’s Orders sought
The Applicant’s Orders sought were contained in his Application for Final Orders filed on 26^thJuly 2023. They were as follows (emphasis in original):
1.That Orders 2, 3, 4, 5, made on 3 December 2015 be discharged .
2.That the child [X], born [in] 2013 spend time with the father during the school term as follows:
2.1   In Week 1, from afterschool Wednesday until before school Friday, commencing on the first Wednesday after the date of these orders; and
2.2   In Week 2, from afterschool Friday until before school Monday.
3.That [X] spend time with the father during all school holidays as follows:
3.1In even numbered years , during the first half of all school holidays; and
3.2.In odd numbered years, during the second half of the school holidays.
4.For the purpose of school holidays:
4.1School holidays commence at the conclusion of school on the last day of the school term until
the commencement of school on the first day of the new school term.
4.2The first half means at the conclusion of school on the last day of the school term until 8pm on the day that falls midpoint of the school holiday period ;
4.3The second half means from 8pm on the day that falls on the midpoint of the school holidays until the commencement of school on the first day of the new school term ;
4.4Unless changeover is occurring at school, then the Father shall collect the child from the mother's residence at the commencement of time and the mother shall collect the child from the father's residence at the conclusion of time.
5.Notwithstanding any other order herein, that [X] shall spend time with the Mother and Father as follows:
5.1In the event that [X] is not already in the Father's care, that [X] shall spend time with the Father on Father's Day, from 8pm Saturday until 8pm Sunday.
5.2In the event that [X] is not already in the Mother 's care , that [X] shall spend time with the Mother on Mother's Day , from 8pm Saturday until 8pm Sunday .
5.3For the purpose of [X]'s birthday:
5.3.1In the event that [X] is already in the Father's care , that such time shall be suspended so that [X] shall spend time with the mother from 2pm until 8pm ;
5.3.2. In the event that [X] is already in the Mother's care , that such time shall be suspended so that [X] shall spend time with Father from 2pm until 8pm .
5.4For the purpose of Christmas:
5.4.1In the event that [X] is not already in the father's care, from 12pm Christmas Day (25 December) until 5pm Boxing Day (26 December);
5.4.2.In the event that [X] is not already in the mother's care, from 12pm Christmas Day (25 December) until 5pm Boxing Day (26 December).
5.5 For the purpose of [Country B] Christmas on 7 January in each year:
5.5.1.In the event that [X] is not already in the Father's care, from 10am until 2pm; and
5.5.2.In the event that [X] is not already in the Mother's care, from 10am until 2pm.
5.6.For the purpose of the Father's birthday, that [X] shall spend time with the father for a period of 4 hours as agreed but failing agreement, from 4pm until 8pm;
5.7.For the purpose of the Mother's birthday, that [X] shall spend time with the mother for a period of 4 hours as agreed but failing agreement, from 4pm until 8pm.
6.For all changeover, unless otherwise provided herein, the following shall apply:
6.1During school term, the father shall collect and return the child to and from school.
6.2In the event of a non-school day, or whereby time occurs outside of school hours:
6.2.1.The Father shall collect [X] from the mother at the commencement of his time with [X] and the mother shall collect [X] from the Father's residence at the conclusion of such time:
6.2.2.That the mother shall collect [X] from the Father's residence at the commencement of her time with [X].
7.That for the purpose of telephone and/or Facetime communication with [X], each parent is at liberty to contact the child on his mobile phone or device between the period of 7pm and 7.30pm on the days that [X] is not in his or her care. For such purposes, [X] is to be given privacy when communicating with the other parent.
8.That within 24 hours of the date of these orders, the mother is hereby ordered and directed to forthwith authorise (in writing) [X's] [sports] club and any other extra curricular activity organisation that [X] participates in to provide the Father with any information requested relevant to [X] and keep him informed of all training sessions and games or any other relevant information.
9.That the father is at liberty to attend [X's] training sessions and games or otherwise any extra curricular activity that he is registered to participate in.
10.That within 7 days of the date of these orders, the mother is to do all things necessary to purchase a bed for [X] to ensure that he sleeps independently.
11.That the mother pay the father's costs of and incidental to these proceedings on an indemnity basis.
C.       Applicant’s Case Outline
The Annexure to the Father’s Case Outline, filed 22^nd May 2024, provides a helpful outline of facts and legal principle. That Annexure is set out below:[3]
[3] See Case Outline at pages 10-18.
Brief Background
1.These are proceedings in relation to the parenting arrangements for the child of the marriage, [X] born [in] 2013, presently 11 years [of age]. [X] is in year 5 at [D School].
2.The parties commenced their relationship in 2011, married [in] 2012 and separated in early February 2014. They are not yet divorced. As at the date of separation [X] was [12] months old.
3.On 7 February 2014 the Mother filed an Initiating Application in the Federal Circuit Court of Australia. Those proceedings were concluded when Final Orders were made on 3 December 2015 (“the 2015 Orders”) when [X] was 2 years of age.
4.The 2015 Orders provided, in essence, for [X] to live with the Mother and spend time with the Father for a maximum of 1 night per week.
5.It is common ground that 2015 Orders were made following a short, undefended hearing before Judge Sexton, where the Father did not appear. To that, whilst court proceedings were initiated, there was no ‘litigation’ as such, no hearing on the merits, no expert evidence and no issues were ever explored before the Court.
6.There is an issue as to whether the precise form of Orders contained in the 2015 Orders were ever served upon the Father.
7.The Father asserts he was unaware of the proceedings, or the prospect of Final Orders being made. The Father asserts he only became aware of the 2015 Orders when handed them by the Mother.
Legal Principles
8.        Recent amendments to the Family Law Act 1975 (Cth)(“Act”) have resulted in the passing of a new s 65DAAA, which has to some extent codified the principles of Rice v Asplund.
65DAAA Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
9.Accordingly, before the Court can reconsider the 2015 Orders, 2 conditions must be satisfied being:
a)The Court must “consider” (not make a finding) whether there has been a significant change of circumstances since the 2015 Orders; and
b)The Court must be satisfied that in all the circumstances, it is in [X's] best interests for the 2015 Orders to be reconsidered.
10.As noted, there is no requirement the Court make a positive finding of a significant change of circumstances. The only requirement upon the Court is to consider whether there has been such a change.
11.It is also noted that for the purposes of s.65DAAA(1)(b), the relevant satisfaction is informed by a non-exclusive list of factors in s.65DAAA(2).
12.As is apparent from the 2nd Reading Speech and the Explanatory Memorandum1, the new s.65DAAA is intended to codify the common law rule established by Rice v Asplund and elaborated on in subsequent cases.
13.Accordingly, s 65DAAA does not render any well-established principles enunciated in the cases applying Rice v Asplund of no relevance or utility. It is therefore contended that such cases, to the extent that they are consistent with s 65DAAA, continue to have application.
14.In Baisman & Cartmill [2022] FedCFamC1A 36, Tree J summarises from a number of Full Court cases the relevant principles of the rule in Rice & Asplund:
11.The so-called rule in Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725 (Rice & Asplund) is based on the notion that it will only be in a child’s best interests to expose them to further litigation if there has been a significant change in circumstances since the previous parenting orders were made. The rule has now been considered by a number of Full Courts, although it may fairly be said that the application and operation of the rule remains somewhat opaque. An analysis of those cases, demonstrates that the following relevant principles may either be drawn directly from them, or otherwise logically arise:
(a)The rule is but one manifestation of the best interests principle;
(b)However best interests are not the only consideration relevant to the application of the rule, with other considerations including public policy issues such as the finality of litigation, and practical matters, such as the stage of the litigation at which the rule is being considered and the nature of issues involved in the several pieces of litigation;
(c)The rule requires there to be a sufficient change of circumstances to justify the re-litigation;
(d)The rule can be applied at any stage of the proceedings;
(e)The effect of the operation of the rule will vary depending upon the time of its application, or more precisely the stage of the litigation when the rule is being applied;
(f)If the rule is considered prior to trial, it may be invoked by way of an application for summary dismissal (in which case the court is likely to proceed on the basis of taking the applicant’s case at its highest and not permitting cross-examination) or alternatively may be dealt with by way of preliminary issue (in which case cross-examination may be permitted and findings of fact made);
(g)If the rule is raised and considered at trial, most of the evils which the rule is intended to overcome or ameliorate will have already ensued. In considering whether it may be appropriate for the application of the rule to be determined as a preliminary point at trial, factors which may influence that decision will include the dislocation of the trial process if there is a reserved judgment, and the additional delay involved. Converse considerations may be the cost to the parties of any trial if indeed the rule’s application at the end of the trial sees re-litigation impermissible;
(h)The rule may also be dealt with at trial by way of something akin to a no case submission, but similar considerations to the determination of the matter as a preliminary issue at trial would again arise;
(i)Logically, the extent of revisitation of prior orders sought by an applicant will be relevant in determining the likely impact of any re-litigation on the child. Arguably, if only a small variation of prior orders is sought, the impact on the child is likely to be less;
(j)Likewise, the court may only permit re-litigation on one or some of the issues sought to be re-agitated by the applicant, if doing so is in the child’s best interests, or conversely, a wider scope of re-litigation is not in the child’s best interests;
(k)Logically, it must be relevant whether or not the prior orders were made by consent, or at the end of a trial, or consequent upon an undefended hearing, and in any case, also relevant will be the circumstances by which the orders came to be made (eg if they were made at an early stage of the proceedings or after lengthy litigation);
(l)The parties will be bound by any findings of fact actually or implicitly made in prior orders, at least to the extent that they were necessarily made to quell the controversy;
(m)It will be a matter for the trial judge as to whether under s 69ZQ of the Family Law Act 1975 (Cth) (“the Act”), evidence should be restricted only to matters post-dating the last orders, or alternatively, if leave to re-litigate is given, it might be conditional upon a limitation of issues or temporal scope of evidence;
(n)Irrespective of the stage the litigation is at when the rule is considered, the determination remains merits based and is not a technical one.
15.Other Full Court authorities of note include Miller & Harrington (2008) FLC 93-383; Marsden v Winch [2013] 50 Fam LR 409; Searson & Searson [2017] FamCAFC 119; (2017) FLC 93-788; Shan & Prasad [2020] FamCAFC 189; (2020) 61 Fam LR 440; Stern v Colli [2022] FedCFamC1A 95.
16.The Full Court in Marsden & Winch (supra) at [50] set out a three step test when evaluating a Rice v Asplund threshold question:
(i)Consideration of the “past circumstances, including the reasons for the decision and the evidence upon which it was based”;
(ii)Consideration of “whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.”
(iii)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.
Brief Contentions
The 2014/2015 proceedings
18.It is pertinent to reflect upon understand some of the context surrounding the making of the 2015 Orders.
19.In her Initiating Application the Mother sought a mere 3 final orders:
a)        sole parental responsibility for [X]
b)        [X] live with the Mother
c)        leave to amend her application upon release of a Family Report
20.The Mother did not amend her Initiating Application throughout the proceedings. As such, the Mother never particularlised, with any precision, what final orders she had sought for [X] to spend time with the Father. The Father was therefore without formal notice of the precise orders that were ultimately made by the Court, as set out in the 2015 Orders.
21.The only social science evidence gathered in the 2014/15 proceedings was a Court based Child Dispute Conference Memorandum by [Ms E]. The Memorandum is, respectfully, a document of limited scope, running for a mere 1½ pages in length. The main issue in dispute was whether the Father’s overnight time with [X] should commence immediately, or later. The Memorandum highlights the mother “is not opposed to the commencement of overnight time with the father in the future.”
22.During the 2014/2015 period, the parties were in an on and off again relationship, and at times, were attending counselling, and attempting to reconcile. This was acknowledged on 13 October 2014 when the Mother’s solicitor informed the Court (during a Directions Hearing):
[MS J]: The parties, on the last occasion, wished to do one-on-one counselling and then move to joint counselling. As you might recall, it was a fairly recent separation at that time. There was a question about reconciliation. I’m instructed that continued to be explored by the parties. They then both commenced their one-on- one counselling. My client has completed hers, and I understand the father has. They’ve got an appointment booked for the start of joint counselling. So we would like a short adjournment
23.[In early] 2014 the Father became self-represented. He did so because he and the Mother were cooperatively co-parenting well at the time, and he wanted to allow the parenting matter to run its course. The parties were living together in a family unit (with [X]) and had a good co-parenting relationship. They went out together for lunches, took [X] to the park, went on outings together and interstate holidays.
24.Around this time the parties had a conversation and agreed to end the Court proceedings. The Mother said to the Father, in one conversation: “I have told the Judge that we are all good and things are working fine, so we don’t need anymore Court proceedings”.
25.The Father relied upon the Mother’s representation that the proceedings had come to an end, and that he did not need to take any further part in the proceedings. Up until then, the Father had actively engaged in the proceedings, through the filing of documents, engagement with lawyers etc.
26.After the Father became self-represented, he did not have formal notice of the ongoing Court proceedings. He was not served with the Orders made by Judge Sexton (including the orders of 2 February 2015, 2 July 2015 or 3 December 2015), which had purportedly been posted to the Father by the Court. This was, in part, because the Father had moved residential addresses around the time when these orders were being made. The Father denies ever receiving any mail from the Court or the Mother’s solicitor informing him about the proceedings. In addition, the Mother’s solicitor informed the Court on 3 December 2015 that the Father did not have access to email. See the extracted transcript below:
[MS J]: I haven’t heard anything, your Honour. You might recall that the father has no email access. So I can only communicate with him via post.
27.Critically, the 2015 Orders as made differ from the form of Order which the Mother asserts was served upon the Father. In particular, the Mother deposes that:
•By letter of 12 June 2015 the Mother, through her lawyers, sent to the Father a letter and enclosed draft Amended Application setting out the final orders she proposed.
•The 2015 Orders were in accordance with the proposal she had served.
28.Whilst the Mother’s draft proposal as served in June 2015 bears similarities to the 2015 Orders, it also different in some material respects.
29.Whilst Judge Sexton had the jurisdiction and power to make the 2015 Orders, they were nonetheless made on an undefended basis, in circumstances where the Father asserts he did not have notice (or even constructive notice) of the proceedings still being ongoing and the Orders as made differed from those apparently served. Whilst a criticism of the Father could be that he should have taken further steps to confirm the veracity of the Mother’s representation(s), any such criticism belies the fact that he didn’t, and was wholly reliant upon the Mother’s representation(s).
30.The Father asserts that notwithstanding, and despite, their separation, the parties continued to live together and resumed spending time together as a family from around May or June 2014 for several years on and off14. The Mother is silent on this in her evidence however were this the case, any interim parenting orders would be of limited utility (because the Father was still seeing and caring for [X] on a daily basis).
31.What is clear from the 2014/15 proceedings and 2015 Orders is that the Father was not, and could not have been found to be an unacceptable risk to [X]. If the Father were an unacceptable risk, it is reasonable to infer that the Mother would have agitated for some form of risk mitigation measures, such as a supervised time regime, or no time orders. Far from that, on different occasions Judge Sexton was informed that the relationship between the parties was “quite good given the circumstances” and that the parties had a “… very good relationship”.
32.The absence of any asserted risk raises the legitimate question about whether or not the 2015 Orders (providing for a 1 night per week regime) remain in [X's] best interests by reason of them precluding [X] from having the benefit of a meaningful relationship with his Father, and the Father’s extended family.
Parenting arrangements following the 2015 Orders
33.The Father asserts that for several years leading up to September 2022, [X] was spending time with him in excess of what was prescribed by the 2015 Orders.17 The Father was also permitted to attend [X's] sporting activities and training sessions,18 his attendance at which fostered the parent / child relationship.
34.The Father asserts that in September 2022, the Mother ended this cordial arrangement, and threatened to call the Police if the Father attended [X's] sporting events19. Respectfully, there is no rational basis for the Father to be denied an ability to attend such sporting events.
35.Notation B to the 2015 Orders states the following:
That it is intended by the Mother that these Orders will be reviewed by the parties no less than three months prior to [X] commencing school and that the mother proposes that the parties attend mediation in order to discuss further Orders.
36.It would be inferred that the 2015 Orders taken as a whole, Notation B would have provided a degree of comfort to the Court in circumstances where permanent orders were to be made for such a young child. Further, as the Orders were drafted solely by the Mother and made ex parte, the Court both then and now would infer that the Mother’s expressed intention that the Orders be reviewed was both sincere and genuine.
37.Notation B would also be read and understood in the context of a letter authored by the Mother’s solicitors dated 6 February 2015 in which the following passage appears20:
We note that the Orders provide for a gradual increase in time between you and [X] until he is five years of age. At that time, the Orders continue in place although our client notes that the Orders may need to be reviewed given [X]’s age and the likelihood he will be at school.
38.Also of note is that at the undefended hearing before Judge Sexton on 3 December 2015, the following discussion took place between the Mother and Judge Sexton, in relation to what is to happen when [X] starts school
HER HONOUR: It’s just that you have got some slight difference about what happens when he goes to school. Is that what you are thinking? That you will work that out when he gets to school. Is that what you’re thinking?
[MS RADECKI]: I think it’s much better that we work it out when he gets to school. Yes. We have a very good relationship. So we can kind of work around
39.[X] commenced school in 2019. Notwithstanding this, the 2015 Orders have not been amended, and the Mother has not proffered any formal proposal which would see [X] spend more time with the Father pursuant to 2015 Orders. This of itself a significant circumstance.
40.Based on the foregoing, it is patently clear that the 2015 Orders were not intended to provide comprehensive parenting arrangements for the remainder of [X's] childhood. As is not uncommon, the Orders prescribed what is to happen during [X's] early years, with scope to vary such arrangements when he is older and his needs are different.
41.In Ortega & Collier [2023] FedCFamC1F 958 (14 November 2023), Altobelli J had cause to consider a fresh parenting application for an almost 4 year old child when final orders had been made when the child was only 15 months old. Whilst the major reason for a change in circumstances was the Father’s relocation to live closer to the child, the passage of time, one of the factors for consideration was the now “older child”.
“The child was only one year old at the time of the substantive hearing. Now that the child is approaching four years old, there is scope to prognosticate further into the future. It is clear from the reasons for judgment, as well as the family report which was before the Court, that the child’s tender years was the substantive influencing factor. It is hard to escape the impression that a review of these orders may well have been inevitable in the not-too-distant future based on the child’s developmental changes alone.”
42.On 26 July 2023 the Father filed an Initiating Application (“the Father’s Application”) commencing the current proceedings. The first return date was 31 August 2023.
43.In September 2023, less than a month after the said first return date, the Mother resumed allowing X to spend time with the Father generally consistent with the 215 Orders. Even then the Mother did not fully comply with the 2015 Orders in that she failed to conform with the changeover arrangements.
44.The Father’s Application seeks parenting arrangements which expand upon those in the 2015 Orders.
45.On 31 August 2023 the Mother filed a Response (“the Mother’s Response”) seeking the Father’s Application be dismissed based upon the principles espoused in Rice & Asplund [1979] FLC 90-725 (“Rice v Asplund”).
Step 2: Likelihood of Variation
46.The Mother does not seek a variation to the 2015 Orders. In doing so, she impliedly accepts that the Father does not pose a risk of harm to [X]. If the Mother did consider [X] to be at risk in the Father’s care, it is reasonable to infer that she would have either brought her own application to vary the 2015 Orders, or joined in with the Father seek a variation to the 2015 Orders by reason of a change in circumstance.
47.In light of the absence of objective risk, and in circumstances where the Court is dealing with parenting arrangements for an 11 year old child with no health or behavioural issues, there is a very high probability that the Court will find that the 2015 Orders are not in [X's] best interests because they do not provide for sufficient time for [X] to spend with the Father, with the consequential flow on to the paternal family.
48.This results in [X] being denied the benefit of reaching his full potential within the confines of a limited spend time with arrangement. Exemplifying this is the obvious difficulty that [X] cannot go away on holidays with the Father, or do any activity which results in [X] spending more than 1 overnight with the Father. The most recent example of this type of constraint occurred in [late] 2023 when the Father and paternal family booked a holiday to [Town C], which [X]could not attend (the Mother refused to consent to his attendance).
Step 3: Magnitude of Variation
49.The Father’s proposed variation to the 2015 Orders are not insignificant or trivial. If granted, the variation which result in significant changes for [X] from what are currently very limited spend time with arrangements.
50.In addition, the Father’s proposed variation will seek to cure some of the gaps that exist within the 2015 Orders in circumstances where the 2015 Orders were not anywhere near as comprehensive as standard parenting orders are.
51.The table below sets out, in summary form, the proposed variations as compared with the existing 2015 Orders. On any objective view, this table provides clear evidence of magnitude of the changes being so great as to warrant any potential adverse effects which further litigation may pose (which includes potential detriment to the child caused by the litigation).

2015 Orders Proposed 2024 Orders

School Terms 2 nights per fortnight 5 nights per fortnight

School Holidays 2015 Orders do not cater for this ½ of the school holidays

Christmas 2015 Orders do not cater for this Alternative Christmas Day

Country B Christmas Only in 2015 but not thereafter Each year

Father’s Birthday 2015 Orders do not cater for this 4 hours, to occur each year

Mother’s Birthday 2015 Orders do not cater for this 4 hours, to occur each year

Telephone / Facetime Contact No time specified obligation, including the time and duration of a call Specific time (7pm – 7:30pm) each day

Attendance at Extra Curricular 2015 Orders do not cater for this Father may attend extra-curricular activities

D. Respondent’s Orders sought

The Respondent’s Orders sought were contained in her Response to Final Orders filed on 30^th August 2023. They were as follows (emphasis in original):
1.That the father’s Application is dismissed on the basis that there has been no significant change of circumstances as required by the principle set out in Rice v Asplund [1978] FamCAFC 128.
2.That the father pay the Mother’s costs of and incidental to this Response to the Application for Final Orders
3.In the event that the Court determines that there has been a significant change pursuant to the principle set out in Rice & Asplund, the mother be granted leave to amend her application.
E. Respondent’s Case Outline
Annexure A to the Mother’s Case Outline, filed 23^rd May 2024, was in the following terms:[4]
[4] Se Case Outline at pp.3-7.
NATURE OF PROCEEDINGS
1.These proceedings follow the father’s filing of an Initiating Application on 26 July 2023 whereby he seeks to vary final parenting orders made by Judge Sexton on an undefended basis on 3 December 2015 (“the final parenting orders’).
2.The final parenting orders relate to the one child of the parties relationship, [X] born [in] 2013 and 11 years of age.
3.        The final parenting orders in essence provide for:
3.1.     The parties to have equal shared parental responsibility;
3.2.      [X] to live with the mother;
3.3.      [X] to spend time with the father:
3.3.1.In week 1, from 7pm Friday to 7pm Saturday; and
3.3.2.In week 2, from 1pm to 7pm Saturday; and
3.3.3.During school holiday periods, at times as agreed between the parties but failing agreement in accordance with the school term time; and
3.3.4.At any other time as agreed between the parties.
Variation of the final parenting orders as sought by the Applicant father:
4.Should the father be successful in establishing a significant change of circumstances for which it would be in the best interests of [X] for the final parenting orders to be reconsidered, then, he seeks orders that in essence see:
4.1.     The father spend half of all school holidays with [X]; and
4.2.     The father spend five (5) nights a fortnight with [X].
Minute of orders sought by the Respondent mother
5.        The mother seeks orders that see:
5.1.The father’s Application be dismissed on the basis that there has been no significant change of circumstances as required by section 65DAAA.
5.2.That the father pay the mother’s costs of and incidental to her Response to the father’s Application.
6.In any event, the mother contends that the orders sought by her are in [X's] best interests – such bets interests being, as required by section 60CA of the Family Law Act 1975, the paramount consideration the Court must have regard to when deciding whether to make a particular parenting order.
OUTLINE OF ARGUMENT ON BEHALF OF THE RESPONDENT MOTHER
7.It is the mother’s position that there exists no significant change of circumstances since the making of the final parenting orders for which it would be in [X's] best interests for the final parenting orders to be reconsidered. The legislative pathway is as follows (emphasis added):
65DAAA Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
8.‘The essential question to be asked is … are the “new events” sufficient to provoke a new enquiry (see also Miller & Harrington (2008) FLC 93-383 at [105], noting that an alternative formulation of the question has been propounded by the Full Court in Marsden v Winch (2009) 42 Fam LR 1 at [58] with the emphasis on the establishment of a prima facie case of change of circumstances). In Elmi & Munro (2019) FLC 93-912 at [38], and as has been said many times:
The essence of the issue to be determined is whether there has been a material change in circumstances which indicate that it would be in the best interests of the child for there to be reconsideration of the parenting orders.
9.The mother contends that no purported “changes in circumstances”, as suggested by the father, meet this test.
10.From the outset, it is necessary to recognise that the rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle.2 Such is now made apparent in the legislation.
11.The father’s Affidavit filed 13 May 2024 initially addresses the circumstances in which the matter ran undefended in 2015. The mother contends that this unique aspect of the matter is to have no weight in determining whether the Court shall reconsider the final parenting orders. Should the father be of the view that he was not awarded procedural fairness a near ten years ago, then, the father could have brought an application in respect of such then.
12.In any event, the father makes clear in his Affidavit filed 13 May 2024 at [35] that he did not concern himself with filing an application, whereby until 2022, he was content with the operation and flexibility of the final parenting orders. The final parenting orders allow for [X] to spend time with the father ‘at any other time as may be agreed between the parties’. The mother therefore contends that the father cannot suggest that there had been any significant change of circumstances prior to September 2022 that would warrant reconsidering the final parenting orders, nor can the father suggest that the mother reducing the amount of purported additional time (time pursuant to 2f of the final orders) in which the father was spending with [X] is a significant change in circumstances, where, such is provided for by the final orders.
13.It is the mother’s understanding that the father must then consider the period between September 2022 until September 2023. as the significant change in circumstances that warrants the reopening of this parenting dispute. The mother accepts that during this period, the final parenting orders were not specifically complied with. Yet, the mother contends that the evidence will undoubtedly make apparent that such was in consequence of the father’s own conduct and behaviour. Ordinarily, the mother would have thought that a contravention application would be appropriate if it was in fact the case that the mother was at fault for the final parenting orders not being complied with. Instead, the father brought an application to reconsider the final parenting orders as he claims that they are merely ‘not working’. The mother contends that such an explanation does not uphold the test provided for by section 65DAAA.
14. In any event, the final orders have been complied with since October 2023, final orders that were made to support [X's] best interests and continue to do so, as contended by the mother.
15.The mother maintains that despite the father’s uncertain living arrangement, his tumultuous relationship with his parents and his work schedules, the mother has always attempted to be flexible and use her best endeavours to ensure that [X] spends time with the father in accordance with the final parenting orders.
16.It is plain that the ‘rule in Rice and Asplund rests upon the indisputable proposition that continuous litigation about the living arrangements of children is inimical to their welfare and contrary to their best interests (Langmeil & Grange [2021] FamCAFC 31).’ It is the mother’s position that there have been no significant changes in circumstance since the making of the final parenting orders for which it would be in [X's] best interests for the final parenting orders to be reconsidered.
17.In light of the new amendments, it is respectfully submitted that should the Court fail to dismiss the father’s application, then, this Court likely opens to doors to many other unwarranted applications seeking to reconsider final parenting orders. The Court ought to recognise that varying final parenting orders is a serious step whereby in almost all cases is contrary to the child’s best interests.
F.        Documents Relied upon by the Parties
The parties jointly provided Chambers with a list of documents relied upon for the purposes of the hearing via email on 19 May 2024. This list is set out herein as follows:
Documents relied upon by the Applicant
1.The Applicant relies upon the following documents from the Applicant’s 1^st Tender Bundle of material (not being related to the 2014/15 litigation)
Photographs
1.        Photographs of the child and the Father (p 2-25)
2.Photographs between Paternal Aunt and the Mother as referred to in paragraph 7 of the Affidavit of [Ms Radecki]. (p. 26 – 27)
3.Photographs of Paternal Aunt, Father, and child. (p.28 – 32)
4.Photographs of Paternal Aunt, Father and child as referred in paragraph 13 of the Affidavit of [Ms Radecki]. (p. 33 – 40)
5.Photographs of paternal family gatherings as referred to in paragraph 30 of the Affidavit of [Ms Radecki]. (p. 41)
6.Photographs of child and the Father participating in activities as referred to in paragraph 31 of the Affidavit of [Ms Radecki]. (p. 42 – 46)
7.Photographs of the child and Paternal family members attending activities as referred to in paragraph 33 of the Affidavit of [Ms Radecki]. (p. 47 – 50)
8.Photographs of the child as referred to in paragraph 37 of the Affidavit of [Ms Radecki]. (p. 51 – 52)
9.        Photograph of the child’s bedroom at the Father’s residence. (p. 53)
Videos
10.      Video recording at [F Venue] in 2018.
11.      Video recording at [G Venue] in 2019.
12.      Video recording outside camping in 2019.
13.      Video recording of child and Paternal family members in 2023.
14.      Video recording of special occasion in 2023.
15.Video recording of wedding [in] 2023 as referred to in paragraph 69 of the Affidavit of [Mr Radecki].
16.Video recording taken [in late] 2023 as referred to at paragraph 76 of the Affidavit of [Mr Radecki].
17.Video recording during [holiday] in [late] 2023 as referred to in paragraph 76 of the Affidavit of [Mr Radecki].
2.        The Applicant relies upon the following documents from the Applicant’s 2^nd Tender Bundle related to being the 2014/15 litigation
Orders and Child Inclusive Memorandum to court
1.Child Inclusive Memorandum to court dated 10 March 2024 (p. 28 – 30)
2014 Transcripts of Proceedings
2.Transcript of Proceedings on 13 October 2014. (p. 133 – 136)
3.Transcript of Proceedings on 2 February 2015. (p. 137 – 140)
4.Transcript of Proceedings on 2 July 2015. (p. 141 – 150)
5.Transcript of Proceedings on 3 December 2015. (p. 151 – 154)
3.The Applicant relies upon the following documents from the Respondent’s Tender Bundle
NSW Police Records
1.Entry in early 2016 as to the Respondent having invited the Applicant to live with her. (p. 117)
2.Entry in mid-2016 as to the Respondent occasionally allowing the Applicant to stay with her. (p. 119)
Documents relied upon by the Respondent
1.The Respondent relies upon the following documents from the Respondent’s Possible Tender Bundle Documents
Previous Proceeding SYC658/2014 Correspondence
1.Letter from ATW to Applicant Father 16 June 2016 (p. 16 – 20)
Correspondence re father’s allegations of blocking time and telephone communication
2.Letter from DFL to Respondent Mother 15 May 2023 (p. 21 – 22)
3.Letter from ATW to DFL 2 June 2023 (p. 23)
4.Letter from ATW to DFL 2 June 2023 (p. 26 – 27)
5.Letter from DFL to ATW 16 June 2023 (p. 28 – 29)
Voicemail from father to mother
6.Voicemail recording in mid-2023
7.Transcript of Voicemail Recording mid-2023 (p. 71)
Text Messages between Mother and Paternal Grandmother
8.Text Messages between Mother and Paternal Grandmother (Country B) Dated early 2016 (p. 72 – 73)
9.Translation of Text Messages between Mother and Paternal grandmother (English) dated early 2016 (p. 74)
Documents Produced Under Subpoena
10.Packet 1 & 2: NSW Police
11.Event Ref … (p. 103)
12.Event Ref … (p. 103 – 104)
13.Event Ref … (p. 104 – 105)
14.Event Ref … (p. 106 – 107)
15.Event Ref … (p. 108 – 109)
16.Event Ref … (p. 110 – 111)
17.Event Ref … (p. 112 – 113)
18.Event Ref … (p. 113)
19.Event Ref … (p. 113 – 114)
20.Event Ref … (p. 114)
21.Event Ref … (p. 115)
22.Event Ref … (p. 116)
23.Event Ref … (p. 117 – 119)
24.Event Ref … (p. 119 – 120)
25.Event Ref … (128)
2.The Respondent relies upon the following documents from the Respondent’s Possible Supplementary Tender Bundle Documents
Text Messages between Mother and Paternal Grandmother
1.Text Messages between Mother and Paternal Grandmother (Country B) Dated late 2017 (p. 2)
2.Translation of Text Messages between Mother and Paternal grandmother (English) dated late 2017 (p. 3)
G.       Oral submissions on behalf of the Applicant
The Applicant’s oral submissions may be summarised as follows.
At the outset of his submissions, Counsel for the Father stated:[5]
MR LONGWORTH:   One of the things that is – for your Honour to consider under the new 65 DAAA, still incorporates, in my submission, authorities and allows your Honour to pick up what the four courts [sic: “Full Court”] have said before. It is of relevance, and I think this is the decision referred to in our case outline, how the orders were made. And the orders were clearly made on an undefended basis. There is a live issue, which your Honour won’t really be able to determine, as to the notice that my client had of those, but it will be ultimately contended by my client that he was not on notice of the orders.
HIS HONOUR:   But can I – obviously, I’ve already interrupted, but can I just ask this question? With orders having been made so long ago, and no application having been brought until last year, so what?
MR LONGWORTH:   Because we’re in new territory with this legislation, and I need to be careful that there’s no bridge we don’t cross…
[5] T 3
Next, he responded and commented:[6]
HIS HONOUR:   So that whatever the circumstances and accepting for the purposes of this discussion, that the father says, well I didn’t know about the orders. I wasn’t there for a range of reasons when they were made, and I, you know, when I finally found out about the orders, they were a bit different to this or whatever. But still, the court is faced with the reality that a very significant period of time by any reckoning has gone by, before the father brought an application. That’s really all I’m seeking to say.
MR LONGWORTH:   In answer to your Honour’s comment that we all get older ‑ ‑ ‑
…
MR LONGWORTH:   We will get to it.
HIS HONOUR:   Critical. Quickly, expedition is the name of the game, of course. Notwithstanding my interruptions, and obviously, delays.
MR LONGWORTH:   In relation to the comment, your Honour’s observation, we all get older, we do. But children are different. Children have developmental stages that adults do not. Children start as infants and the next stage is described as toddler. Then there’s a child, there’s a preschool developmental stage, young adult, and then we have adolescent. [X] has passed through a number of developmental stages where his needs are significantly different to those when the orders were made. So regardless – regardless of the why, the fact is that there is a significant change in [X] from his perspective. He’s not a two year old any more.
HIS HONOUR:   But that would mean that basically, any set of orders could be revisited on the basis of so and so has moved into this developmental stage.
MR LONGWORTH:   Yes, it could.
[6] T 5. I should note here that Counsel for the Father confirmed that his client did not seek an Order for indemnity costs against the Mother, as set out in his Application. I expressed concern about the growing incidence in family law litigation, especially and notably in parenting cases, to seek Orders for costs, and particularly on an indemnity basis, almost as a matter of course and in so-called quite standard Applications. See T 8-9.
In my view, this was a very broad submission and would effectively make any Application of the kind before the Court here almost into something akin to a “rubber stamp”, simply on the ground that the child had reached another developmental mile-stone, therefore, the Orders should be re-visited. If this be what the Father was arguing here, in my view, it is not supported by authority. It would also make something of a mockery of the terms of s.65DAAA.
Discussion then turned to things, such as the Mother’s conduct, having for many years provided or acquiesced in X spending greater and more regular time with the Father than the Orders provided but, in more recent times, insisting on compliance with the 2015 Orders, which are rather more restrictive. Counsel also commented:[7]
MR LONGWORTH: Thank you, your Honour. The first and most important point to make is that for the purposes of Section 65DAAA(1), there are two steps. And the first is a consideration of a significant change, and it’s important the language is used, because your Honour is not required to find a significant change, just to consider it. The subsection 2 is the next step, and that is a mandated satisfaction that in all of the circumstances, and taking into account whether there has been a significant change, it’s in the best interests of [X] for the final parenting order to be reconsidered.
[7] T 13
Such matters were elaborated, thus:[8]
HIS HONOUR:   So you say that – well, do you say that but for the mother’s change in stance – my words – there would have been no need to bring an application.
MR LONGWORTH:   That’s one part – one tract of argument, but there’s this separate tract and I think it’s important to not conflate them. The passage of time is only one issue. [X's] stage of development ‑ ‑ ‑
…
HIS HONOUR:   You can take it that the court is reasonably au fait with developmental stages in children.
MR LONGWORTH:   I’m not about to repeat that. What I was going to say was that, given where [X] is at now, regardless of whether it was two years or four years or ten years, it would nonetheless be appropriate to reconsider the orders because they are not suitable for his best interests. Put simply.
HIS HONOUR:   That – but – sorry – but then that runs into my earlier, now repetitious comment, that whenever a child moves into his or her next developmental stage, tick the box, get around or over Rice & Asplund, revisit the orders.
MR LONGWORTH:   No. It’s whenever the child – when the orders are not suitable to the child’s best interests, and that will, at some point – sorry – in some cases, be because the child has moved to another developmental stage. Moving from toddle to young child may not be a significant change, but the passage of 10 years, leaving aside whether applications were brought, has visited a significant change. So it’s not about why didn’t someone bring an application. It’s about has there been a significant change. And a factor your Honour is not required to consider is how the parties operated, as it were, whether or not someone took a step or didn’t take a step.
[8] T 13

Regarding the Father not bringing an Application at an earlier point in time, his Counsel submitted, in a number of places but noting here only one of them (emphasis added):[9]
… what I’m saying to your Honour is the fact the father didn’t bring an application is a distraction from the core issue of [X's] best interests. And we don’t slavishly hold onto orders just because they’ve been made if they no longer serve a child’s best interests, because that would be completely inconsistent with the objects of the Act and completely inconsistent with the best interest principles and decades of authorities.
So that’s why I’m going to where [X] is at now, because it’s how he is now and, if I don’t put it in the context of significant change and just put it in the context of, “These orders do not provide for a meaningful interaction with his father. They don’t allow him to have holidays with his father. They don’t allow him to meaningfully interact with the paternal family,” that’s regardless of whether it’s a change – it’s that the orders do not serve his best interests, and that’s the satisfaction that your Honour would have, and must have, under 65DAAA(1), regardless of any change…
[9] T 14
Another issue raised by the Father was that his time with the child, limited as it is now under the existing Orders, will have to “compete” with the child’s increased activities as he “developed” and as he got/gets older. I confess that I found (and still find) this submission as rather a focus on the Father more so than on the child’s best interests. Put another way, if the child chooses to undertake various activities, presumably that is the child’s choice. There would be, or could be a risk, on the Father’s argument, that the Father’s time with the child impeding the child’s extra-curricular activities, and if so impeded, it could be counter-productive to the Father/son relationship. In any event, Counsel’s submission in this regard, in his own words, was as follows:[10]
And the most important way here is the time that’s needed to devote to those activities start to compete with the mere 30 hours the father has with [X] each fortnight. If there’s a [sports] game or a school activity or a friend’s birthday party that overlaps with the six solitary hours [X] has to be with the father in week 2, the consequences are stark. Firstly, there’s the loss of time when [X] is at the other activity. Secondly, there’s a pressure on [X] if he feels he has to choose between his friends and seeing his dad, who he already has such little time with. And, thirdly, if [X] is at a [sports] match or a friend’s party, there’s the loss of time with his father.
[10] T 14-15
The Father’s submissions returned to issues surrounding X’s development and a link was drawn, in my view somewhat tenuously, between that development and, for example, the need for X to spend time with his Father as he approaches and goes “through puberty.” Other matters arose here also. The submissions here, on two fronts, were …:[11]
[X] is entitled to have his father involved in his life, to share the activities and social network that develops. This is heavily constrained under the 2015 orders, if not simply impossible. So as I said, whilst there’s a passage of time from the 2015 orders and the passage of time on its own may not be sufficient, we don’t just point to that, but we point to the development stage that [X] is now at, soon to go through puberty, soon to be teenager, all that brings with it that are not well met by an order that merely provides for one overnight a fortnight and six hours on the other weekend. It’s also important to note – and this is important for subsection (2) – that [X] is of an age where his views should be heard.
As a toddler, he was likely inarticulate, but that’s now not the case. And on the evidence of each parent, divergent as it is, [X] has views. The views may be of limited weight, but it can’t properly be assessed from the parties’ own evidence. Under subsection 60CC(2)(b), the court is mandated to consider any views expressed by a child. Judge Sexton could not have done so in 2015, given his age, but it’s certainly something that could be undertaken today. Had the mother not rejected the recommendation of the judicial registration nine months ago, there might well be some independent insight into [X's] views.
HIS HONOUR: But what am I meant to do with non-evidence?
MR LONGWORTH: Because subsection 65DAAA(2)(b) requires the court to consider whether there’s material available that was not available to the court when the final parenting order is made, and the fact that the mother has impeded that is important. Your Honour could have had that evidence. It was recommended by the judicial registrar and was opposed by the mother, who then goes on to criticise the judicial registrar in her evidence.
[11] T 15
I raised with Counsel for the Father how the Court deals with the new section that refers specifically to the Convention on the Rights of the Child (“the Convention”) but which is in circumstances where the Convention is not formally incorporated into Australian domestic law. Respectfully, little came form that brief discussion and questions posed by the Court.[12]
[12] T 16
Counsel properly noted that up until September 2022, the child had been spending additional time with the Father. The Mother then ceased time because, on her account, the Father was inconsistent in spending time with his son.[13] The Father rejected the Mother’s contention that she had been “flexible” and supportive of the child’s time with the Father. The reasonable response to that, however, is that if she had not been supportive and/or flexible, there is no explanation why the Father brought no earlier Application either to formalise “extra time” arrangements, or a contravention Application. Neither occurred – which is not, and cannot be, disputed.
[13] T 17
It must follow that at least between December 2015 and September 2022 (on the Father’s evidence) (a) the Mother must have been both flexible and supportive of the child spending extra time with the Father, over and above what the December 2015 Orders provided for, and/or (b) the Father was insufficiently interested, or otherwise deemed it unnecessary, to bring any such Application to seek extra time. As the old saying goes: one cannot have it both ways, here, to contend that the Mother was not flexible and/or supportive of the extra time, or if was not, do nothing about it over multiple years.
The latter part of the Father’s submissions were taken up with traversing briefly the four new “considerations” in s.s.60CC that are referred to in s.65DAA(2)(a) – (d), which were essentially confined to the matters in sub-paragraphs (c) and (d); I need not summarise here and simply refer the reader to the Transcript.[14]
[14] T 20-21
H. Oral submissions on behalf of the Respondent
The Respondent’s oral submissions may be summarised as follows.
The first part of the Mother’s oral submissions noted the issues that were in play, so to speak, when the Orders were made in December 2015 and the present time. This was also in the context, as submitted, that the Father’s submissions were predicated upon the 2015 Orders having broken down; the Mother submitted that they had not. The Mother also submitted that the Father’s submissions, for the purposes of s.65DAA, necessarily require the Court to infer that there has been a significant change in circumstances for the child.[15]
[15] T 22
The issues that the Mother said were originally “in play”, and remain so today, relate to:[16]
(a)the child living with his Mother and his two older brothers, and, somehow, the involvement and importance of the paternal family;
(b)concerns about family violence on the Father’s part, and his use of alcohol; and
(c)the Court cannot, as it were, “review” the merits of the original Orders made in 2015 (noting again that there was no appeal from those Orders or Application either to re-open or vary them). Rather, the section requires a consideration of the circumstances of the making of them but in the context of “best interests” considerations.
[16] T 22
More succinctly, Counsel for the Mother submitted the nub of the Father’s case to be as follows:[17]
The narrative of the father asked the court to accept that there was a unilateral cessation in time in 2022, between the father and [X], orchestrated by the mother for her own reasons. That’s not the evidence of either party, nor is it the evidence of the mother, particularly. So the father, in his evidence, says, “Well, there was a flexibility in relation to the time arrangements, and I’m only coming to the court now that this flexibility no longer suits me.”
It’s essentially what his case is, some eight years later. But the father says, “Look there was some flexibility —” and on his case he was having additional time, that’s what he says in his affidavit. But if the court goes to the tender bundle of the mother, and sees the correspondence between the parties, and I’m referring particularly to page 21 of that bundle, there’s a letter from the father’s solicitor to the mother’s solicitor in May of 2023 which is the opening volley, if you like, of the correspondence in this tranche of litigation, where the father writes – or is written on his instruction that notwithstanding orders, you have failed to make [X] available to spend regular time with his father other than sporadically and at your discretion.
There’s no mention in this document that he has previously had copious amounts of additional time or that there has previously been a flexibility that has served the father’s interests, and the father’s evidence in relation to that is particularly sparse. His evidence isn’t particularised, whereas the mother’s evidence, in particular at paragraph 69 and surrounds, particularises the limited time that the father had and the reasons for that limited time.
[17] T 23
At a little length, Counsel for the Mother took the Court to various correspondence between the lawyers, which included acknowledgment by the Father’s lawyers that (a) the Mother had been flexible in the time-with arrangements for the child’s time with the Father, and (b) the Father deeply regrets not bringing his Application to enforce the time-with arrangements sooner.[18]
[18] T 24. The specific references to the correspondence in question are set out in the Transcript.
Unsurprisingly, some emphasis was placed on the Father acknowledging that shortly after the December 2015 Orders being made, the Mother provided him with a copy of them.[19] I have noted these matters earlier in these reasons. In the same place, Counsel commented:
… It’s also the case that he sends copies of the orders to the mother in correspondence during the COVID period, this appears at paragraph page 85 and surrounds of the mother’s tender bundle. He’s got a working knowledge of these orders, he’s well aware of them, and he’s got a copy. But, he doesn’t do anything until he says, eight years later, ‑ ‑ ‑
HIS HONOUR: They’re not working.
MS CANTRALL: “The balance of the flexibility doesn’t work for him”. And he says, to this court, “It’s not enough”. It’s not enough time for him to spend with [X]. That’s the substance of his complaint…
[19] T 25
There followed an extended submission about the Mother’s concern regarding the inconsistency of the Father in spending time with the child. I need not outline these submissions because they are canvassed above in relation to the Mother listing the frequency of the Father’s overnight time with the child between 2018 and mid-2023.[20]
[20] Generally see T 26-27.
An important series of submissions follows in relation to “family violence” and the Father’s use of alcohol. While these matters were noted in the Father’s material, in the light of the information extracted from subpoenaed police records, the detail paints a significant but quite unflattering picture. In my view, the Father should have been much more forthcoming of the following matters from those records. Indeed, as highlighted in the Mother’s submissions, at par.10 of his Affidavit, the Father simply stated: “I deny any family violence toward the Mother.” To this, Counsel noted the following:[21]
The mother, however, brings to this court, by way of annexures to her affidavits, a provisional ADVO from 2014, which was before the orders were made; a final ADVO from 2014; as well as – and this, your Honour, is annexure – so they’re the first two annexures to the affidavit, but the annexure 13 is the provisional domestic violence order ADVO from 2016, which contains in it additional terms in relation to not approaching or contacting the protected persons by any means except through legal representatives, and the defendant must not approach the protected persons – or any such premises or place at which that person from time to time resides or works – within 12 hours of consuming intoxicating liquor or illicit drugs. So we have through the documents traced this concept that the mother’s concerns about family violence and alcohol use, often intertwined, haven’t dissipated. What she says is the high watermark of time that is safe, and your Honour will note the absence of any submissions in relation to safety from my friend, is what we have now.
…
But I will just step the court through that material and tender – and I note, my friend does not object to the tender of that material as per his earlier submission. But what this shows is a picture of a person about who, if the court were to reopen these proceedings, the court would have concerns about safety. The court would have concerns about this capacity of this person to responsibly deal with consumption of alcohol, and other issues.
[21] T 27 & 28
Next followed, in quite some detail, Counsel took the Court through quite detailed police records that confirm that certainly between 2016 and 2022, there was regular engagement by the Father with the police arising from intoxication, having a record (no details supplied) of offences while intoxicated, the paternal family calling the police to assist them with the intoxicated Father (the paternal Grandmother was taken to hospital after suffering a panic attack as a result of trying to deal with the Father and in the light of the police presence, it would seem). Details of each incident and references to police records are set out in the Transcript.[22]
[22] T 29-35
In the light of this concerning history, Counsel fairly, in my view, submitted:[23]
… it’s a pattern that I say can’t be ignored. Just because there is a period of calm now doesn’t mean there will always be and doesn’t mean the risk is dissipated. We have no evidence from the father that he has sought any treatment in relation to alcohol abuse or received any counselling or that even acknowledges that alcohol abuse is an issue. What he says instead is, “I’ve never perpetrated family violence,” and is silent on alcohol. And these issues are clearly issues that are for the court. I accept that there is limited utility in all the documents from the police, and certainly these allegations haven’t been put to the father in line with the structure of a hearing for Rice & Asplund, but there is sufficient evidence there, in my submission, to say that this is an issue that the court can’t ignore.
It’s not just we’ve got a boy who’s getting older so let’s graduate the orders to match how old he is. It’s something quite different. It’s a complex dynamic where risk needs to be looked at, not in black and white terms, but in multi-dimensional terms…
[23] T 35
Then Counsel submitted that it was time to come to “the real issue in this case”:[24]
… the real issue in this case, which is what would serve [X's] best interests about reopening all of this? Where would he be, in this new litigation? He’s a boy who’s going to go into high school next year. He already has a relationship with each of his parents – the mother says, to the maximum extent that it’s safe to do so. He has already got that relationship. He’s exercising weekly time. The orders have not broken down. The orders are still in place and are being followed by each of the parties. The detriment to him, of reopening this process, is about his engagement.
…
The father’s evidence itself, at paragraph 62, also identifies that [X] is feeling stuck in the middle of this. The father gives evidence, himself, about [X] being reluctant to do certain things or take certain things or say certain things. If we open this up, we open the door to very heavy involvement for this boy, and for what? He has already got orders that provide for time. Those orders are being complied with. What can we give him, in his interests, that goes beyond that?
[24] T 36
In response to questions from the Bench regarding how the “new regime” operated in relation to the “protective” duties of the Court that were emphasised under now repealed and replaced s.60CC(2A), and also in the light of her submissions arising from the Father’s significant history with police that had just been assayed with the Court, Counsel’s comments were essentially in two parts, (a) regarding the statutory regime now in place, and (b) how those provisions operated in the facts and circumstances of the current matter. The submissions were as follows:[25]
[25] T 36 & 37
HIS HONOUR:   ‑ ‑ ‑ these protective responsibilities, which seems, perhaps, to speak generally, in this time – in this age, where there’s so much emphasis upon domestic violence – well, just consider them, but don’t necessarily give them priority.
MS CANTRALL:   If I may respond in two ways to that, because it’s something I’ve given considerable thought to, not just for this matter but for many other matters dealing in the jurisdiction, but – and these are my ‑ ‑ ‑
…
MS CANTRALL:   No. So the way that the new legislation deals with that issue of hierarchy or priority is to write in the safety provisions. So it comes in in two places. So in the objects and principles, what’s being replaced is a concept that – so:
...to ensure the best interests of the children are met, including by ensuring their safety –
and that is the only specification in the objects and principles aside from, as my friend took you to, giving effect to the Convention. But then when you read the legislation itself, we have at subsection 60CC(2)(e):
The benefit of the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.
HIS HONOUR:   “Safe to do so”.
MS CANTRALL:   So that caveat is written in that there must be consideration of there being safety. I would also say there is an omission – a deliberate omission in the new legislation with the concept of equal shared parental responsibility being a presumption. This concept of significant and substantial time: we don’t have that any more. These provisions which were removed, which are, if you like, to use the vernacular, contact-friendly provisions – instead we have the arrangements (2)(a):
...what arrangements promote safety (including safety from being subjected to, or exposed to, family violence –
we also have a consideration of historic family violence, family violence orders. So there is written into it, I would say, a more protective stance because we don’t have any more – even the concept of meaningful relationship is written out. So in my submission, if the father litigates this mark too, he’s litigating it under a different type of legislation which might not lend itself quite so easily to an automatic 5, 6, 7 nights of fortnight if there’s nothing more. And it’s that that tips the balance, in my view, of this case in terms of, if we’re reopening, to what end for this child.
…
… And just while I speak to the issue of those voice recordings and electronic communications, the mother gives evidence in her affidavit, particularly around paragraphs 78, 96 and 80 of her affidavit, about these events that have recently occurred, including text message exchanges where the father is grossly abusive to the mother – grossly abusive. And there’s recent messages in paragraph 112, as recent as this year – April this year – where there is grossly abusive messages coming from the father to the mother. His answer to that in his material is a blanket one. Paragraph 96(n) of his affidavit:
I admit that various text messages I sent [Ms Radecki] were extremely unpleasant. I care about [Ms Radecki]. She’s the mother of my son. I have however sent text messages in the past that were poor on my part.
It doesn’t quite cut it. They’re still flowing. Clearly, there are issues here when you look even just immediately below the surface as to what’s going on which are not going to be cured by another set of court proceedings…
I.         Applicant’s Submission in Reply

I will not canvass every matter addressed “in reply” other than to note the following summarily:
(d)On the one hand, Counsel submitted that the Mother was effectively running a “parenting case” which was not the Application that was before the Court, especially if too great a reliance was placed on the police records, but on the other hand, Counsel confirmed that “the records, on their own, raise real issues.”[26]
(e)The Court raised the fact that the Father made no mention of the police records and made but passing reference to his involvement with the police in his material at all. The response to this was simply that this was not a “parenting case”, therefore [implicitly] there was no need to mention such things.[27] Respectfully, matters of significance outlined in the police records, in my view, should have been addressed directly by the Father.
(f)Further, the submission was that the focus should be on the “reconsideration” under s.65DAA and not a consideration regarding what parenting Orders may, or should, be made.
[26] T 40
[27] T 41
The issue of how properly to consider the police records went on for a little while. Part of this exchange went this way (emphasis added):[28]
HIS HONOUR:   But it’s still a weighing exercise, isn’t it? It’s an evaluative function of the court to take into ‑ ‑ ‑
MR LONGWORTH:   Yes.
HIS HONOUR:   ‑ ‑ ‑ account what is in the child’s best interest in the circumstances that are presented.
MR LONGWORTH:   But best interests for what? It’s not best interests for what is the appropriate order, and that’s the issue.
HIS HONOUR:   No, no, I understand that.
MR LONGWORTH:   Right. But, in my submission, that’s what you’re being invited to do, is to consider that the current order meets the best interests and why: one of the reasons is the very unimpressive police record, untested, and not analysed by someone with expertise. You can’t do that, in my respectful submission, to assess the current orders against a matrix of evidence from third parties. The question is to consider the reconsideration. That’s where the best interest is directed to under 65DA(1)(b). Can I move on, or should I move on?
HIS HONOUR:   Indeed. No.
MR LONGWORTH:   Certainly. In relation to some specific things, the opening was that no party has said these orders have broken down. With respect, that is not the test. As I said, the test is whether it’s in the best interests to reconsider. But the mother does say that the orders were not working. She only came back into the fold under the shadow of litigation. And your Honour is being invited to assume that once litigation is not present, that she will somehow continue in a commitment to orders that she is patently not committed to unless under the watchful eye…
[28] T 42
Simply as an observation at this stage, the section of the transcript highlighted above, in my view, would pose an almost intolerable and impossible burden if police records were required to be “analysed” by someone “with expertise.” As the submission reads, police records need to be analysed. While I accept that there was no cross examination of either witness, and certainly not of the Father (or any members of his family) regarding matters in these records, the Court may properly and reasonably take them into account at least on a prima facie basis, rather like the Affidavits filed and the documents annexed or exhibited to them. As noted earlier, Counsel for the Father confirmed that the police records “raise real issues.” Indeed they do, and significant ones, in my view. I do not think, as submitted, a single, brief paragraph (Father’s Affidavit, par.100) acknowledging “a history of drinking to excess” properly addresses the mattes that came to light only after Counsel for the Mother took the Court through the police records.
Counsel concluded:[29]
… to be clear, I agree with my friend in relation to the focus and the legislation, that it’s shifted from the unhelpful — if I could use that word — headings of primary and additional considerations, which then had to be addressed by a prioritisation of sub (2)(a), and the word, “safety” is, I think, the pivot point for Section 60CC and is reflected of course in the Convention on the Child, which is part of the objects of the Act. Having said that, it’s again an ambiguous position the mother takes.
…
MR LONGWORTH:   Yes. Well, I suppose putting it this way. If an order that exists is inappropriate for a child and not in their best interests, that’s the only finding necessary, and in my submission, it is in error to reject an application because, for example, a parent hadn’t acted at an earlier stage or brought a contravention and, as I said – and this is the last point – the section does not require ‑ ‑ ‑
…
MR LONGWORTH:   Does not require your Honour to consider what is in [X's] best interests. It requires ‑ ‑ ‑
HIS HONOUR:   Sorry, does or doesn’t?
MR LONGWORTH:   Does not. What it requires is your Honour to – to be satisfied that reconsideration – looking back at an order is in his best interests.
[29] T 45, 46 & 47
J.        The Father’s Case & Evidence – Summarised
In the light of the welter of material both sides marshalled for the contest, the following summary of factual matters, albeit that some are in dispute, are relevant (according to the direction in Stern v Colli) to the first stage of the Court’s consideration.
There is no dispute that the original Orders of Judge Sexton, made in December 2015, issued in circumstances where the Father was not in attendance. Therefore, the Orders were made on an undefended basis. There was much debate at the hearing in the current matter whether, and if so when, the Father was served with the Orders. Much was also made by the Father of the discussion between her Honour, Judge Sexton, and the Mother at the time the Orders were made. In some way, this was, in my view, at least unhelpful if not somewhat moot for the following reasons.
First, on the one hand, the Father wants the Court to infer or to draw certain inferences essentially adverse to the Mother regarding her conduct then before the Court and what she now puts before it to oppose the Father’s Application. On the other hand, the Father asks the Court not to draw any inferences (or anything else) regarding (a) the Father’s non-attendance at the hearing in December 2015, and (b) that he made no Application since the Orders in December 2015 until his current Application filed in July 2023.
Secondly, as interesting as the discussion between the “trial Judge” and the Mother was in December 2015, there were no reasons issued by the Court that could (or would) constitute a formal record of the reasons why the Orders were made in December 2015. In my view, the Court today should be wary, indeed, cautious, about drawing too much from a discussion between the Bench and the Mother on the day the Orders were ultimately made back in December 2015.
In any event, at par.27 of his Affidavit, filed 13^th May 2024, the Father confirmed that “… at some point in December 2015 [the Mother] gave me a copy of the 2015 Final Orders …” In the same place, the Father said to the Mother, among other things, “We don’t need them [the Final Orders]. Things are fine with us. Everything has been okay.” There is no evidence, or even a suggestion, that at any time immediately after he received a copy of the Final Orders the Father applied to the Court to have them set aside or varied. This is consistent with his statement to the Mother just recorded that such Orders are not needed because “things are fine with us [and] everything has been okay.” Such comments, in my view, also make it unnecessary for the Court to consider and address the details in pars.1-35 of the Father’s Affidavit, which outline (among other things) living arrangements for the Father and his relationship with the Mother.
The Father making no Application to the Court, for example, at any time between late 2015 and early 2022, is also consistent with his further comment, at par.36 of the same Affidavit as follows: “For many years leading up to around September 2022, X was spending time with me beyond and in excess of the time as provided by the 2015 Final Orders.” Various occasions confirming this statement were then set out. Again, because of the Father’s statement of spending, apparently, regular time with X, and in excess of the time provided for in the Final Orders, renders consideration of all these other events and circumstances quite unnecessary and basically superfluous for the purposes of the Father’s present Application.
In these circumstances, it is perfectly understandable that the Mother argued that it is otiose to consider, for the purposes of the current Application, any matters effectively prior to December 2022. Indeed, the Father noted, at par.42 of his Affidavit, that the child resumed spending time with him overnight in September 2023. It seems clear enough that there has been, and remains, a certain waxing and waning in the extra time-with arrangements for X and his Father that have been agreed to between the parties. In general terms, however, I agree with and accept the Mother’s submission just noted regarding the general workability and operation of the December 2015 Orders between the making of them and at least until late 2022, subject to what follows.
Between pars.44 and 95 of his Affidavit, there are multiple instances of the Father describing events and family and other occasions when he and X were together, as well as the semi-regular difficulties the Father says he encounters in “negotiating” with the Mother regarding time-with arrangements for X and himself.
Likewise, at par.89, the Father confirmed that “since around 15^th March 2024 the Mother has been delivering X to my house at the commencement of time and I have been returning X to his Mother’s residence at the conclusion of time.” While there remain a number of ongoing issues between the parents, on the Father’s own account there remains some degree of co-operation between them. There remains always a question of degree regarding “time-with” arrangements, co-operation and all other aspects of the parenting in the light of the existing Orders, and likewise, what might be possible if the litigation was re-opened, notably what is now, and what might be, in X’s best interest.
At one level, the “entanglements” both sides recount are typical of a great many family law contests. In that sense, and without diminishing the angst and difficulty engendered for all involved (including the wider family), the contests are relatively run-of-the-mill, which is to say that, very regularly, there are difficulties in co-parenting situations. There is nothing novel or exceptional about such things. But “difficulties”, on their own and without more, also make it very difficult for the Court to assess or reasonably make a determination that such “difficulties” are sufficient to warrant embroiling the parties and X in further litigation, accepting that X was very young when the December 2015 Orders were made. Put another way, do “parenting difficulties” constitute a “sufficient change in circumstances” so as to warrant litigation being permitted to resume and all of the related angst, cost and tribulation which inevitably ensues? As Judges regularly muse, even if only to themselves but regularly to parties, “surely that has to be a better way” than the burden and cost (in every sense) of litigation.
It should also be kept in mind that the more recent contests between the parties is against a background where, for example, at par.100 of his Affidavit, the Father admitted that he has had a “history of drinking to excess”, and his sister stated at par.17 of her Affidavit (filed 13^th May 2024) that the Father has had a strained relationship with his family and that “there were times that Mr Radecki [the Father] returned to my parents home intoxicated.” The Father’s sister also noted, at pars.18 and 19 that the Father became intoxicated because he was not seeing his son but in such a state he behaved in an aggressive manner, such as “breaking some items in the [family] house.” As a result of the Father’s actions, the police took out an ADVO “against Mr Radecki just to keep the peace between Mr Radecki, myself and my parents.” Simply as an observation: the Court should not, as it were, “reward” the Father by (for example) granting the Application so as to minimise the risk of the Father continuing to drink to excess because he is not spending as much time with his son as he would like.
The context of the contests between the parties also needs to be considered where, for 7 or more years, the Final Orders have been “working”, doubtless not perfectly, but the parties have regularly been able to make arrangements that go beyond them for X to spend more time with his Father than as provided for in the Orders. Both are to be commended for this. Such co-operation should, I suggest, be a good foundation for further co-operation in the future.
I simply note that the Father’s 60-page Tender Bundle, which contained multiple photographs of the child with the Father, and various video recordings, really assisted me very little at all.[30] I do not understand that there was any real challenge to the Father and X having a good relationship.
[30] That Tender Bundle was “refined” with a list of documents relied upon by the Father, which also contained the documents and other materials relied upon by the Mother.
K. The Mother’s Case & Evidence – Summarised
For reasons similar to those set out above in relation to the Father’s material regarding events leading up to the making of Orders on an undefended basis in December 2015, I do not consider that pars.25 – 54 of the Mother’s May 2024 Affidavit, which traverse a range of matters during that period, are relevantly material to the Court’s consideration today. In no way critically, nor was it explained (by Counsel for either party) how events in 2013, 2014 and 2015 assist me regarding the determination of the current Application. Context and background, I understand; relevant to the current Application, it seems to me, is quite the bridge too far, especially since I cannot make any formal findings relating to such matters.
The most crucial matters, it seems to me, from that time, which are uncontested, are: (a) Orders were made on an undefended basis; (b) the Father acknowledges that at some time in December 2015, the Mother provided him with a copy of the Final Orders; (c) the Father brought no Application between December 2015 and July 2023 seeking to vary or to discharge the December 2015 Orders; and (d) between December 2015 and July 2023, the Father spent regular (and increased) time with X according to arrangements that he worked out with the Mother. The time-with arrangements had also been negotiated in circumstances where, on the Father’s evidence and that of his sister, at times he was heavily intoxicated, and where the police had taken out an ADVO to protect the Father’s parents and his sister.
From par.56 in the Mother’s Affidavit, she outlined what she said the parenting arrangements were from 3^rd December 2015. This included (par.61) an incident in mid-2016 where the Father became abusive of her older son, H, which resulted in an ADVO being taken out by the police to protect the Mother, X and H (the ADVO is Annexure -13 to this Affidavit). At par.69, the Mother listed the very limited number of nights that X spent with his Father for each year between 2018 and July 2023, being respectively 11, 7, 4, 4, 0 and 1 overnights.
At par.73, the Mother deposed that, generally, there is no issue with X spending time with his paternal Grandparents in recent years. She set out the times in 2021 and 2023 when this occurred. Curiously, there are no entries for 2022. Pars.74 and 75 set out the times and occasion when X himself has chosen to see, or not see, his Father and the circumstances of each. I do not need to summarise them and simply refer to the detail in those paragraphs.
Pars.77, 78(a) – (h), 79 and 80(a) – (c), set out a range of incidents that the Mother says are matters where she has been threatened by the Father, or where there have been events of concern to her involving the Father. A significant number of the matters set out by the Mother are supported by documents or other material exhibited to her Affidavit, notably but not only SMS messages from the Father (see -13, -18, -19, -20, -21, -22 and -23).
At par.78(d), the Mother recorded an incident in mid-2020 where the Father had attempted self-harm, and at par.78(h) where there were death threats to the Mother from the Father regarding her allegedly preventing X spending time with the Father. Par.79 records an incident in mid-2022 regarding the Father being arrested and apologising to the Mother, save for Exhibit -21, there are no other details surrounding this event set out in the body of the Mother’s Affidavit.
Unsurprisingly, in my view, the Mother (indeed most people) would be very concerned, and rightly so, for themselves and their child if similar events occurred as described by the Mother and highlighted by the Court in the previous paragraphs, especially the death threat, the attempted self-harm and the arrest of the Father. The Father’s volatility and unpredictability, which is generally acknowledged by his sister (noted above), would and should be matters of significant concern.
Par.99(a) – (e) set out the Mother’s regular attempts to accommodate the Father’s wishes to vary the Orders and make alternative arrangements for X to spend with the Father. I do not need to detail these matters. Pars.102-113 outline the difficulties regarding telephone calls between the Father and X, which include hostile and accusatory comments from the Father to the Mother. On multiple occasions the Mother refers to both the unpredictability and unreliability of the Father regarding arrangements for X, including that upon picking up the child, the Father simply deposits him with the paternal Grandparents and leaves him with them.
The Mother deposed (pars.123-128) that X has advised her that the Father has a new partner who resides with the Father, which leaves X without suitable sleeping accommodation when with his Father. I need not summarise the remaining parts of the Mother’s Affidavit (pars.129 – 149) except to note that at par.139, after one event before a Registrar, the Mother canvassed with X the possibility of there being a Child Impact Report. The Mother reported that X became very upset about such a proposal and resisted it strongly.
Finally, I need only note but otherwise not comment on pars.143 – 146 of the Mother’s Affidavit where, among other things, she contended that the notations to various Orders made by the Registrar have “completely misrepresented” her position before the Court.
L. Outline of Principle
From the significant body of case-law that considers what might be called the “golden rule” in Rice & Asplund, now canonised into legislation (in a manner of speaking), I note the following modest litany of cases as various Full Court’s have explicated what and how this “Rule” is comprehended and applied.
Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[31] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set them out from his Honour’s judgment, save for his Honour’s comments at [48] and [81], which are as follows:[32]
[31] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[32] Warnick J’s comments in SPS & PLS were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].
[48] In my view, reflection on the rule shows that:
What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
“Shorthand” statements of the rule may contribute to its misapplication.
Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
[81] …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.

Secondly, in Katar & Sevan, Campton J (also sitting alone exercising appellate jurisdiction) noted the following. After recording, at [18] – [19], that the Court was dealing with an appeal from a discretionary decision and that well-known principles regarding such appeals could be briefly set out, at [23] and [24], his Honour said:
[23] What is often referred to as the principle or rule in Rice and Asplund rests upon the indisputable proposition that continuous litigation about the living arrangements of children is inimical to their welfare and contrary to their best interest (Langmeil & Grange [2013] FamCAFC 31
[24] It is well established that the question of whether there has been a sufficient change in circumstances can be determined either by way of preliminary or interlocutory enquiry, or by way of a final hearing (Poisat & Poisat (2014) FLC 93-597 (“Poisat”) at [39]-[41]; Miller & Harrington (2008) FLC 93-383 (“Miller & Harrington”) at [80]-[83]; Jaynes & Rundle [2020] FamCAFC 292 at [14]). However, at whichever stage the determination is made, the rule is a manifestation of the best interests principle (Poisat at [18], [19], [40], and [42]; Defrey & Radnor [2021] FamCAFC 67 and procedural fairness must be observed (Marsden v Winch (2009) 42 Fam LR 1 (“Marsden & Winch”) at [56]). Save as to complaint, the father made no submission as to an error by the primary judge determining his Initiating Application by way of a preliminary or interlocutory enquiry to support this ground.
A little later in the reasons, his Honour said, at [48] (emphasis in original):
[48] In Defrey & Radnor, after considering SPS & PLS (2008) FLC 93-363 at [81] and [84], Miller & Harrington at [105], and Marsden v Winch at [58], the Full Court summarised the law concerning Rice and Asplund:
[19] In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
[20] It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s.69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
[21] The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s.60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s.60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
[22] Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
Faced with such an abundance of judicial riches as outlined above, for relative ease of reference, my primary focus here will be upon the following basal principles:
(a)In Rice & Asplund (and repeated many times since albeit in multiple slightly different ways), the Full Court said: “It [the Court] should not lightly entertain an application to reverse an earlier custody. To do so would be to invite endless litigation for … change is an ever-present factor in human affairs. … 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.”[42]
(b)The two-staged step outlined by the Full Court in Stern v Colli, at [35], set out above, taken from Defrey and Radnor which, in turn, relied singularly upon the earlier Full Court decisions in SPS & PLS, Miller v Harrington, and Marsden v Winch (all detailed earlier in these reasons).
[42] See Rice & Asplund (1978) 6 Fam LR 570 at 572 (Evatt CJ; Pawley and Fogarty JJ agreeing).
There is one final matter that needs to be addressed before proceeding. Rightly, Counsel for the Father emphasised that under s.65DAAA, the Court is required “to consider” certain things set out in the various parts of this new section in the Act. Perhaps somewhat surprisingly, there was no mention what, according to authority, it actually means for a Court “to consider.” This basic point was addressed in the well-known decision in Goode v Goode where the Full Court was considering the then new amendments to the Act.[43] The Full Court’s reference point was the Full Federal Court’s decision in Tickner v Chapman, otherwise known as the Hindmarsh Island Bridge Case.[44] At [57] – [64] in Goode, Bryant CJ, Finn and Boland JJ said:
[43] Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422.
[44] Tickner v Chapman (1995) 57 FCR 451.
57. This question arises from what follows from an application of the presumption of equal shared parental responsibility in s 61DA. When any parenting order is made for equal shared parental responsibility then the Court must apply s 65DAA. This requires the Court to consider the child spending equal time or substantial and significant time with each parent in certain circumstances. The question therefore arises, what does “consider” mean.
58. In Aboriginal & Torres Strait Island Affairs, Minister for & Norvill v Chapman; sub nom Tickner v Chapman (The Hindmarsh Island Bridge case) (1995) 57 FCR 451the Full Court of the Federal Court extensively examined the meaning of the word “consider”.
59. The appeal was part of litigation over the Hindmarsh Island Bridge development. The appellants challenged pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) both at first instance and on appeal the decision of the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs to make declarations concerning the development site. The appellants asserted the Minister had failed to consider a report prepared to determine whether or not the declaration should be made.

60. Relevantly, Black CJ held at 462:
The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary (2nd ed) as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”. Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
61. Burchett J held at 476-477:
What is it to “consider” material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s.10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 at 568–569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to “consider” a report, Laskin J, speaking for the Supreme Court of Canada, said: “Certainly, the board must have the report before it”: Walters v Essex (County) Board of Education (1973) 38 DLR (3d) 693at 697. When Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30–31 conceded that the Minister, in the circumstances of that case, was not obliged “to read for himself all the relevant papers”, and that it “would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department”, he also made it plain that the summary must “bring to his attention” all material facts “which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial”. That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority.
62. Kiefel J held at 495-496:
To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of whichs.10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else’s view of them, and the legislation has required him to form his own view upon them.
63. In Tickner, the Full Court affirmed the decision of O’Loughlin J at first instance (Chapman & Barton v Tickner, Minister for Aboriginal & Torres Strait Islander Affairs (1995) 55 FCR 316 that the Minister had failed to properly consider the report. O’Loughlin J’s comments at first instance are of relevance (at 369):
The verb “consider” is a common word used daily in language and in documents; yet no counsel was able to refer to any judicial determination of its meaning. The Macquarie Dictionary and the Shorter Oxford English Dictionary ascribe to it a variety of shades of meaning giving, respectively, as their first definitions “to contemplate mentally; meditate or reflect on” and “to view attentively, to survey, examine, inspect”. American and Canadian dictionaries give similar general descriptions: “advert to, analyse, appraise, assess, etc” (Legal Thesaurus 2nd ed: William C Burton) and “to examine, inspect; to turn one’s mind to” (The Dictionary of Canadian Law: Duke Low & Niese).
64. While these observations of the Federal Court are of some assistance, we do not think that the meaning of “consider”, when applied to consideration of administrative law as in the cases referred to, is entirely apposite to the meaning of the word in s 65DAA. This is so because the juxtaposition of ss 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).
Of course, it remains to be seen whether the new amendments under the Act, and s.65DAAA in particular, are relevantly “considered” according to the matters addressed by the Full Court in Goode by reference, albeit in a somewhat limited or qualified way, to the Full Federal Court decision in Tickner v Chapman. Unless otherwise advised, presumably these two Full Court authorities will remain the jurisprudential touchstones.
For completeness, I should also briefly note the following.
First, s.60B of the Act sets out the simplified objects of Part VII of the Act as follows:
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Secondly, the complete ss.60CC(2) and (2A) are in the following terms:
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
The Explanatory Memorandum to the new amendments to the Act states the following regarding s.60B (emphasis added):
17. New paragraph 60B(a) outlines that the purpose of the provisions in Part VII is to ensure that the best interests of children are met, including by ensuring their safety. This reflects that, when making a parenting order under Part VII, a court must regard the best interests of the child as the paramount consideration (section 60CA). Paragraph 60B(a) emphasises that ensuring the best interests of the child are met includes ensuring their safety. This is intended to make it clear to all users of the Family Law Act that safety is a fundamental consideration when considering the best interests of the child. To avoid doubt, ensuring children’s safety includes protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
18. New paragraph 60B(b) confirms, in cases of ambiguity, the obligation on decision makers to interpret Part VII of the Family Law Act, to the extent its language permits, and where relevant, consistently with Australia’s obligations under the CRC. The CRC may be considered as an interpretive aid to Part VII of the Family Law Act. To the extent that the Family Law Act departs from the CRC, the Family Law Act prevails. This provision is not equivalent to incorporating the CRC into domestic law.
Respectfully, neither the new s.60B’s general reference to “give effect to the Convention on the Rights of the Child”, nor the equally general comments in the Explanatory Memorandum, assist in the day-to-day application of the Act. More relevantly, in NBGM v Minister for Immigration and Multicultural Affairs, the High Court provided more specific guidance regarding the way that Courts should approach international instruments that are referred to in domestic legislation.[45] At [61], Callinan, Heydon and Crennan JJ said:
… The first step is to ascertain, with precision, what the Australian law is, that is to say what and how much of an international instrument Australian law requires to be implemented, a process which will involve the ascertainment of the extent to which Australian law by constitutionally valid enactment adopts, qualifies or modifies the instrument. The subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires…
[45] NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52.
Respectfully, “giving effect” to the Convention” in question, as specified in s.60B, is as broad as it is unhelpful. What parts of the Convention, one might reasonably ask, are intended to be given effect to? And, as the High Court’s comments indicate, the main task is to ascertain what the law in Australia is, in any event. There is, of course, a surfeit of material – official, academic and other – on international instruments generally and the Convention on the Rights of the Child specifically. But there is complete silence regarding basic matters from this Convention that are intended to be some point of reference, as the Explanatory Memorandum indicates, for Part VII of the Act. For example, it is generally understood that the Convention is concerned with what are called the “four “P’s”: the participation of children in decisions affecting their own destiny; the protection of children against discrimination and all forms of neglect and exploitation; the prevention of harm to children; and the provision of assistance for their basic needs.[46] In my view, these basic principles are, on any view, clearly expressed both in the current amendments of Part VII, and were equally and more expansively detailed in the previous enactment of that Part of the Act, which rather makes (in my respectful view) the references to conformity to the Convention somewhat moot or perhaps more accurately, an exercise in legislative supererogation.
[46] See, for example, the impressive and detailed discussion by Geraldine van Bueren in The International Law on the Rights of the Child, (Dordrecht: Martinus Nijhoff Publishers, 1995) Chapter 1: A History of the International Law on the Rights of the Child, 1-31 at 15; and M. Freeman, The moral status of children: Essays on the Rights of the Child, (The Hague: Kluwer Law International, 1997). In an Australian Context, see M. Jones and L.A Basser Marks, “United Nations Convention on the Rights of the Child” a blueprint for Australia’s children,” in M. Jones and L.A Basser Marks (eds.) Children on the Agenda: the rights of Australia’s children, (Chippendale, NSW: Prospect Media Pty Ltd, 2001) 1 – 40 especially at 29-40; and J. Tobin, “The Development of Children’s Rights”, Chapter 2 in Children and the Law in Australia, (2^nd Edition) (eds. L. Young, M.A. Kenny, G. Monahan) (Sydney: LexisNexis, 2017).
M. Consideration & disposition
In the light of the authorities canvassed above, and in the light of the “facts”, such as they are, I note the following. The most expedient scaffold for this discussion is to set out, again, relevant parts of s.65DAAA and to comment on each part of it in the light of the principle and evidence.
The first part of s.65DAAA, as noted earlier in these reasons, is in the following terms:
(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

Sub-section (1)(a) requires the Court to consider whether there has been a “significant change in circumstances” since the final parenting Order was made. I need not, and will not, repeat the earlier comments regarding what it means “to consider”, or the multiple decisions discussed above regarding how Courts have looked at what is and what is not a relevant “significant change in circumstances.” I will repeat, however, that such inquiry involves, as best the Court can do, a consideration of facts without necessarily making any formal findings, again emphasising as the cases above have been at pains to point out, that such consideration(s) necessarily involve an important but still somewhat broad but not untrammelled discretion.
In answer, or in response, to the basal question “has there been a significant change in circumstances”, in my view, there are reasonable arguments both ways. Summarised even more so than as set out above, there is no question that the child is obviously older (as are the parents) than he was when the Orders were made in December 2015. His interests, necessarily, are also broader and different. While there was regular and significantly more time between Father and son between 2015 and perhaps 2022, in very recent times, there has been a reversion (the Father says) to a stricter compliance with the Orders of December 2015, and only since the Father filed his Application in mid-2023 has there been compliance with those Orders. The Father also says that the current Orders are inadequate or not in the child’s best interests. The Father makes a single and unparticularised reference and acknowledgment of a history of his “history of drinking to excess” (par.100).
On the Mother’s side, she says that the Orders are still appropriate, notably and especially having regard to the Father’s significant history of excessive use of alcohol, his significant history with the police referred to in the police records, his problematic behaviour not only with members of the public (also set out in the police records) but importantly in his problematic behaviour with his family. The Father’s sister acknowledged this in her Affidavit, and similarly noted also in police records. The Mother’s point here was the centrality of “safety” for the child, in the face of the Father’s somewhat problematic history involving alcohol, the police and his family, while still appropriately supporting the Father/son relationship. The Mother also points to the fact that the Father did not bring any Application regarding the existing Orders between 2015 and 2023. The Mother also submits, and provides some evidence, to the effect that the Father has been unreliable and inconsistent in spending time with the child.
A number of the matters noted here are also relevant to the consideration to be undertaken under paragraph (b) of sub-section 1, where it speaks about the Court’s consideration in “all the circumstances.”
Accepting that the summaries just provided are in these almost banal terms, the aging process of the child (like the rest of humanity) is not novel or a “significant change in circumstances.” As noted earlier in these reasons at some length, natural development arising from the normal process of getting older, while significant, without more, is difficult to characterise as a change in circumstances. Ordinary growth and development, according to the standard effluxion of time and ordinary human development, hardly qualifies as a “significant change in circumstances.” Such changes, in general terms, were entirely foreseeable and inevitable. How and to what degree those changes have been, is another question, but the underlying fact of growth and development is neither new nor novel.
On the other hand, excessive use of alcohol and the regular state of intoxication is either a choice on the Father’s part, or a response (as he protests) here to him not spending time with his son. This is to say, unlike the child’s natural aging and developmental process, the Father’s actions are either (or both) choices or almost unconstrained responses to his alcohol consumption, which was (he says) because he was not spending the time with the child he wanted. Drowning one’s sorrows, while a time-honoured, short-term form of analgesia albeit with significant health side-effects, throughout human history, it has not found universal approval as the best option to deal with difficulty of any kind, including dealing with one’s child or the child’s Mother, one’s family, or others more generally. This is especially so if, as seems to be the case here, the Father is regularly a boisterous and difficult person when inebriated. “Lack of insight” is a description that comes to mind regarding a person who consistently over a significant number of years (as is the clear evidence here from the police) takes to alcohol to deal with his parenting issues, and also where, as is also the case, there flows from the alcohol intake damage to property and risk of injury to others.
The flow-on negative effects on others, including on the Father’s family, are a significant consideration. The police records regarding these events involving the Father are significant; fortunately, there seems to be nothing similar since approximately 2022. Nonetheless, the frequency and the detail of them recorded by the police, in my view, would properly cause the Mother to be concerned about the Father on multiple fronts.
As a preliminary view regarding whether there has been a significant change in circumstances, as summarised here in the light of the evidence set out earlier, the most significant change that is not as a result of ordinary growth and development (in the child’s case) is the Father’s significant history of excessive consumption of alcohol, its negative impact on him and in turn on his family and others. In addition, it is also significant that (a) there is no question that the Mother agreed to and provided regular and additional time between Father and son for the overwhelming period between 2015 and the present time, accepting the hiatus for approximately 12 months or so between 2022 and 2023, and (b) as a consequence of the Mother’s positive actions, which I commend her for and encourage her to continue, the Father brought no Application at any other time of the child’s growth and development between December 2015 and July 2023. On these bases, there has not, in my view, been a significant change in circumstances. Ordinary “life changes”, do not, without more, constitute a legal warrant to consider them “significant.” Developmental changes can and may be “momentous.” But they are not, without more, as it were, “out of the ordinary” that warrant a legal description of “significant change in circumstances.” Developmental changes are foreseeable, and usually ordinary in the usual course of things.
The next part of s.65DAAA(1) refers to the Court being satisfied, still in the light of whether there has been a significant change in circumstances, that a reconsideration of the final Orders would be in the child’s best interests. Here, again, the arguments are reasonably well balanced.
On the Father’s side, he submitted (in accordance with his general position already stated a number of times) that, having regard to the child’s developmental stage, Orders made when he was approximately 2 years old and he is now 11, are inappropriate. There is some force with this submission. It fails, however, to have regard to Order 2f of the Final Orders, which provides that there shall be such other or additional time between Father and son “as may be agreed between the parties.” It also fails to take account of the significant history, over a significant number of years, of the parties agreeing for there to be extra or additional time between Father and son, and likewise, that there has been no Application by the Father to amend, discharge or vary the Final Orders of December 2015 until July 2023. Whatever developmental changes have occurred with the child during that period never warranted, from the Father’s perspective, any such Application.
Further still, the Father does not formally challenge the Mother’s evidence of the Father’s inconsistent overnight time with the child, set out above from par.69 of the Mother’s 10^th May 2024 Affidavit. Apart from his brief acknowledgement of a history of intoxication, the Father did not provide any evidence of any treatment for this and his adverse or negative mood swings and dysregulation that resulted, on his account, of his excessive consumption of alcohol, with the adverse consequences for others and his family that ensued. For my part, the inconsistencies of the overnight time between Father and son over a notable number of years, and the very significant history of alcohol abuse and subsequent abusive and distressing behaviour, are matters of genuine concern.
Against this background, most of which is not disputed, the basic question of how and why embroiling the child (and his parents) in litigation, likely over a significant period of time (likely at least 12 months and more likely much longer), and with, in my view, a less than certain or likely outcome, becomes more problematic. It is not just a “truism”, it is also a fact that it will much better serve the child (and his parents) if they could continue with a more agreeable, joint approach to “time-with” arrangements. As a suggestion only, but which is much more practical, child-focussed and much less costly (with no lawyers), perhaps every 3 months (or as otherwise agreed), they should have a mediated co-parenting meeting to consider future parenting arrangements for the child, which takes account of family events and the like. Such a course would readily come within the terms of Order 2f of those made on 3^rd December 2015. Those Orders, on the history before the Court, have otherwise plainly served the parties (and the child) reasonably well, but for the more recent hiccups that have led to the current Application.
In the light of the history outlined, and the issues raised by the parties, my preliminary view against acceding to the Application is little changed having regard to “all of the circumstances”, including the Court’s doubts and concerns in the areas identified, and the no less certain outcome that could eventuate following a long time in the Court system if the matter proceeds to a final hearing in the next 12 to 24 months.
I turn to the remaining parts of s.65DAAA. For ease of reference, I set them out again:
(2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a) the reasons for the final parenting order and the material on which it was based;
(b) whether there is any material available that was not available to the court that made the final parenting order;
(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
The matters earlier discussed in these reasons have, to a significant degree, already addressed the matters contemplated by the revised s.60CC. Accordingly, I can be much more summary here.
Obviously, there were no published reasons provided by her Honour at the time the December 2015 Orders were made.
Sub-paragraph (b) is somewhat ambiguous. If it refers to any material that was potentially available at the time of the making of the Orders, but which did not come to the attention of the Court, the obvious answer or response is “no.” If it intends to refer to material now available, of course the answer is clearly “yes.” That material includes, for example, the extensive police records, as well as the evidence of the parties, including the evidence of the Father’s sister, which (as earlier noted) attests to the Father’s abuse of alcohol and the negative impact on the family of his conduct. It is also true, as the Father submits, that there is little or nothing available regarding the “views” of the child. In this regard, the Father submitted multiple photographs which show a usually happy and smiling X at various family and other events. That is all to the good; it also attests generally to the Mother facilitating X’s time with the Father, albeit perhaps not as regularly or as frequently as the Father now says he seeks.
The response to the submission regarding X’s views, is relatively straight-forward, which is that although he is now aged 11 years, the weight that could be given to them would, at its highest, be relatively modest. While of some use, therefore, to subject X to interviews and the subsequent Report, may ultimately be of somewhat limited value, especially when viewed in the light of the larger, examined history at trial, which would very likely be focussed rather more on the history and conduct of both parties than upon the views of the child.
These same considerations might reasonably apply to the matters set out in sub-paragraph (c). While the Father submitted, almost protested, that the Mother (or the Court) was not and could not, in effect, run a “parenting case” because that is not the Application that is before the Court, the terms of the section actually require some consideration of (i) the possible making of new or varied parenting Orders and (ii) if the Court considers such possibilities, it must do so on the basis, among other things, of “best interests” considerations, as they are articulated in s.60CC, all of which are required to be considered in “parenting matters.”
To determine, as sub-paragraph (c) requires, in terms, whether there is a likelihood of a new parenting Order being made, the Court is required to consider, that is to weigh up the considerations set out in s.60CC in the light of the evidence put before the Court by both parties. In this consideration, the Court must also have regard to the terms of sub-paragraph (d) regarding the potential benefit or detriment “to the child” in reconsidering the current Final parenting Orders. Always, it becomes a weighing exercise.
Both of the broad matters set out in sub-paragraphs (c) and (d) have, effectively been canvassed in the discussion above. There is, necessarily, a balance involved in the weighing process. In my view, it is not clear cut on either side, and conversely, there are reasonable arguments on both sides.
Certainly, the Court could not, and cannot, say definitively that there is no prospect of any change in the parenting Orders as now sought by the Father. That said, the history recounted multiple times here regarding, on the one hand, the long period of co-operation between the parties, and on the other, the troubling evidence contained in the police records, necessarily leads to the delicacy of the Court’s task if the matter was re-opened and the Final Orders re-visited.
This leads the Court to pose the perhaps more basic question as to whether there is any, more decisive consideration that will, as it were, tip the scales more one way of the other. In my view, there is. It arises this way.
During the hearing, the Court asked Counsel for the Mother about the Court’s “protective responsibilities” as it now arises under the new amendments to Part VII of the Act. The response was summarised in the submissions set out above in Section H of these reasons. In short, s.60B requires the Court to make Orders that are in the best interests of the child, but which includes a consideration of “ensuring their safety”. Similarly, s.60CC(2)(a) refers to the Court making orders that “promote the safety [of the child] from family violence, abuse, neglect or other harm”, in s.60CC(2)(e), the requirement is that the Court consider the benefit of the child having a relationship with both parents, and other people who are significant to the child, “where it is safe to do so.”
There is no suggestion that the child has been at any relevant risk while in the Father’s care, subject to the reservations already noted multiple times regarding the various other occasions when the child has not been present, and the Father has been intoxicated and the matters flowing from this. Likewise, there is the regularly noted (and largely not refuted) “inconsistency” and infrequency in the Father’s overnight time with the child over a number of years. These matters warrant the Court taking a more cautious and protective approach in the present matter.
Accepting that there are, as I have repeatedly said, reasonable arguments on both sides, in my view, having regard to “all of the circumstances,” there is insufficient change in circumstances to warrant the Court acceding to the Father’s Application. It should be dismissed. There will be a notation to the effect as noted above that in the light of (a) the parents having equal shared parental responsibility, and the terms of Order 2f made in December 2015, and (b) the parties long history of reaching agreement to make provision for X to spend extra time with his Father, the parties should consider arranging, perhaps every 3 months (or as otherwise agreed), a mediated co-parenting meeting to determine what parenting arrangements are best for X according to various needs, events, family and school functions as they arise.
Without binding the parties, who can bring any Application for costs as they think appropriate, as a general comment and observation, given how finely balanced and run the matter was, I would be rather disinclined to make any Order for costs other than for each party to pay his or her own costs. I will make that Order absent any Application for costs being made within 14 days.

I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 27 June 2024

File number(s):	SYC 5418 of 2023
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	27 June 2024
Catchwords:	FAMILY LAW – PARENTING – Father’s Application pursuant to s.65DAA to re-visit Final Orders made on an undefended basis in December 2015 when the child was two years old – long history of the Mother facilitating additional time between Father and son – Mother contends that the Father has been inconsistent and unreliable in spending overnight time with the child – while Father acknowledges a significant history of alcohol abuse but nothing in the last 18 months or thereabouts, no details were provided by the Father, whereas the Mother provided subpoenaed police records which show a very significant history of the Father being intoxicated, becoming physically aggressive and various assaults including significant dysregulation in engagements with his family – consideration of significant body of case law regarding Rice & Asplund in the light of statutory codification of the principle from that case – a form of codification of judicial discretion – Father brought no Application to vary or discharge the 2015 Orders until July 2023 – Father’s Application dismissed.
Legislation:	Family Law Act 1975 (Cth) s.60B, 60CC(2)(a) – (d), 65DAAA
Cases cited:	AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Baisman & Cartmill [2022] FedCFamC1A 36 Carriel v Lendrum (2015) 53 Fam LR 157 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 Katar & Sevan [2024] FedCFamC1A 49 Mahoney & Dieter [2020] FamCAFC 88 Marsden v Winch (2010) 42 Fam LR 1 Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654 NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 O’Brien & O’Brien [2017] FamCAFC 219 Phillips v Hansford (No.2) (2020) 60 Fam LR 160 Poisat & Poisat (2014) FLC 93-597 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 Shan & Prasad (2020) 61 Fam LR 440 SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295 Stern v Colli (2022) 65 Fam LR 548 Swenson & Brantley (No.2) [2020] FamCAFC 205 Tickner v Chapman (1995) 57 FCR 451 Walter & Walter [2016] FamCAFC 56 Geraldine van Bueren in The International Law on the Rights of the Child, (Dordrecht: Martinus Nijhoff Publishers, 1995) M. Freeman, The moral status of children: Essays on the Rights of the Child, (The Hague: Kluwer Law International, 1997) M. Jones and L.A Basser Marks, “United Nations Convention on the Rights of the Child” a blueprint for Australia’s children,” in M. Jones and L.A Basser Marks (eds.) Children on the Agenda: the rights of Australia’s children (Chippendale, NSW: Prospect Media Pty Ltd, 2001) J. Tobin, “The Development of Children’s Rights”, Chapter 2 in Children and the Law in Australia (2^nd Edition) (eds. L. Young, M.A. Kenny, G. Monahan) (Sydney: LexisNexis, 2017)
Division:	Division 2 Family Law
Number of paragraphs:	123
Date of last submission/s:	24 May 2024
Date of hearing:	24 May 2024
Counsel for the Applicant	Mr Longworth
Solicitor for the Applicant	Doumit Family Lawyers
Counsel for the Respondent	Ms Cantrall
Solicitor for the Respondent	ATW Family Law

SYC 5418 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR RADECKI Applicant
AND:	MS RADECKI Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	27 JUNE 2024

2015 Orders	Proposed 2024 Orders
School Terms	2 nights per fortnight	5 nights per fortnight
School Holidays	2015 Orders do not cater for this	½ of the school holidays
Christmas	2015 Orders do not cater for this	Alternative Christmas Day
Country B Christmas	Only in 2015 but not thereafter	Each year
Father’s Birthday	2015 Orders do not cater for this	4 hours, to occur each year
Mother’s Birthday	2015 Orders do not cater for this	4 hours, to occur each year
Telephone / Facetime Contact	No time specified obligation, including the time and duration of a call	Specific time (7pm – 7:30pm) each day
Attendance at Extra Curricular	2015 Orders do not cater for this	Father may attend extra-curricular activities