RUNDLE & JAYNES
[2020] FCCA 1629
•19 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RUNDLE & JAYNES | [2020] FCCA 1629 |
| Catchwords: FAMILY LAW – Parenting – application for summary dismissal – Rice & Asplund threshold issue – consent orders made in 2017 – father has re-partnered and had 1 child from that relationship – mother has re-partnered and has had 3 children from that relationship - where the father seeks that the child live in a week about arrangement from 2022 – where the mother is resistant to this. |
| Legislation: Family Law Act 1975 (Cth), s.45A Federal Circuit Court Rules 2001 (Cth) r.13.10 |
| Cases cited: Marsden & Winch [2009] FamCAFC 152 McEnearney & McEnearney (1980) FLC 90-866 Poisat & Poisat [2014] FamCAFC 128 Rice & Asplund (1979) FLC 90-725 Searson & Searson [2017] FamCAFC 119 SPS & PLS [2008] FamCAFC 16 Stativa & Stativa[2015] FamCAFC 170 Tindall & Saldo [2016] FamCAFC 146 |
| Applicant: | MR RUNDLE |
| Respondent: | MS JAYNES |
| File Number: | SYC 7123 of 2019 |
| Judgment of: | Judge M Neville |
| Hearing date: | 2 June 2020 |
| Date of Last Submission: | 2 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Williams of Williams & Co Solicitors |
| Counsel for the Respondent: | Ms Sproston |
| Solicitors for the Respondent: | Lourdes Legal |
THE COURT ORDERS THAT:
The mother’s application for summary dismissal of the father’s Amended Initiating Application filed on 24 February 2020 be dismissed.
THE COURT ORDERS, IN CHAMBERS, THAT:
Pursuant to s.11F of the Family Law Act1975, the parties attend a Child Dispute Conference with a Family Consultant nominated by the Child Dispute Section on Level 2 in this Registry on 4 September 2020 at 10.00am for the Applicant and 11.00am for the Respondent and pursuant to section 11C of the Act, such conference be reportable. The parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person, the consultant must report the failure to the Court.
IT IS NOTED that publication of this judgment under the pseudonym Rundle & Jaynes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7123 of 2019
| MR RUNDLE |
Applicant
And
| MS JAYNES |
Respondent
REASONS FOR JUDGMENT
Mr Rundle (“the father”) and Ms Jaynes (“the mother”) are the parents of X (“X”), presently aged 7 years.
On 8 February 2017, final orders were made, by consent, resolving parenting matters between the parties.
The father now seeks to vary those parenting orders such that X eventually live with the parents in an equal time and week about arrangement.
The mother seeks the application be summarily dismissed and invokes the principle in Rice & Asplund.
The application for summary dismissal was heard on 2 June 2020.
Background
The parties married in 2011 and X was born in 2013. The parties separated on 22 July 2015 when X was aged 2 years and were divorced on 19 November 2016.
The parties entered into final parenting orders, by consent, on 8 February 2017 when X was aged 3 years and 9 months. The consent orders provide that X spend time with the father during school term each alternate weekend from after school on Friday until the commencement of school on Monday, and on one occasion each fortnight from after school Thursday until the commencement of school on Friday. The orders provided that X would spend half of school holiday periods with each parent. The orders otherwise made provision for time between X and each parent on special occasions.
Since the making of the orders, there have been changes in the lives of each of the parents and, therefore, in X’s life.
The father is now married to Ms B. They have lived together since 2017 and were engaged in 2018. They plan to be married in 2020. They have one child of their relationship – X’s sister C, born in 2019.
The mother is now married to Mr D. They have lived together since 2017. They have 3 children of their relationship – X’s sister E, born in 2018, and his brothers F and G who are twins, employ in 2019.
X has now commenced school, attending the H School, where he is in Year 1.
The father commenced these proceedings on 23 October 2019. He filed an Initiating Application in the Family Court of Australia seeking that X live with the parties on an equal basis. The matter was transferred to the Federal Circuit Court of Australia on 2 December 2019.
The matter was listed for first return in the Federal Circuit Court on 28 January 2020 and filing directions were made on that day.
On 2 February 2020 the father filed an Amended Initiating Application.
On 2 April 2020 the matter was listed for mention. On that date, the mother filed her Response, Notice of Risk and affidavit. Given it was apparent that she sought summary dismissal of the father’s application raising the principle in Rice & Asplund, the matter was listed for hearing on that discrete issue.
That hearing was conducted on 2 June 2020.
The competing applications
The mother seeks summary dismissal of the Amended Initiating Application filed by the father.
The father seeks to re-open parenting proceedings and seeks orders that X gradually move to an equal time, week about parenting arrangement.
Material relied upon
The father relied upon:
a)Amended Initiating Application filed 24 February 2020; and
b)His affidavit affirmed 21 February 2020.
The mother relied upon:
a)Response filed 2 April 2020;
b)Notice of Risk filed 2 April 2020; and
c)Her affidavit filed 2 April 2020.
Both parties’ legal representatives had prepared case outline documents to which I had regard.
The Law
The Court’s power to summarily dismiss proceedings arises at s 45A of the Family Law Act 1975 (“the Act”) and at rule 13.10 of the Federal Circuit Court Rules 2001 (“the Rules”).
Section 45A of the Act provides, relevantly:
Summary decrees
…
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:(a) hopeless; or
(b) bound to fail;to have no reasonable prospect of success.
Rule 13.10 of the Rules provides:
The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:
(a)The party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
The Court is to take a cautious approach to summary dismissal of proceedings. As was observed by the Full Court in Stativa & Stativa [2015] FamCAFC 170:
[8] The power to summarily dismiss an action must be rarely and sparingly used (see Pelerman v Pelerman). The Full Court discussed the power of the court to summarily dismiss proceedings in Bigg v Suzi and adopted the articulation of the principles of Kirby J in Lindon v The Commonwealth (No 2) which may conveniently be summarised thus:
· It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
· The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
· That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
· If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
· Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
· The “guiding principle” is doing what is just. Kirby J said at [6]:
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.”
(citations omitted)
The need to determine whether there has been a change of circumstances before re-opening parenting proceedings, is one which arises as a result of the principle set out by the Full Court in Rice & Asplund (1979) FLC 90-725. In that decision, Evatt CJ said:
(The Court) should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation…for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstances 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.
This has become known as the “rule” or the principle in Rice & Asplund.
The rationale for the rule is to give expression to the principle that there must be an end to litigation, particularly in relation to children (see McEnearney & McEnearney (1980) FLC 90-866 and SPS & PLS [2008] FamCAFC 16).
It is not enough for a party to establish that there has been a change in circumstances. The court is required to consider the nature and quality of the change. As was observed by the Full Court in Tindall & Saldo [2016] FamCAFC 146 (at [88]):
“the relevant threshold determination is not met merely by a conclusion that ‘fresh evidence’ exists. It is, as the cases demonstrate, the nature and quality of the change in circumstances that is relevant”
In that case, the Full Court found (at [90]) that the primary judge had erred focussing on:
“whether there had been changes in circumstances, rather than considering them against the rationale that the identified change must justify a reconsideration of the issues”.
The “rule” in Rice & Asplund is a manifestation of the best interests principle (see SPS & PLS and Marsden & Winch [2009] FamCAFC 152 (at [47]).
It may be considered at a preliminary stage or after a final hearing (see Marsden & Winch and Poisat & Poisat [2014] FamCAFC 128). Whether it is determined at a preliminary stage or after a hearing, as the Full Court observed in Poisat (at [41]):
The underlying intention is the same and is grounded centrally in the best interests consideration…: the rule’s application recognises the benefit of the finality of litigation but also recognises that considerations acutely relevant to a child’s best interests can change, including, for example, by reference to the child’s age and level of maturity.
Where the principle is determined at a preliminary stage, an application should not be dismissed for some technical reason. Rather, if an application is dismissed, it is because assuming the evidence of the applicant is accepted, insufficient change of circumstance has been demonstrated such as to justify embarking on a hearing. The underlying conclusion will be 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 (see Searson & Searson [2017] FamCAFC 119; Marsden & Winch).
In determining the application, the court must look at:
a)The past circumstances, including the reason for the decision and the evidence upon which it was based;
b)Whether there is a likelihood of orders being varied in a significant way as a result of a new hearing;
c)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child caused by the litigation itself. Thus, small changes may not have sufficient benefit to compensate for the disruption caused by significant litigation.
Marsden & Winch
The Hearing
As the Rice & Asplund principle was raised as a threshold issue, the matter was listed for hearing on this as a discrete and preliminary issue. Neither party required the other for cross-examination and the matter proceeded by way of submissions on the evidence filed.
The parties’ positions
The mother seeks that the father’s Amended Initiating Application be dismissed. She does not agree that all of the changes the father contends have occurred have, in fact occurred. In any event, to the extent there have been changes, the mother’s position is that they fall within the ordinary exigencies of life and do not warrant a re-opening of the parenting proceedings or would not otherwise result in any significant variation of the consent orders in circumstances where X is already spending substantial and significant time with the father.
The father seeks, on a final basis, that there be a gradual increase of his time with X culminating in an equal time, week about arrangement in 2022. He seeks interim orders immediately that X spend one additional evening with him each alternate week with time to commence from after school on Thursday instead of Friday. He contends that X’s time with him will never progress beyond what is specified in the orders, because the mother is resistant to negotiation or discussion about changing X’s parenting arrangements.
Insofar as he seeks that X move to an equal time, week about parenting arrangement, he contends that this is a significant variation to the present arrangement, and that the court does not need to be satisfied at this preliminary stage that his application will definitely succeed, but rather that it has some prospects of success.
The past circumstances
It is important to commence by observing that the 2017 orders were made by consent. There was no hearing on the merits and the court did not make any findings of fact on disputed issues. The parties did not have the benefit of a family report or child dispute conference memorandum to provide any expert opinion or guidance as to what might be in X’s best interests.
This does not mean that there is no evidence as to the circumstances in existence at the time those orders were made.
The following matters are not controversial as between the parties.
At the time of the consent orders, X was aged 3 years and 9 months. Since separation, he had been in his mother’s primary care.
The evidence is not precise on the point, but it appears that shortly before or shortly after the consent orders were made, each of the parties embarked on new relationships. The father gives evidence that in June 2016, he commenced a relationship with Ms B. The mother gives evidence that at the time the consent orders were made, she was single. Given her evidence that she informed the father after in mid 2017 that she was seeing Mr D, it seems that if the relationship was not afoot at the time the consent orders were entered, it commenced shortly thereafter.
It appears to be the case, however, that at the time of the consent orders, neither parent was living with a partner.
What are the changed circumstances?
The father contends that there have been significant changes since the consent orders were made. Specifically, he contends:
a)X has commenced at school and is now 7 years old. He has developmentally progressed.
b)Each parent has re-partnered, has started to live with their new partners and each has had children, meaning that X’s family relationships have expanded.
c)There have been changes in each parent’s residence.
d)In mid 2019, the father’s parents – X’s paternal grandparents – moved into the house next door to the father.
e)Communication between the parents is difficult and the mother does not properly consult the father in relation to major long term decisions about X.
f)The consent orders did not make provision for long-term parenting arrangements for X.
Turning then, to each.
X’s development
X commenced Kindergarten at H School Preparatory School in 2019. He had attended an Early Learning Day Care centre that was a feeder centre into H School in 2018.
X’s school report for Semester 2, 2019 was in evidence. It indicates that X was doing well at school and had developed friendships with many boys across the grade. He was described as a “bright and cheerful” student with “an enduring personality” who had matured throughout his first year of school. He class teacher observed that he had learned kindness, demonstrated respect to his peers and teachers and learned strategies to “bounce back” from difficult situations. These are very positive comments and indicate that X is on a positive trajectory.
At the time the consent orders were made, he was 3 years and 9 months. Now aged 7 years, he is at a different developmental stage of his childhood.
The evidence indicates that when he was younger, the mother considered changes in X’s routine were disruptive for him and when he spent time with his father outside of his routine he would display challenging behaviours upon return to her care. So much is evident from emails sent between the parties in 2016.
It is to be expected that young children can display challenging behaviours when out of their routine. Where a child lives primarily with one parent it is often the primary caregiver who observes those challenging behaviours. The non-primary parent may not see challenging behaviour and may not accept or believe the other parent’s account.
As children get older, however, and particularly once they commence at school, such behaviours may abate as the child gets used to longer periods of separation from their primary caregiver throughout the school day and as the child otherwise starts to grow up and learn to navigate relationships and changing situations and environments.
X is now in Year 1, and is used to attending school. In addition to learning to cope with school attendance and routines, he has also had to adjust to the expansion of his mother’s household to include a younger sister and two younger brothers and changes to his father’s household of a younger sister.
It is reasonable to expect that he is now more accustomed to changes to his routine and better equipped emotionally to deal with such changes than might have been the case at the time the consent orders were entered.
New partners and new siblings
The father gives evidence that in mid 2016, he commenced a relationship with Ms B. It was submitted on his behalf that he was “single” at the time the consent orders were entered. Given, however, his evidence that he and Ms B commenced a de facto relationship in 2017 this is not a submission I accept.
Clearly, the father and Ms B were in a relationship at the time the consent orders were entered. Given that they started to live together 3 months after the consent orders were made, I consider it more likely than not that at the time of the consent orders, their relationship involved a degree of commitment beyond a mere “dating relationship” as had been suggested on his behalf in submissions.
The father and Ms B started to live together in 2017. I infer, therefore, that shortly after the consent orders were made, when X spent time with the father it included Ms B. The father and Ms B had a child in 2019 – X’s sister C. X’s paternal family has changed significantly since the consent orders were entered into.
The mother does not give evidence as to when it was that she commenced a relationship with Mr D, however, in 2017 she informed the father that she was seeing Mr D and so I consider if the relationship was not already on foot at the time of the consent orders, it commenced shortly thereafter.
The mother and Mr D started to live together in 2017, 6 months after the consent orders were entered and their child E was born 10 months later in 2018. The twins F and G followed in 2019.
Looking at these circumstances from X’s perspective, within the 2½ years after the consent orders were made, each parent had introduced a new partner to him, and he was now an older brother to 4 younger siblings. This, to my mind, is a significant change.
Not only does he have new sibling relationships to manage, but it must be the case that he has had to adjust to each of his mother and his father sharing their time and attention with new partners and new children.
It was suggested by the father in his evidence, that the 3 new children in the mother’s household means that she is not able to devote the same amount of time and attention to X. The father suggested that his home environment is quieter and less hectic than the mother’s. At this stage I do not accept those contentions. At the time of the consent orders, the mother was working in paid employment. She gives evidence that she is now at home working as a full time mother. I therefore do not accept that she is not available to X. In addition, I do not consider that the father is in a position to be able to comment on how “hectic” the mother’s household may be.
I consider, however, that there has been a change in each parent’s household and from X’s perspective, I consider that this change has been significant.
Changes to residences
It is not controversial that each of the parents has moved house with X. The mother has moved from Suburb J to Suburb K, then to Suburb L and then back to Suburb J. She and Mr D plan to move to Suburb M later this year. All of the moves made by the mother have been within the Sydney metropolitan area and have not significantly affected the ability of X to spend time with the father.
The father has moved house from Suburb N to Suburb O, where he and Ms B remain as at the date of hearing. These moves have not significantly affected the ability of X to spend time with the father.
Moving house can be disruptive. In and of themselves, they do not create a significant change in circumstances, however, they have certainly added to the changes to which X has had to adjust over the past 3 years.
X’s paternal grandparents move next door to the father
The evidence indicates that X’s paternal grandparents moved into the house next door to the father’s home in 2019.
It was not controversial as at the date of hearing, that they had since moved out and were residing elsewhere, apparently due to the COVID-19 pandemic.
As I understand the evidence, they had been living on the Region P, in reasonable proximity to the Sydney metropolitan area. They apparently enjoy a good relationship with X and enjoy regular time with him.
Even if it were the case that they continued to live next door to the father, I do not consider that this is a significant change in circumstances since the consent orders were made.
Communication between the parents is difficult and the mother does not properly consult the father in relation to major long term decisions about X.
Each party annexed to their affidavit many pages of email or text message exchanges between them. Whilst there is evidence of some courteous and functional communication, the overall tenor of the parties’ communication is not pleasant.
Much of the communication between the parties is peppered with sarcastic comments or jibes, with the parties going back and forth about what was said or done in earlier emails, quoting each other and pointing out typographical errors in the other’s communication when the intention of the communication was clear. Each of the parents has descended – on occasion – into making derogatory comments or name calling.
Communication between the parents is indeed difficult. It appears to have long been the case. To the extent however that the evidence reflects courteous or functional communication this appears primarily to have pre-dated the consent orders.
The father’s complaints about the mother’s lack of consultation appear to both pre-date and post-date the making of the consent orders. In this regard, little seems to have changed.
One of the significant disputes in this regard arises in relation to X’s enrolment into a Day Care Centre which was a feeder centre into the H School. The father contends that the mother enrolled X without consultation and that it was never agreed that X would attend the H School for schooling. The mother contends that she informed the father and he was in fact aware of this.
The evidence on this issue does not allow me to determine which parent’s account ought be preferred. There is evidence to indicate that the enrolment into the Day Care Centre and then into H School was foreshadowed by the mother in emails sent in February 2018 and that the father had sent a text message suggesting that X be placed on the “list” at “H School”. There is also communication from the father to the mother around that time in which he states that when agreeing upon H School as the new day care arrangement, he did not assume they were making a long term commitment “to H School”.
In his Amended Initiating Application the father abandoned his application for orders about the specific school X attends. I do not consider that this particular issue has any significance on the present discrete issue I am required to determine. Nor do I consider that the issue of what consultation has (or has not) occurred in relation to other decision about matters such as physical health, diet or dentistry. The parents currently hold equal shared parental responsibility for X. The father does not seek to disturb this.
The orders did not make provision for long term parenting arrangements for X
The father contended that the consent orders did not make provision for longer term parenting arrangements for X. I do not accept that this is the case.
It is clear that the consent orders reflected that consideration had been given to increasing the time between X and the father once X had commenced school. Provision was made for school holiday time in the long school holiday period to increase in each of 2018, 2019 and 2020. I consider that the consent orders reflected what each party considered was in X’s best interests at that time and were intended to be final orders to provide until he was 18 years of age.
Is there a likelihood of the orders being varied in a significant way?
At this preliminary stage, it is not possible to say, definitively, whether the parenting orders would be changed as sought by the father, or at all.
It was submitted for the father that he does not want to open up the parenting proceedings in totality, but simply wants to litigate his application for a gradual increase in the time that X spends with him culminating in an equal time, week about arrangement in 2022.
Counsel for the mother submitted – and I accept – that it is not possible to limit the scope of the proceedings once re-opened. If the parenting proceedings are re-opened, the mother may consider that it is in X’s best interests that the consent orders are set aside and that different orders are made. If the proceedings are re-opened I cannot – and should not – restrict her in seeking the parenting orders that she considers will best promote X’s interests.
X is now a 7 year old boy. He has commenced at school and is doing well. The difficulties he may have had in adjusting to changes in his routine when he was aged 3 years and 9 months are unlikely to arise in the same way now as they might have then.
It is clear that the father has, for some time, wanted to discuss the possibility of X moving into an equal time arrangement.
The father contended, amongst other matters, that X needs “father and son time” with him to ensure that he learns how to fix a flat tyre, hammer a nail, put up a tent and use other tools, there is no evidence before me to suggest that these are skills that X could not learn in the mother’s household nor is this a reason that would support a move to an equal shared arrangement.
However, there are other benefits that may accrue to X if he were to spend more time with the father, and that is progressing and developing his relationships with his step-mother and sister.
The consent orders make provision for other time as agreed. The father has sought to reach agreement with the mother, although she appears to have been resistant to discussing the possibility of any increase to X’s time with his father beyond what is provided for in the orders.
On 14 November 2017, 9 months after the making of the consent orders, the mother sent an email to the father in the following terms:
“Thank you for your commentary and assumptions. It is not out of spite. We won’t be in Suburb K for much longer, as such, it would not be appropriate to start such time when the arrangements would change. I am also not open to you spending more time with X other than as provided for in the orders in circumstances where I have a number of concerns about you.”[1]
[1] Mother’s affidavit, 02/04/20: p. 87
In her affidavit filed in these proceedings, some 2½ years later, she deposes as follows:
[103] I have a number of concerns in relation to Mr Rundle’s parenting of X, including but not limited to Mr Rundle attempting to undermine my relationship with X and safety issues. In the event this litigation continues, I will canvass these issues at length.
[104] I am not of the view, that it is in X’s best interests to spend any more time in Mr Rundle’s care, than he already does, hence why I have not entertained the requests from Mr Rundle to discuss a change to the orders or attend mediation”.
Although her affidavit and the annexures to it reflects some concerns about diet, supervision, and “random strangers” in the father’s home, I am unaware as to the particular concerns the mother has about “safety issues” and I am unaware as to the ways in which the mother contends the father is undermining her relationship with X. The Notice of Risk filed by her on 2 April 2020 does not disclose any allegation by her that X has been or is at risk of abuse or family violence or that he is at risk because of parental mental ill health, alcohol or drug abuse or serious parental incapacity, nor that he is otherwise at risk.
Insofar as the mother has expressed concern that the father’s partner or his parents are doing school drop offs or pickups or assisting X with his homework, I consider this to be part and parcel of life in a blended family and insofar as X spends time in the father’s household, he spends time not just with the father, but with his step-mother and his sister C.
Whether or not the mother’s concerns in relation to the father’s parenting capacity have merit is not something that I can determine within the determination of this discrete issue. It appears, however, that the mother’s mind is closed to any alteration of the arrangements for time between X and the father beyond what is specified in the orders. This means that on the available evidence, there is no prospect of X’s time with the father changing in the future. It logically follows that his opportunity to develop his relationships with his father and step-mother, but particularly with his step-sister, will be confined to alternate weekends, one night each fortnight and school holiday periods.
It was suggested by the mother that the current relationship between the parents is so poor as to suggest an equal time parenting arrangement could not work. She contends that they have been unable to demonstrate that they have the capacity to communicate about the things that are likely to arise in such an arrangements such as the exchange of school equipment, items left behind in one household and the like. This may be the case, but I cannot conclude that this is so.
I consider that it is possible that the orders may be varied in a significant way. I am unable to conclude that an equal time arrangement as proposed by the father is not achievable or will not work in X’s best interests.
Conclusion
In these proceedings, the father contends that the landscape is sufficiently different today than at the time of the consent orders to warrant a re-opening of the matter. The composition of X’s maternal and paternal families is significantly different to when the consent orders were made. X has now started school and has matured and developed in the 3 years since the orders were made. The father suggests that there is little – if any prospect – of X spending time with him other than in fairly strict compliance with the consent orders as the mother is unwilling to depart from those orders.
The mother suggests that changes in a child’s life such as parents re-partnering, having children and moving house are part of the ordinary exigencies of life and do not warrant a re-opening of the parenting proceedings. She contends it is not in X’s best interests to embark on litigation that will impact upon him and each of his parents. She contends that the consent orders were agreed upon by both parents and reflected what they considered to be in X’s best interests and that those orders should remain in place.
Whilst I accept that changes to relationships and households are part of the exigencies of life, I consider that for X the changes have been significant because they have occurred on both the maternal and paternal sides of his family. His world in both his mother’s and his father’s household is now very different to the way it was in February 2017.
Three years have passed since the orders were made. X has undergone significant developmental changes. He has commenced school and by virtue of this, at least, must be better able to sustain separation from his primary carer. He has new relationships to explore and enjoy – not only with his mother’s new partner and their children, but with his father’s new partner and his sister C.
It may well be the case that X can sustain and benefit from an increase in time with his father or even an equal time arrangement. I cannot determine that at this time. However, the evidence does not indicate any likelihood that X’s time with his father will progress beyond what is provided for in the consent orders even if it might be in his best interests.
I am satisfied that there have been significant changes since the making of the consent orders. I am not satisfied that there are no reasonable prospects of success of the father’s application.
I accept that if the parenting proceedings are opened, it will likely impact on X in that he may have to attend for family report interviews and there is a possibility that an Independent Children’s Lawyer will be appointed for him. This will bring him into contact with the family law system. However, he is fortunate insofar as in the previous proceedings, he was not involved in any process of assessment or interview. It is also my expectation that these parents to do their utmost to shield him from the litigation and as much as further litigation may impact upon each of them emotionally and financially, they will do their utmost to shield X from it.
Accordingly I dismiss the mother’s application for summary dismissal of the father’s Amended Initiating Application.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge M Neville
Associate:
Date: 19 June 2020
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