Robinson and Farthing

FAMILY COURT OF AUSTRALIA

ROBINSON & FARTHING

[2013] FamCA 634

FAMILY LAW – Parenting: application by respondent to dismiss variation application of wife using Rice and Asplund principles.
FAMILY LAW – Application of wife dismissed.

Family Law Act 1975 (Cth)

Freeman and Freeman (1987) FLC 91-857
Marsden v Winch (2009) 42 Fam LR 1
Rice and Asplund (1979) FLC 90-725
Zabaneh and Zabaneh (1986) FLC 91-766

APPLICANT:

Ms Robinson

RESPONDENT:

Mr Farthing

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

8085

2010

DATE DELIVERED:

23 August 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

16 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glass

SOLICITOR FOR THE APPLICANT:

Alan Shnider & Co

COUNSEL FOR THE RESPONDENT:

Ms Brennan

SOLICITOR FOR THE RESPONDENT:

Richard Calley Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That save as to issues of costs, the wife's application filed 29 April 2013 is dismissed.
That save as to issues of costs, the husband's response filed 18 June 2012 is dismissed.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 20 September 2013 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 4 October 2013 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Robinson & Farthing has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8085 of 2010

Ms Robinson

Applicant

And

Mr Farthing

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On 18 November 2011, Dessau J made final parenting orders between Mr Farthing (the husband) and Ms Robinson (the wife). The orders were extensive and importantly, made at the request of the parties. In addition to the husband and wife, the minutes of the parenting agreement were “signed off” by an Independent Children’s Lawyer. Dessau J was satisfied that the orders should be made.
It was also significant that those final orders were achieved after a number of days of negotiation.
The orders revolve around the parties’ only child D who is almost 11 years of age.
I will not set out the orders in detail but the following is sufficient for my purposes:
·    the husband and the wife have equal shared parental responsibility;
·    the child lives with the wife except for the times with the husband set out below;
·    the child spends time with the husband from after school on Thursday to the commencement of school on the following Tuesday in each alternate week;
·    the child spends time with the husband:
(i)For one half of the term 1 and 3 school terms;
(ii)For the whole of the term 2 holidays in alternate years;
(iii)For one half of the summer holidays;
(iv)For various times on special days.
It is also significant in this present case that the orders provided for the following:
·    The husband was not required to attend the child’s sport T events or training programs during school holidays except in certain nominated circumstances;
·    That the child did not have to attend sport T before certain specified times during particular religious holidays;
·    That the child be “at liberty” to telephone her parents “at all reasonable times” and the parents were to provide a “functioning mobile telephone at their premises for use by the child;
·    That each party “be entitled” to telephone the child “for a reasonable period” each Saturday and Monday between specified hours;
On order which seemed to have caused considerable consternation was this:
That for the purposes of changeovers, where they do not take place at school or sport T, the wife shall collect the child from the boundary of the property of the husband’s residence at the commencement of her time with [the child] and the husband shall collect [the child] from the boundary of the property of the wife’s residence at the conclusion thereof.
A variety of other prescriptive orders was also made and an objective analysis of the orders generally would indicate that the parties required everything about their lives and that of the child to be covered because there was little they could agree on. The most important order was that related to equal shared parental responsibility to which they each agreed.
The wife now wishes to vary the orders and the husband opposes any change.
It was the position of the husband, supported by the Independent Children’s Lawyer that there was no evidence presented to the Court that would justify a finding that there has been a significant change of circumstances since the orders were made. With both of those submissions, I agree for the reasons that follow.
Before examining the factual premises for the asserted change of circumstances, two important things must be said. First, all parties were represented by counsel. Secondly, all parties agreed that the wife’s application could and should, be dealt with on submissions taking into account the evidence in the affidavit material each relied upon.
Despite the fact that the final orders were only made on 18 November 2011, the wife made an application on 16 May 2012. She sought orders inter alia that:
·    she have sole parental responsibility;
·    each parent be allowed to telephone the child for a reasonable period of at least 5 minutes each Friday, Saturday, Monday and Wednesday;
·    the mother be allowed to telephone the child for a period 10 minutes before and after each sport T session or competition;
·    that all changeovers, if not at gym or school, occur at the former matrimonial home;
·    that the mother be permitted to take the child to all sport T competitions in the father’s time; and
·    some other matters associated with the child’s activities that I do not need to specify.
The mother’s application seems to have been delayed when she filed a contravention application on 31 May 2012. For reasons given at the time, her contravention application was dismissed. It is sufficient to say that the application was wound up in the dispute about time, changeover and sport T.
In August 2012, the wife filed an application in a case seeking orders that the father facilitate specific sport T competition and again, an order for a change of the changeover provisions. She also sought a variation of the school holiday times.
A minor variation of the then extant parenting orders was made by consent but otherwise the interim application was dismissed.
The wife’s substantive application came before Bennett J on 16 April 2013. Her Honour listed the case for trial on 15 and 16 August 2013 on the discrete question of whether that had been a sufficient change of circumstances to “warrant further litigation”.
On 9 May 2013, Bennett J held a telephone link and ordered that a mention set for 21 June be vacated and that the case be mentioned on 2 August. A timetable for the filing of affidavit material was then made. Her Honour then ordered pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) that a family consultant prepare an issues assessment to discuss matters about the parents’ ability to implement any parenting orders. According to the parties, the designated family consultant construed the order such as she was required to exclude any interview with the child and indeed that is what occurred. Absent any such interview, there was little objective evidence about what the child thought nor was it possible to put some of the many things the parents were saying about her and, each other, to the child.
On 2 August 2013, the matter was again listed before Bennett J. at which hearing, her Honour recused herself and adjourned the matter for allocation to another judge.
Because it was suggested to me that there was some urgency about enrolling the child in a particular school and that fees had to be paid before the end of this year for the school year 2015, I listed it urgently before me only to ascertain that the immediate issue was whether there was a basis to allow the wife to proceed with her application bearing in mind the husband’s argument, supported by the Independent Children’s Lawyer, that the application should be dismissed.
Thus, the litigation had a tortured history up until 2011 when it was finalised and since then, not much has changed.
It was said that this was about the application of the rule in Rice and Asplund (1979) FLC 90-725. Whilst there is no “rule” as such, it is clear that this Court has traditionally taken the view that once orders are made, a court “should not lightly entertain” another application to reverse earlier parenting orders. The cases have often focused on a substantial change of the residential situation of a child but the approach can and should be applied where the proposed alterations would have a significant change in a child’s life. Those changes could, as here, include such things as parental responsibility arguments, holidays, extra-curricular activities and even how changeovers of a child occur. In respect of the latter, if a changeover is impacting on the welfare of a child or it is plainly not working, then the original orders themselves would not be working in the child’s best interests and the so called “rule” becomes irrelevant. Those types of case have been considered in the context of the principle I am considering (see Zabaneh and Zabaneh (1986) FLC 91-766).
The question is whether the proposed change is significant to the life of the child or simply a tinkering with the machinery provisions. The obvious rationale is to avoid endless litigation because of its impact upon the child.
It is obvious that change is constant in the lives of children but what is significant is whether the orders are working or not. If parties have equal shared parental responsibility, the law expects them to be responsible and child-focused enough to work out what is appropriate for their children. Indeed, in respect of long term major issues concerning their child’s welfare and development, the law expects parents to be able to consult with one another and come to consensus even if they cannot necessarily communicate in a normal or civil way. After all, this is their child. Thus, normal childhood changes must be expected and the law expects that parents will make a concerted effort to put their child’s interests first. Where they cannot, there is little choice but for them to resort to litigation but one might then ask whether it is appropriate for them to have equal shared parental responsibility. That is exactly what this case seems to be about.
There is little doubt that ongoing litigation has unfortunate if not adverse effects on children. Many cases, as here, are really cases about the conflictual nature of the parental relationship and children are affected. Children cannot be immune from the fact that their parents are in a litigious mode and that money is being spent on cases and time is lost from otherwise productive activity. Children in parenting cases are brought into interviews with social scientists who ask for their views not only about what they think is important to them but also what occurred factually between their parents.
In Freeman and Freeman (1987) FLC 91-857 Strauss J said:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. …The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …
That 1987 decision was obviously not lost of the legislature because in s 69ZN of the Act, courts have been mandated to follow principles for conducting child-related proceedings and s 69ZN(3) provides:
The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
The Rice v Asplund concept has been considered and followed in a variety of authorative decisions such as Marsden v Winch (2009) 42 Fam LR 1. There, the Full Court (Bryant CJ, Finn and Cronin JJ) said:
48.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49.However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
Additionally, the Full Court said:
55. Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule in Rice to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.
56. In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. …
If this so called “rule” is invoked, 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.
Because of s 69ZN(3), if requested to undertake an assessment, as I am here, the principles as to the approach set out above must be contemplated.
I turn then to what this case is really all about.
Counsel for the wife helpfully set out the five issues which were said to justify a submission that until the proper forensic testing of the mother’s evidence, a dismissal of her application to reconsider the orders would not meet the child’s best interests. The five issues were as follows:
·    The child is now exposed to parental conflict at changeover by virtue of the present orders;
·    There is a lack of communication between the child and her mother during the time the child is with her father thereby warranting a reconsideration of the orders;
·    The lack of communication between the parents is having an impact on decision-making such as to make equal shared parental responsibility unworkable;
·    The father’s lack of support for the child’s sport T by the father justifies an alteration of the orders;
·    There are particular views of the child (particularly about spending time with her father in February 2013) which justify a revisitation of the time allocated under the orders.
The evidence of each party and their respective witnesses has been taken into account and read but so also has the Family Consultant’s assessment which, for the reasons earlier mentioned, was of limited value because it provided no objective indication of the child’s views.
The first issue related to the changeovers. This seems to have reared its head because of the contravention proceedings earlier mentioned. Rather than remain at the property boundary, the mother went to the father’s front door, banged on a glass window which ultimately broke. The child was described as frightened by what happened and ultimately went into her mother’s care later than the time stipulated under the order.
In September 2012, another confrontation occurred but this time between a man who came to collect the child and the husband. The wife’s position was that the husband knew the man but he said he did not. It seemed agreed that the child knew the man. In my view, none of that matters. It is starkly odd that the wife would send a person to collect the child without letting the father know who this person was, leaving aside the question of whether there was any agreement. It seems testosterone took over and there was chest-pushing in front of the child. That was hardly responsible parenting or adult behaviour in front of an intelligent but vulnerable child and one who had been exposed to conflict for some considerable time.
There is little doubt that I can find that the incident occurred but is that a basis to alter the orders?
The wife’s position was that she would seek orders that reversed the current orders. That seemed to be inconsistent with the stated position in the original application she filed in 2012 but like most things in this case, very little is settled.
Counsel for the husband submitted that this issue was relatively simple. If the wife complied with the orders of the Court (and she did not when the contravention dispute arose), there would not be an issue. The extant orders provide for the parents not to come into contact with one another. Bearing in mind that these orders were negotiated with a view to the avoidance of the conflictual nature of the parental relationship, the drafting made sense.
Counsel for the Independent Children’s Lawyer agreed with the submission of the husband. She highlighted that the problem that gave rise to this issue had been precipitated by the wife. She submitted that if one looked at what psychiatrist Dr E said in the earlier substantive proceedings, one would find that he thought the husband was “besieged”. Counsel submitted that the orders were prescriptive for a very good reason and what was being put by the wife would not resolve the dilemma.

Because of the matters that follow about the application of the law, I agree with both counsel for the husband and the Independent Children’s Lawyer on this issue. I find that there is no reason to re-litigate the changeover but rather it would be productive and indeed, in the child’s best interests, if the wife complied with the orders.
The second issue concerned what the wife perceived as the difficulty of the child communicating with her whilst in the husband’s care.
Much of the wife’s complaint arises from what she said the child told her and absent an interview between the family consultant and the child, there is no objective and independent evidence to indicate this is a problem. The wife pointed to the last summer holiday period where it was said that the child’s telephone was removed from her in the last part of the holiday after speaking to her mother twice and sometimes more, per day. When the husband found the child’s telephone, the calls ceased.
In a curious piece of evidence that did not entirely seem to fit with what was going on, the wife pointed to a conversation between the child and a police officer about an intervention order. The child was said to have mentioned that her father said she could not ring her mother during his time. Counsel for the Independent Children’s Lawyer questioned what the child was doing speaking to a police officer about these things but in this conflictual family, it seems now hardly surprising even if it is sad.
I asked counsel for the wife to explain why there was such a significant amount of telephone contact and what its relevance was to the proceedings brought by the wife seeking an extended or varied amount of time from the 2011 orders. He replied that as an example, the wife argued that the child will soon enter puberty and will want to speak to her mother. The wife’s evidence was that she had no confidence that the father would deal with those sensitive issues and indeed, the child had expressed concern about speaking to her father. Absent a comprehensive discussion of that in a family report, I am not convinced the example is a good one.
Counsel for the husband pointed to the evidence to show that the orders required a telephone to be at the parents’ respective residences and there was one in the husband’s house. She submitted that his evidence showed that he told the child of the telephone’s presence and that she could use it to ring her mother. The husband’s position was that the child exercises the election whether or not to telephone. Absent some objective evidence that the child is distressed about an inability to make calls or some evidence that puberty is going to trouble her, all otherwise suggests there is a good relationship between father and daughter. That has not always been necessarily so but since March this year, there is no evidence of complaint.
Counsel for the Independent Children’s Lawyer observed that all of the evidence pointed to the child being an intelligent child who is well able to choose what she wishes to do about communicating.
The orders in 2011 set out the regime of designated time. They provide for flexibility if the child wanted it. It was submitted by counsel for the Independent Children’s Lawyer that this application was really about the mother’s needs. It is hard not to draw that conclusion on all of the evidence that the mother presented.
I find therefore that the basis of the 2011 orders remains current and effective.
The third issue concerns the lack of ability of the parents to communicate notwithstanding they have equal shared parental responsibility.
Counsel for the wife pointed out that decisions cannot be made because the husband will not talk to the wife nor will he respond to her electronic communications. There is no “default” position from the wife’s perspective to resolve any impasses. The husband has said in his material that he will not deal with the wife but having regard to what Dr E said, perhaps that is not surprising. Counsel for the wife pointed also to the husband’s position that there was an intervention order in place precluding contact between the parties. Thus, it was submitted, there was every reason for the wife to pursue sole parental responsibility.
The wife’s position was that there were events that required communication. She referred to the future religious celebrations and the determination of any schooling problems. There has been what was described as a medical problem.
Lack of ability to communicate was said to give rise to the prospect that, on medical issues, the child may not receive appropriate treatment. What justified that assertion by the wife was that in 2012, the child had an accident in a sport T session. She was in the father’s care. The father’s evidence was that there was a nurse present who advised that icing of the foot was appropriate. Later, when the child complained about the injury, he sought medical assistance. He then said he informed the wife “straight away”. The parties had a very different view about how serious it was and its consequences. The wife wanted a copy of the x-ray that the husband had obtained but he refused to provide it. There was little communication about the injury but then again, that is understandable having regard to the way each party suspiciously viewed the other. It is not necessary for me to make any finding about that incident save that I agree with the Independent Children’s Lawyer that this was the very sort of complaint made prior to the final orders being made yet each party, and particularly the wife, chose to ask the Court for an order for equal shared parenting responsibility.
I find that the inability of the parties to communicate is not new. Importantly, it is helpful to reflect on what is required by s 65DAC bearing in mind what the parties sought in 2011. It reads:
(1)      This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)      The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)      The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
Here, the parties have that shared responsibility but it is in respect of s 65DAC(1)(b) that the problem arises. Major long-term issues is defined in s 4 of the Act. It relevantly reads:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Thus, not every issue falls within the decision-making process even in relation to health. The decision must relate to an issue about care, welfare or development of a long term nature. There is no evidence here that would satisfy me that in relation to the broken bone in the foot of the child that it had welfare considerations of a long term nature even taking into account the fact that she is an athlete. As counsel for the Independent Children’s Lawyer observed, athletes do have these sorts of accidents.
Another example relied upon by the wife related to the husband taking the child for an ultrasound for abdominal pain. He did not tell the wife. That may be a courtesy issue but it hardly fits within the criteria to be contemplated as a major long term issue. To the extent that the wife, as a medical practitioner thought it did, I did not see how it could.
There was considerable evidence about the child’s potential puberty problems which I have already mentioned. In my view, I should accept the submission of counsel for the Independent Children’s Lawyer that the child as a young woman will make up her own mind who she wishes to speak to and confide in and, accepting that the husband has complied with the order about making a telephone available for the child, it is hard for me to find that this has anything to do with the case or justifies any variation of the orders.
The example also given related to the child’s religious observations but without that being canvassed in detail, it ought to be obvious that nothing I heard suggested that there can only be one ceremony or religious event. Again, as was observed by counsel, these parents do their parenting in very much an autocratic way and no amount of urging, training or counselling will change that in the relatively short window of opportunity they have before the child becomes an adult.
I find there is no basis to say that there has been a substantial change of circumstances arising out of those matters.
The fourth issue concerned the husband’s lack of support for the child’s sport T. That is not a new issue because it can clearly be seen in the documents relied upon by the wife and presented to the Court before the 2011 orders were made. Indeed, counsel for the wife submitted that it was not a new issue and had been a constant problem since separation let alone the orders.
The wife’s position was that the child had missed sessions and that was a breach of the orders. It was the wife’s evidence that he had refused to take her to a competition. Now however, although the orders refer to the husband having to commit to 16 hours maximum, it is possible that the child will be required to do 19 hours.
The problem in that area if it is a problem at all, will only arise in the period of time that the child is in the husband’s care. Nothing I read suggested that the child will be disadvantaged by missing some time. The orders which the parties drew in 2011 make clear their respective obligations. This too seems to me not to be a long term issue and certainly not a major one but rather, an example of where parents have different aspirations for their children. That was clear from the wife’s outline of case in the 2011 trial yet she compromised on the basis of specific orders relating to sport T. Nothing I saw has changed the concept of parenting even if the change that the wife refers to amounts to time.
Counsel for the husband noted that the wife had not brought any breaches against the husband for that part of the order. I would not encourage such an approach but it would seem there is a dispute about that in any event.
I also agree that the evidence and particularly that of the family consultant does not assist me to find out whether the child’s childhood world will come crashing down if she cannot do what seems to be a very intense sport T regimen in circumstances where the husband has a different view about what he would like her to experience.
Counsel for the Independent Children’s Lawyer observed that the wife relied upon evidence to show that a sport T club wanted the child to go elsewhere not because of the child but because they could not fulfil the expectations of the parents. If the child has to change clubs in those circumstances, it suggests to me that she is being used to satisfy the wife’s objectives rather than just enjoying being a child.
I find on the evidence that this sport T issue is nothing new and ought not be a basis to turn the child’s life (let alone that of the parties) upside down through litigation for that problem to be ventilated. Each party knows the views of the other and no new evidence has been presented that would change that. It is hard to see how it is in the child’s best interests for the Court to so regulate her life and reduce her father’s involvement because of the wife’s views about sport T.
The final issue concerned the child’s views. The wife pointed to evidence that in January and February the child had a period where she refused to speak to the husband. According to the wife and certainly corroborated by others, the child described her father as mean and said that she would run away if forced to go to her father. The father did not dispute that arose. It was the wife’s view that the time should be reduced but nothing in the evidence suggested that there has been a similar problem for the last few months. The husband’s evidence is that all is well in his household and the child is happy there.
Contrary to what the husband now sees, the wife says she observed tantrums on three occasions and statements by the child that the wife could not force her to go.
The dilemma is that I have no objective evidence of the child’s current views. To the previous expert, the child said that she was content to go to her father. The mother did not produce school reports to show adverse reactions to her lifestyle. No teacher was produced to say that the child had complained about her regime. None of the athlete people were able to say that the child does not want any association with her father or at least a reduction of time.
I must find that the child’s views are really unknown other than that I could surmise that she would be concerned about the parental conflict.
The submission of counsel for the Independent Children’s Lawyer was that there would be a significant impact on the child if this litigation went further. There would be more reports, more interviews and more obvious stress for her parents because of the litigation. Evidentiary burdens would require that schools and athletes become involved. That would mean that the child would become aware that she is the focus of the attention of other people. It is hard to see that being in her best interests when the types of changes proposed by the wife are not that significant. I agree with the Independent Children’s Lawyer that the wife’s conflict is what is spreading. She demands the husband’s instant involvement where he is reticent to have contact. The absence of contact does not seem to be having any significant disadvantage for the care, welfare and development of the child. If it was otherwise, the wife would have produced material from schools, friends, relatives and the sport T club.
Counsel for the wife submitted that the evidence needed to be forensically tested but to do that would only tell the Court what it already knows which is that the child is caught in the middle of a dysfunctional parenting conflict that she does not deserve.
The orders in 2011 were detailed after everyone knew what the problem was. To the extent that the wife complained that she was coerced into the orders, it is not a matter that I consider relevant because she well knew what she was putting the child into. Ironically, there is little objective evidence that the child has been adversely affected.
Thus, I have been made aware of the past circumstances that led up to the 2011 orders. I find it unlikely that those 2011 orders would be varied in a significant way on the evidence presented. To simply test forensically those disputed issues would be detrimental to the child for the reasons outlined above. Even if changes were contemplated, it is difficult to see on this evidence how they would be significant as distinct from minor tinkering.
In my view, it is the child’s best interests that there be no reconsideration of those issues because of what it would involve her in.
I find there is no sufficient evidence of a prima facie case of changed circumstances established to justify embarking on a hearing. I find in particular that because of s 69ZN, such a reopening of the facts of this case would not benefit the child and she is entitled to have a significant settling into the lives of both parents.
The application of the wife must fail and that of the husband therefore succeeds.
I will make provision for the parties to file submissions in relation to costs.

I certify that the preceding Seventy Seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 August 2013.

Associate:

Date: 23 August 2013

[2013] FamCA 634

23 August 2013

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