Reager and Coldham (No 2)
[2021] FCCA 1620
•16 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Reager & Coldham (No 2) [2021] FCCA 1620
File number(s): PAC 2234 of 2017 Judgment of: JUDGE NEWBRUN Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – parenting applications by mother – prior final parenting orders – mother’s applications for fresh parenting orders permitted pursuant to the rule in Rice & Asplund Legislation: Family Law Act 1975 (Cth), s 62G(2) Cases cited: Marsden & Winch [2009] FamCAFC 152
Rice and Asplund (1979) FLC 90-725
Trewitt & Brock [2021] FCCA 1255
Yapp & Wyndham [2021] FamCAFC 80
Number of paragraphs: 35 Date of last submission/s: 8 July 2021 Date of hearing: 8 July 2021 Place: Parramatta Solicitor for the Applicant: Mr Heazlewood Solicitor for the Respondent: Ms Rysiok Solicitor for the Independent Children's Lawyer: Mr Holmes ORDERS
PAC 2234 of 2017 BETWEEN: MR REAGER
Applicant
AND: MS COLDHAM
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
16 JULY 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That there has been a significant change in circumstances since the Court’s Final Orders of 17 February 2021 such that, acting in the best interests of the child, X born in 2010, the parties should be permitted to seek fresh parenting Orders in relation to the child.
2.Pursuant to section 62G(2) of the Family Law Act 1975 (Cth) (“the Act”) the parties and the children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 October 2021.
3.The Family Report shall deal with the following matters:
(a)Any views expressed by the child the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child with each of the child’s parents and with significant other persons;
(c)The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child has/have been living.
(e)The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child, including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child and of either of the child)’s parents and any other characteristics of the child that the reporter thinks are relevant.
(h)Each parent’s attitude to the child and to the responsibilities of parenthood.
(i)Any family violence involving the child or a member of the child’s family.
4.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child attends all appointments with the Family Consultant, as requested by the Family Consultant.
5.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
The Court directs that the preparation of the above Family Report be expedited.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Reager & Coldham (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN
INTRODUCTION
This is the determination of a preliminary or threshold issue relating to the rule in Rice and Asplund (1979) FLC 90-725. The subject child is X born in 2010.
On 17 February 2021, the Court made final consent parenting Orders providing, inter alia, that the child live with the Father (the Father lives on the Region H), and spend fortnightly time with the Mother (the Mother lives at Suburb M) two nights each fortnight during school term times and more extensive time with the Mother during school holidays.
The child has been usually attending school on the Region H whilst living in the Father’s primary care. However on or about 7 May 2021, the child remained in the Mother’s primary care following having spent time with her and thereafter the Mother unilaterally enrolled the child at Suburb M Public School.
Recently, on 19 May 2021, the Father filed an Initiating Application seeking, as final Orders, a Recovery Order in relation to the child. At that time, the child was still in the primary care of the Mother.
On 26 May 2021, being the first return date of the Father’s above Initiating Application, the Court, by consent, made an interim Order that the Mother return the child to the Father’s home by 1 PM on 27 May 2021. A further direction was made at that time that should the parties not notify the Registrar that that Recovery Order had been effected, the matter was listed for directions before the Court on 27 May 2021.
The above consent interim Order was not effected, the child having refused to return to the Father’s primary care on 27 May 2021. On 27 May 2021 the Court made directions, inter alia, that the Mother file and serve her Response, Affidavit and any Notice of Risk; an ICL be appointed; and the parties and child attend a Child Inclusive Conference which in fact occurred on 6 July 2021.
On 15 June 2021, the Mother filed a Response (to the Father’s Initiating Application) in which she sought interim parenting Orders, inter alia, that the Court’s Orders of 17 February 2021 be discharged; that the child live with the Mother; and that until such time that the child feels comfortable, the child spend time with the Father from 1 PM to 3 PM each alternate Saturday in the presence of the Mother.
On 16 June 2021, the child came back into the primary care of the Father, after the Father collected the child from the Suburb M School. The child has remained in the Father’s primary care since that time and has not spent his usual time with the Mother since then.
Then on 22 June 2021, the Mother filed an Application in a Case seeking, inter alia, an urgent Recovery Order in relation to the child.
On 8 July 2021, the Mother’s Application in a Case came before the Court for the first time. The Court heard submissions from the parties in relation to the determination of a preliminary or threshold issue relating to the rule in Rice and Asplund (1979) FLC 90-725. In the view of the Court, such determination was required in view of the existence of the final parenting Orders made on 17 February 2021 that the child live with the Father, and because the Mother, through her Response and Application in a Case, was seeking parenting Orders, inter alia, that the child now live with her, and that a Recovery Order be made in the Mother’s favour accordingly.
The Mother submitted that there had been a significant change in circumstances since the Orders of 17 February 2021 such that her fresh parenting applications should be determined by the Court despite those earlier Orders. The Father submitted to the contrary. The ICL submitted, inter alia, that the views of the child needed to be ascertained and considered through a proper family report, and in this regard submitted that there was some uncertainty, from the material presently before the Court, including the Child Inclusive Conference Memorandum, as to whether the Mother might be influencing the child’s views.
MATERIAL RELIED UPON
The Mother relied upon the following material:
(a)Application in a Case filed 22 June 2021;
(b)Affidavits of the Mother filed 15 June 2021, and 21 June 2021;
(c)Notice of Child Abuse, Family Violence or Risk filed 21 June 2021;
(d)Child Inclusive Conference Memorandum to Court dated 6 July 2021.
The Father relied upon the following material:
(a)Initiating Application filed 19 May 2021;
(b)Affidavits of the Father filed 17 May 2021, and 6 July 2021;
(c)Notice of Child Abuse, Family Violence or Risk filed 17 May 2021.
The Court indicated to the parties and ICL at the threshold hearing that it would consider the contents of the earlier Child Inclusive Conference Memorandum dated 11 June 2020, particularly noting that that Memorandum had indicated that the child had not been interviewed for the purpose of that Memorandum. Neither party nor ICL objected to this course.
Again, the Court refers to its interim parenting judgment of 11 September 2020.
LEGAL PRINCIPLES
Terry J of this Court in Trewitt & Brock [2021] FCCA 1255 stated, inter alia, at paragraphs 33 to 36:
33. There has been copious previous litigation in this matter and in the 1979 decision of Rice & Asplund Justice Evatt said as follows about the approach the Court should take when an application was made for fresh parenting Orders:
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier Order and to the reasons for and the material on which the Order was based. It should not lightly entertain an application to reverse an earlier custody Order. To do so would be to invite endless litigation for, as counsel for the appellant submitted, change is an ever present factor in human affairs.
Therefore, the Court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step. Some new factor arising, or at any rate some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require a Court to consider afresh how the welfare of the children should best be served. These principles apply whether the original Order was made by consent or after a contested hearing. The way they apply, and the factors which will justify the Court in reviewing a custody Order, will vary from case to case.
34. This became known as the Rule in Rice & Asplund and it is frequently applied at a preliminary stage to determine whether an application should be permitted to proceed, potentially to a full hearing.
35. In Marsden & Winch the Full Court was at pains to emphasise that even at this stage the paramount consideration was the best interests of the children. Referring to Warnick J’s decision in SPS & PLS the Full Court said as follows:
Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
…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.
36.The Full Court went on to discuss the matters the Court should consider in determining whether a fresh application should be allowed to proceed and said as follows:
In Miller & Harrington (supra) the Court posed the question:
Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
(this Court’s italics)
In Yapp & Wyndham [2021] FamCAFC 80, the Full Court of the Family Court of Australia, stated, inter alia:
11. This ground asserts a denial of natural justice on a number of bases. However, that claim is misconceived, and fails to recognise that it is within the discretion of a trial judge to determine the means by which the rule in Rice and Asplund is applied, and that it was open to his Honour to determine the application before him as a threshold issue (Poisat & Poisat (2014) FLC 93-597 at [45] and [46]). Thus, his Honour was not in error by not permitting cross-examination, by not conducting a final hearing, and by making Orders on an interim basis without hearing evidence. Indeed, his Honour’s Orders were not interim Orders.
…
15. In relation to the complaint that his Honour failed to consider the “Child’s attachment to the Father”, and “the ability to develop a more meaningful relationship”, that highlights the failure by the Father and his legal representatives to appreciate the nature of a threshold or preliminary hearing, and more particularly, the question(s) that his Honour was required to address in applying the rule in Rice and Asplund. I will say more about this shortly, but for now, the point is, that they are matters for a full hearing if the threshold hurdle is overcome. Again, it is not an issue of a denial of natural justice.
16. That leaves the complaint that his Honour failed to consider whether the Father’s application was “reasonably practicable”. Again though, that is not an issue for the preliminary hearing, and would only become relevant if it was determined that there should be a full hearing reopening the parenting issues. Section 65DAA of the Family Law Act 1975 (Cth) (“the Act”) might then be engaged at that hearing.
…
18. This a ground which is difficult to understand, but being as generous as I can, it may be a challenge to his Honour’s finding that the alleged changes in the circumstances were insufficient to warrant reopening the case ([13]).
19. If it can be read as such, then unlike Ground 2, and as will be demonstrated shortly, unlike Grounds 4 and 5, the Father and his legal representatives may have finally recognised what it is that his Honour had to address in applying the rule in Rice and Asplund. That rule requires a trial judge to determine whether, assuming the evidence of the applicant is accepted, there is a sufficient change of circumstances to justify embarking on a full hearing (SPS and PLS (2008) FLC 93-363 at [81]). In that context the ultimate issue is whether it is in the best interests of the child to become embroiled in further litigation (Carriel & Lendrum (2015) FLC 93-640 at [57]).
…
31. First, it is readily apparent that the Father and his legal representatives have no, or limited understanding, of how the rule in Rice and Asplund is applied, and in particular, that it was within the discretion of the primary judge whether the application of the rule was to be addressed as a threshold issue, or as part of a final hearing. Further, from the written summary of argument and the oral submissions made on behalf of the Father, there was no recognition of the difference between a preliminary hearing and a final hearing, and much of what was put to the Court was irrelevant.
32. Secondly, there was no recognition by the Father or his legal representatives that when applying the rule in Rice and Asplund, it is unnecessary to address in any detail, or even at all, the factors for determining what is in a child’s best interests contained in s 60CC of the Act (Carriel & Lendrum at [49]-[58]).
(this Court’s italics)
DISCUSSION
Prior to about late 2019, and since about May 2017, the child, according to the Father had been living in an equal time arrangement between the parties in Western Sydney, or a 60%/40% arrangement according to the Mother (see the Child Inclusive Conference Memorandum dated 11 June 2020). Then in late 2019, the child came into the Father’s primary care and which has predominantly continued to date.
Prior to the above final consent parenting Orders being made on 17 February 2021, there had been significant interim parenting proceedings between the parties, in particular relating to a risk issue relating to the Mother and her partner; the Mother’s partner had been convicted of drug supply from the garage of the premises where the Mother and her partner resided. In the Child Inclusive Conference Memorandum of 11 June 2020 under the heading “Risk Factors” it was stated:
•Mr Reager said that his main concern regarding X’s safety is Mr D. He said that Mr D is, or was, a member of the N Motor Cycle Gang and he has concerns about who he associates with, and therefore who X may come into contact with.
•Mr Reager said that Mr D has pending criminal matters regarding drug supply charges, which were supplied from the home garage. Mr Reager raised concerns that X could have accessed the drugs and/or been exposed to drug use/drug supply. He said that he does not think that Ms Coldham could have not been aware of Mr D’s activities. Mr Reager said that X has not raised any concerns about Mr D with him, although he does not think that they had a close relationship. He said that he will continue to consider Mr D a risk to X’s safety because of his associations with the N Motorcycle Gang and the drug supply charges.
•Mr Reager said that he has not had any other concerns about X’s safety or well-being with Ms Coldham, but considers the issues relating to Mr D are so risky, that X is not safe to have any exposure to him under any circumstances.
(this Court’s italics)
The Court refers to the Court’s judgment of 11 September 2020, including in relation to the procedural history of the parties’ parenting proceedings in this Court.
The Father submitted, inter alia, that the Father was content for the child to continue to spend time with the mother but had no confidence that the mother would cause the child to be returned to the father having spent time with her. The Father submitted that in such circumstances it may well be appropriate for the child to spend supervised time with the mother, and in this regard, the father would be prepared to pay for supervision costs, and indicated that supervised time occurring two hours on alternate Sundays might be an appropriate Order.
The Mother submitted that there had been a significant change in circumstances since the Court’s Orders of 17 February 2021 by reason of the child having allegedly told her, since coming into the Father’s primary care in late 2019, and in particular in May and June 2021, that he wanted to live with the Mother, that he had observed and been subjected to certain adverse behaviour in the Father’s household, and that the child had refused to return to the Father’s primary care in May 2021 culminating in incidents at changeover on 16 and 27 May 2021 wherein the child, allegedly in a distressed state, physically refused to return to the Father’s primary care.
In relation to the child’s alleged statements made to the Mother relating to wanting to live with her, and not wanting to return to live with the Father on a primary basis, and his reasons in relation thereto (including alleged adverse behaviour by the Father and his partner), the Court refers to, and takes into account on this Rice and Asplund issue, the Mother’s aforesaid Affidavits, and the contents of the Child Inclusive Conference Memorandum dated 6 July 2021, in particular at paragraphs 8, 15, 16, 17, 21, 29, 35, 36, 37, 42, 43, 45, and 46.
The Mother submits that the child’s alleged statements to her to live with the Mother and not return to the Father’s primary care are consistent with the content of the Child Inclusive Conference Memorandum dated 6 July 2021.
The Court now sets out the above referred relevant paragraphs of the Child Inclusive Conference Memorandum dated 6 July 2021.
In that Memorandum it was stated, inter alia:
8. Ms Coldham said that X has reported one incident recently, when Mr Reager was intoxicated and pushed his partner, Ms O causing Ms O to fall and hit her head.
14. Ms Coldham said that she had consented to X living primarily with Mr Reager because Mr Reager told her he would consent to Mr D being present during X’s time with her, if she agreed to this arrangement. She said that there were no drugs found in her home when Mr D was arrested, only in the garage.
15. Ms Coldham expressed concern that Mr Reager may become aggressive towards or around X, if he has been drinking alcohol. Apart from the alleged incident of violence between perpetrated by Mr Reager towards Ms O, as discussed above, she did not provide specific examples. She stated that Mr Reager’s jaw was broken in an altercation in front of his home, but did not provide further information regarding this.
16. Ms Coldham stated that X has said that he does not feel safe in Mr Reager’s care. She said that he has told her that he cries himself to sleep when with Mr Reager and that he was having dreams, when in his father’s care, that he was kidnapped or left alone. She alleged that X and the other children in Mr Reager’s household are left alone at times in the afternoon, while Mr Reager and Ms O work. She said that when X has told Mr Reager that he felt scared he has been told to “suck it up”.
17. Ms Coldham said that Mr Reager has told X to lie and say that Mr Reager was no longer drinking alcohol. She could not explain why Mr Reager would have raised this, because no concerns regarding Mr Reager’s use of alcohol had been raised at the time. She said that once, X reported that Mr Reager had tried to throw him off the second story balcony into the swimming pool when intoxicated, and would behave in a reckless manner when drunk.
21. Ms Coldham said that X has recently indicated that Mr Reager’s use of alcohol has increased, but could not provide further details of this.
29.X (aged 10 years 2 months) appeared to speak freely during his interview, but appeared nervous and distressed when discussing his parenting arrangements.
30. X spoke about school and said he enjoys school, and enjoys playing sport and doing math and English. He clarified he enjoys writing, but does not like reading. He said that he plays soccer or football in the playground, and he named a number of good friends he likes to play with.
31. X said that, at Mr Reager’s house, he likes to play in the backyard, kicking his football and that he usually plays with Ms O’s son, Nate. He said that he also likes to go out, and that they have dinner each Tuesday at his cousin’s house. He said that his cousin is close to him in age and they play together.
32. X described Mr Reager as a “cool Dad” and said that he helps Mr Reager work on cars and trucks, or fix the fence, so that the dog cannot escape. He said that he sometimes helps Ms O with cooking, but said that she is usually busy working.
33. X said that when he is in Ms Coldham’s home, he likes to play with his younger siblings and play on the trampoline, and the PlayStation.
34. X described Ms Coldham as nice, loving, cool and helpful. He said that he likes to help her cook dinner and that in summer they swim in the pool together. He also described going to his cousin’s house when with her, and visiting other friends and family. He said that sometimes he helps Mr D “do stuff”, but said that he does not really spend much time with Mr D.
35. X explained that he initially lived in a “fifty-fifty” arrangement with each of his parents, before moving to live primarily with Mr Reager. He described living primarily with Mr Reager as “a bit sucky”, but said he has to “deal with it”. He explained that he misses a lot of family time living so far away from Sydney and that he misses watching his younger siblings grow up. He appeared to be close to tears when discussing this. When asked about the good aspects of living with Mr Reager, X said it is fun.
36. X discussed recent changes to his parenting arrangements, saying that he was with Mr Reager, then went back and forth between Mr Reager and Ms Coldham, until “they (Ms Coldham) said for me to stay at Mum’s”. He then described Mr Reager picking him up unexpectedly from school and retaining him in his care. X appeared distressed when discussing this, and said he had been scared when Mr Reager picked him up, because it was unexpected. He said that he was only scared at the time of the incident and is no longer scared.
37. X said that if he could choose his parenting arrangement he would like Mr Reager to move back to Sydney, so that he could spend half of his time with each parent again. He said that he was previously worried that Mr Reager would never move back to Sydney and that things would never be “normal”. He said that he now believes things will be okay no matter what happens. However, he continued to appear distressed when saying this. He said that if he was able to choose where he lives, he would live at Ms Coldham’s house, because he is used to it, and he is closer to more family members, including paternal family members.
38. X said that he has expressed his preferences to both of his parents.
39. Each parent said that X is generally a happy child. Each parent said that he achieves well at school and gets along with his peers.
40. Mr Reager said that X loves motorbikes, bikes and going to the skate park. He said that X is passionate about football and that he and X get along very well. He described his relationship with X as “good”. He said that X is an affectionate child, including towards Ms O.
41. Ms Coldham described X as “well-mannered” and said that X wants to be loved and accepted. However, she said that he can be opinionated and that he does get frustrated easily at times.
42. Ms Coldham said that her relationship with X is “good” and that she reassures him when he is upset. She said that she takes X to the movies and that they cook together. Ms Coldham said that X has developed some separation anxiety in regards to leaving her, since Court proceedings commenced.
43. X spoke in an articulate and mature manner regarding his views. It appears that he is distressed by the current arrangements, specifically in living away from Sydney and from his extended family. He spoke positively about his relationship with each of his parents and did not express fear of either parent. It is not possible to determine from this assessment whether X’s views are based on his own experiences or have been influenced by either parent. At times he appeared to be stating what he believed was expected of him, rather than his actual feelings, such as stating that things would be okay no matter what parenting arrangements are put in place, whilst appearing very distressed.
45. Whether, or not Mr Reager’s use of alcohol presents a risk of harm to X may be a matter for Court determination. Carbohydrate-Deficient Transferrin (CDT) testing may assist in determining chronic, regular excessive alcohol intake. If validity is found to concerns regarding the impact of Mr Reager’s use of alcohol on X, it is recommended that Mr Reager refrain drinking alcohol prior to or whilst X is in his care.
46. Ms Coldham’s allegations that Mr Reager has perpetrated family violence, both towards her and towards Ms O may be a matter for Court determination. If Mr Reager has behaved in a coercive manner towards Ms Coldham, either during their relationship or after their separation, this is likely to be detrimental to the co-parenting relationship. If X has been exposed to violence, or to a coercive dynamic perpetrated by Mr Reager this is likely to be significantly detrimental to X’s wellbeing.
The Court takes into account, in the determination of this threshold Rice and Asplund issue, that the child was not interviewed at the Child Inclusive Conference held on 11 June 2020, and no family report has ever been prepared for this family. The first time that this child’s views have been formally sought was at the Child Inclusive Conference held on 2 July 2021.
The Court further takes into account that the final parenting Orders made on 17 February 2021 were made by consent; there was no contested final hearing held in relation to those Orders.
The Court further takes into account the Mother’s statements to the family consultant on 2 July 2021 that she had consented to the child living primarily with the Father because the Father had allegedly told her that he would consent to Mr D being present during the child’s time with her if she agreed with this arrangement. In this context, the Court refers to Notation A of the Orders of 17 February 2021 providing:
A. The parties noted that the Mother’s husband, Mr D has served prison time for drug-related offences and has recently been released on parole. Accordingly, the Mother gives an Undertaking to the Court that should she become aware that Mr D is re-engaging in criminal activities, breaching his parole or is in any other way placing X in harm, and she will immediately inform the Father and return X to the Father’s care.
The Court further takes into account, in the determination of this threshold Rice and Asplund issue:
(a)the child’s refusal to return to the Father’s primary care on 16 and 27 May 2021, and his alleged emotional distress on those occasions.
(b)the child’s observed emotional distress during the Child Inclusive Conference on 2 July 2021 in relation to discussion of parenting arrangements.
The Court further takes into account, in relation to the child’s emotional distress, referred to above, the Father’s own evidence that he had become increasingly concerned for the child’s mental health whilst the child was being retained from him and that he decided to book an appointment for the child to see his GP and which occurred. The Court takes into account that the Father caused the child to attend psychological therapy with a clinical psychologist on 24 June 2021 with further appointments booked for 1 and 8 July 2021. The Court takes into account that at the consultation on 24 June 2021, the child reported feeling generally nervous at times, and that the Father and his partner had reported the child had a fear of being kidnapped; the psychologist had stated that the parent Spence Child Anxiety Score completed by them had indicated elevated scores in the areas of social anxiety, obsessive compulsive and panic symptoms albeit none of those scores fell within a clinical range.
By reference to the aforesaid decision of the Full Court in Marsden & Winch [2009] FamCAFC 152, the Court is of the view that the Mother has established a prima facie case of changed circumstances since the Court’s Orders of 17 February 2021, in particular because of the child’s views and his reasons therefor (again, the Court refers to the Mother’s aforesaid Affidavits, and the contents of the Child Inclusive Conference Memorandum dated 6 July 2021), including his refusal to return into the Father’s primary care on 16 and 27 May 2021, his emotional distress on those dates, the child’s observed emotional distress by the family consultant at the Child Inclusive Conference on 2 July 2021 when discussing parenting arrangements, and the Father’s evidence relating to the child’s mental health including consultation with a clinical psychologist.
And further, the Court considers that the above prima facie case of changed circumstances is significant and a sufficient change in circumstances such that it will be in the best interests of the child to permit the parties to seek fresh parenting Orders. In this regard, and again, the Court regards it as particularly important that:
(a)The child’s views were not sought for the Child Inclusive Conference held on 11 June 2020, nor were the child’s views the subject of any Family Report prior to the final Orders of 17 February 2021;
(b)The child has allegedly made numerous statements to the Mother, in particular since the Court’s Orders of 17 February 2021, that he wishes to live with the Mother and no longer live in the Father’s primary care, giving reasons;
(c)The child verbally and physically refused to return into the Father’s primary care on 16 and 27 May 2021, and was allegedly emotionally distressed on those occasions, and the Court also refers to the child’s observed emotional distress by the family consultant on 2 July 2021 when discussing parenting arrangements;
(d)The child has independently expressed his views to the Family Consultant 2 July 2021 that he wishes to live with the Mother, giving reasons;
(e)The Father’s evidence relating to the child’s mental health including consultation with a clinical psychologist.
In the view of the Court, there is a real prospect if not a likelihood of Orders being varied in a significant way, as a result of a new hearing, taking into account the Court’s above discussions. The Court is of the view that such real prospect if not likelihood outweighs the potential detriment to the child caused by fresh litigation.
Accordingly, acting in the best interests of the child, the Court proposes to make the following Orders:
1.That there has been a significant change in circumstances since the Court’s Final Orders of 17 February 2021 such that, acting in the best interests of the child, X born in 2010, the parties should be permitted to seek fresh parenting Orders in relation to the child.
2.Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 October 2021.
3.The Family Report shall deal with the following matters:
(a)Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c)The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent.
(d)The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the child(ren) has/have been living.
(e)The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant.
(h)Each parent’s attitude to the child(ren) and to the responsibilities of parenthood.
(i)Any family violence involving the child(ren) or a member of the child(ren)’s family.
4.The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
5.The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
6.The Court directs that the preparation of the above Family Report be expedited.
7.The Court reserves its decision as to the timing of the hearing of the parties’ respective applications seeking recovery and other Orders.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 16 July 2021
0
3
1