RUPERT & RUPERT
[2020] FCCA 1469
•5 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RUPERT & RUPERT | [2020] FCCA 1469 |
| Catchwords: FAMILY LAW – Parenting – application for summary dismissal – Rice & Asplund threshold issue – consent orders made – father relocates closer to child’s residence – allegations child’s educational, social and developmental needs unmet by home schooling – allegations consent orders are not being implemented. |
| 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 SPS & PLS [2008] FamCAFC 16 Stativa & Stativa[2015] FamCAFC 170 Tindall & Saldo [2016] FamCAFC 146 |
| Applicant: | MR RUPERT |
| Respondent: | MS RUPERT |
| File Number: | WOC 229 of 2020 |
| Judgment of: | Judge M Neville |
| Hearing date: | 1 June 2020 |
| Date of Last Submission: | 1 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Buckley of Thexton Lawyers |
| Counsel for the Respondent: | Mr Ford |
| Solicitors for the Respondent: | Maguire & Mcinerney Lawyers |
THE COURT ORDERS THAT:
The Initiating Application filed by the father on 27 February 2020 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Rupert & Rupert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 229 of 2020
| MR RUPERT |
Applicant
And
| MS RUPERT |
Respondent
REASONS FOR JUDGMENT
Mr Rupert (the father) and Ms Rupert (the mother) are the parents of X, presently aged 17 years, Y, presently aged 14 years and Z, presently aged 8 years.
On 3 December 2018 final orders were made, by consent, resolving parenting and property matters between the parties.
The father now seeks to vary those parenting orders insofar as they relate to Z. The mother seeks the application be summarily dismissed and invokes the principle in Rice & Asplund.
The application for summary dismissal was heard on 1 June 2020.
Background
The parents started to live together in 1998. They married in 2000. X was born in 2002, Y was born in 2005 and Z was born in 2012. All 3 children were born in the B region of New South Wales.
The parties separated in October 2018. At the time of separation, the family was living on the C Region in Queensland. Upon separation, the mother returned to City D, New South Wales, taking the children with her. The father remained on the C Region.
On 24 November 2018, the parties signed consent orders in relation to both property and parenting matters. On 29 November 2018, the parties filed an Application for Consent Orders together with the proposed orders. The consent orders were then made on 3 December 2018 (“the consent orders”).
The consent orders provided, relevantly:
a)That the parents have equal shared parental responsibility for the children.
b)That the children live with the mother.
c)X and Y spend time with the father at times they may nominate.
d)Z spend time with the father as agreed between the parents and, failing agreement:
i)From Friday to Monday at times when the father travelled to the B Region; and
ii)With such time to occur no more than twice each calendar month; and
iii)With the father to give the mother 7 days’ written notice of the time he intends to spend with Z.
The consent orders contained a notation that the mother would use her best endeavours to arrange for a private tutor on a weekly basis. It is not controversial that at the time the consent orders were made all of the children were being home schooled by the mother.
At some point after the making of the consent orders, the father moved from Queensland to the B Region in New South Wales. The travel time between the parties’ homes is now approximately 10 minutes by car.
The father has also formed a new relationship with Ms E, with whom he now lives.
On 27 February 2020 the father filed an Initiating Application seeking both interim and final parenting orders in relation to Z. The mother filed her Response on 15 April 2020.
By her response, she seeks summary dismissal of the Initiating Application. The matter was listed for hearing on 1 June 2020 on that application, with the mother invoking the principle in Rice & Asplund. The hearing proceeded by way of cross-examination of each party and submissions.
The competing applications
Orders sought by the parties
By his Initiating Application, the father seeks both interim and final orders.
On an interim basis, he seeks orders that Z attend for assessment with an educational psychologist or child psychologist for the purpose of determining whether he should continue to be home schooled or whether he should attend “mainstream” school.
On a final basis, he seeks to set aside the consent orders that provide for Z to live with the mother and that provide for the time Z spends with him and the conditions on that time. He seeks that the following orders be made in their place:
a)Z live in an equal time arrangement with the parents on a week about basis, with that arrangement to commence immediately upon the making of final orders;
b)That there be time between Z and each parent on special occasions, namely Mother’s Day, Father’s Day, Z’s birthday, each parent’s birthday, at Christmas time and over the Easter period.
On a final basis, the father also seeks that:
a)Any undertaking he has signed since 3 December 2019 be set aside; and
b)At the times Z is in his care, he be restrained from allowing Z to have contact with “F”[1] pending conclusion of an investigation into that person.
[1] As will be discussed later in these reasons, X has made an allegation of historic sexual assault by a person who is not a party to, or a child the subject of, these proceedings. The allegation is presently being investigated and the pseudonym F shall be used to refer to that person to protect their anonymity in these reasons.
In her Response, the mother also seeks interim and final relief. On an interim basis she seeks summary dismissal of the Initiating Application. In the event that relief is not granted, then on a final basis, she seeks that the Initiating Application be dismissed.
Material relied upon
As the mother is the moving party, I shall identify her material first. She relied upon the following documents:
a)Response filed 15 April 2020.
b)Notice of Risk filed 15 April 2020.
c)Her affidavit affirmed and filed 15 April 2020.
d)The consent orders of 3 December 2018.
She tendered the affidavit of the father affirmed and filed 24 November 2018 at the time the consent orders were made.
Her counsel had prepared a case outline document to which I had regard.
The father relied upon the following documents:
a)Initiating Application filed 27 February 2020.
b)Notice of Risk filed 27 February 2020.
c)His affidavit affirmed and filed 27 February 2020.
His legal representative had prepared a case outline document to which I had regard.
The Witnesses
The Court heard evidence from the mother and from the father.
In relation to their evidence I formed the view that each gave evidence in an open and relatively co-operative manner. Each was responsive to the questions asked of them. Whilst there are factual disputes between them, it is the case that different people will see, hear or otherwise perceive the same event in a different way, and I accept each of them as a witness of truth insofar as they perceive it.
The Law
The Court’s power to summarily dismiss proceedings arises at s 45A of the Family Law Act1975 (“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.
[9] Finally in Pelerman v Pelerman the Full Court, in setting out the principles articulated in Bigg v Suzi, said at [46]:
...The party seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(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 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
Z: his characteristics & needs
In order to properly understand the parties’ competing contentions and to determine this matter, it is necessary to spend some time on Z’s characteristics and needs.
Z is presently aged 8 years. Since his parents separated, he has lived with his mother and his older brothers X and Y.
The mother gives evidence that in 2015, Z was assessed as having a medical condition by geneticist Dr G. The father gives no evidence about this, but does not dispute it.
The mother gives evidence that Z has been diagnosed as having Autism Spectrum Disorder, Level 2 (“ASD-L2”). The father gives evidence that he believes Z does not have autism.
On 26 and 29 April 2016 and on 18 May 2016, Z was assessed by a multi-disciplinary team at Real Autism Care. A report was prepared and a copy was annexed to the mother’s affidavit. The assessment appears to have been comprehensive and there is nothing irregular on the face of the report.
The report states that from the information gathered through the assessment, Z’s presentation was considered to have been consistent with a diagnosis of ASD-L2.
On 19 July 2016, Dr H, consultant paediatrician wrote that in consultation with a registered psychologist, he had confirmed that Z has Autism Spectrum Disorder.
Notwithstanding the father’s disbelief, the evidence satisfies me that Z has been diagnosed with ASD-L2.
Z attends equine therapy to assist with his ASD-L2.
In addition to his diagnosis of ASD-L2, the mother gave evidence (in her affidavit and during cross-examination) and the father does not dispute that:
a)Over the years, Z has attended upon a gastroenterologist, a cardiologist and an occupational therapist.
b)He is under the care of an optometrist and an ophthalmologist.
c)He has difficulty with expressive language skills and attends speech therapy one day each week.
d)One of his legs is longer than the other and he requires orthotics. These cannot be worn with sports boots. He is under the care of a physiotherapist and podiatrist.
e)Z has also been diagnosed with faecal overload with chronic constipation and is under the care of GP Dr J.
Z is – and always has been – home schooled. He attends home school groups including a home school activities group for socialisation and a science group which is a particular interest for him.
The mother considers – but the father disputes – that Z is progressing well with his education having regard to his ASD-L2 and his expressive language difficulties.
The parties apparently agree that Z enjoys various sporting activities.
The parties’ positions
The mother contends that the Initiating Application should be summarily dismissed because any changes in circumstances since the time of the consent orders are not such as to warrant the re-opening of the parenting proceedings.
She contends that Z’s educational, social and developmental needs are well met and that Z is progressing well under the current regime. The consent orders provide for significant and substantial time between Z and his father and the orders are working as the parties intended when they were made.
The father contends that there have been changes in circumstances since the making of the consent orders that warrant the parenting proceedings being re-opened. In summary he contends that home schooling is not meeting Z’s education, social or developmental needs. He contends that notwithstanding the order for equal shared parental responsibility, the mother excludes him from decision making for Z. He further contends that the mother ignores or rejects most of his requests for time with Z. Since the consent orders were made the father has relocated from Queensland to New South Wales to be closer to the children.
He contends that Z needs psychological assessment to assess his suitability for mainstream school and to provide independent assessment of Z’s autism diagnosis. He further contends that Z’s best interests will be met by an equal time arrangement whereby Z spends week about time with each parent.
The past circumstances
It is important to commence by observing that orders of 3 December 2018 were made by consent. There was no hearing on the merits and the court did not make any findings of fact on disputed issues.
This does not mean that there is no evidence as to the circumstances in existence at the time those orders were made.
It is not controversial that at the time of separation, the family was living on the C Region in Queensland. Upon separation, the father moved to rental accommodation in Suburb K and the mother returned to the City D area in New South Wales, with the children.
The consent orders were made approximately 7 weeks after the parties had separated. Each of the parties gives evidence that there was negotiation between them about future parenting arrangements for the children. The mother engaged solicitors on 6 November 2018 to conduct the negotiations on her behalf. The father did not.
On 24 November 2018, the father affirmed an affidavit in which he deposed that he had been provided with a copy of the consent orders and despite being advised by the mother’s solicitor to seek independent legal advice regarding those orders, he chose not to do so.
Also on that date, the father signed the application for consent orders – including the statement of truth – confirming, relevantly:
a)He had read the application and the consent orders;
b)He was aware of his right to obtain independent legal advice;
c)The matters stated in the application within his personal knowledge were true and correct, and all other facts were true to the best of his knowledge, information and belief, and the proposed consent orders were supported by evidence.
d)He had read and considered sections 60B, 60CA, 60CC, 60CH, 60CI, 61DA, 64B, 65DAA, 67Z and 67ZBA of the Act.
During cross-examination, he accepted that these matters were true as at the date he signed the statement of truth.
In his affidavit evidence and during cross-examination, the father gave evidence that he felt pressured to agree to the consent orders and that he did not have the financial capacity to obtain legal advice.
He gave evidence that he wrote to the mother’s solicitor to seek additions to the proposed orders, but that his request was ignored.
In relation to the pressure he may have felt to sign orders he gives evidence that he felt, at the time, that if he did not sign the orders that the mother would prevent him from seeing the children.
Regrettably, these are pressures that many litigants feel at the time they are negotiating a family law dispute. It does not mean, however, that the agreements reached – even where such pressures are felt – are not in a child’s best interests. As to the matters he sought be included in the orders, I am unaware of what they are and why – if they were important matters to him – he did not press the mother’s solicitor for a reply to his request.
In relation to his financial capacity at that time, the application for consent orders indicates that he was of modest means, although I am unaware from his evidence what attempts – if any – he made to seek free legal advice from Legal Aid or from an organisation providing pro bono services such as a community legal centre.
In any event, notwithstanding any pressure the father or felt or his reasons for not seeking independent legal advice, I can only consider having regard to his concessions during cross-examination, that the matters contained in the application for consent orders were true for him at the time he signed that document and that he considered, at that time, that the orders were in Z’s best interests.
The application for consent orders reveals the following circumstances at the time the orders were made:
a)The orders providing for significant and substantial time between the father and the children were considered to be reasonably practicable in part because they would allow the mother to continue to home school the children as had been the case throughout the relationship.
b)Both parties were aware that Z was on the Autism Spectrum and had been diagnosed with a medical condition.
c)Z was in kindergarten and was being home schooled by the mother and was going well.
d)Neither party considered that the children had been or were at risk of being subjected to abuse, neglect or family violence.
e)Neither party considered that they or the other party had been subjected to or was at risk of being subjected to family violence.
f)Both parties agreed that no allegations of or risk of abuse had been made in any document filed or exhibited in the proceedings, any report prepared for the proceedings or any document produced on subpoena in the proceedings.
I consider that the above matters give the best indication of the circumstances that were in place at the time that the consent orders were made in 2018.
What are the changed circumstances
In the course of submissions, the father’s legal representative identified the following matters as representing the changed circumstances since the making of the consent orders:
a)He has relocated from Queensland to New South Wales and taken positive steps to engage in Z’s life.
b)Z’s educational needs are not being met and he is not meeting his educational milestones.
c)Z’s social needs are not being met through the mother’s determination to home school him and her refusal to engage him in extra-curricular activities proposed by the father.
d)Difficulties implementing the consent orders in relation to equal shared parental responsibility and time between Z and the father.
Turning then to each.
The father’s relocation & involvement in Z’s life
It is not controversial that the father has re-located from Queensland to New South Wales. There is now only a 10 minute drive between the 2 households.
Although the father does not state in his evidence when he relocated, during the directions hearing on 21 April 2020, his solicitor informed the Court the relocation occurred in May 2019 and so I assume that the relocation occurred over 12 months ago.
The father gives evidence in his affidavit that notwithstanding that he has relocated and is now self-employed with more time to spend with Z, he spends less time with Z now than he did when he lived in Queensland.
The consent orders provide for fortnightly weekend time between Z and the father, contingent upon the father being in the B Region area and providing 7 days’ written notice to the mother of his intention to spend time with Z.
In his affidavit, the father did not give particulars about the time he does spend with Z. I am unaware – from his perspective – as to whether he spends time regularly with Z as the consent orders provide for.
He gives evidence that on most occasions when he has requested time with Z, the mother has ignored or declined his request. He gives no further particulars other than to say that there have been at least 2 occasions that he mother has withheld contact until he agreed to sign specific undertakings in relation to the care and supervision of Z when in his care.
During cross-examination, the father was asked how it was that he could conclude that the mother had neglected the children when he was not in the mother’s household. He responded to the effect that he was able to see it for himself when the children came to him, neglected.
The mother gives evidence that she has facilitated time between Z and the father in accordance with the orders – that is, two weekends each calendar month – other than in July 2019 and in September – December 2019. She was not challenged about this during cross-examination.
It appears agreed between the parties that there have been two occasions when the mother has sought the father give an undertaking in relation to care and supervision of Z prior to time occurring.
The first of those occasions was in July 2019. At that time, the mother became concerned that the father was not giving Z medication that had been prescribed to him, that Z had wet the bed when in the father’s care and that Z was not wearing his glasses.
On 4 July 2019 the mother instructed her solicitor to seek an undertaking from the father that he would ensure Z wore his glasses, was administered medication as directed and that he wear pull-up pants at night-time. The undertaking was provided by the father on 22 July 2019. Upon receipt of the undertaking the mother instructed her solicitor to write to the father to confirm time would resume in accordance with the consent orders.
The second occasion was in August or September 2019. In mid-August 2019, X made a report of an alleged historic sexual assault upon him by his cousin “F”. The cousin is related through the father. Investigations were commenced by the Department of Communities and Justice.
On instruction, the mother’s solicitor wrote to the father on 9 September 2019 seeking an undertaking that the father would not bring Z into contact with F and would use his best endeavours to ensure that third parties also ensure that Z is not in contact with F.
The father sought legal advice about the undertaking. There were protracted negotiations between the parties’ legal representatives about the wording of the undertaking.
An agreed undertaking was provided by the father on 3 December 2019 whereupon the mother instructed her solicitor to write to the father’s solicitor to confirm that time would resume in accordance with the consent orders.
The issue of the time Z has spent with the father is important to determine because the father contends that time is not occurring in accordance with the consent orders and this, he argues, supports in part the re-opening of the parenting proceedings.
In determining the issue of the time Z has spent with the father I place significant weight on the mother’s evidence that she has facilitated time in accordance with the orders and that she has provided particulars of the occasions on which she has not facilitated time between Z and the father and her reasons for doing so. She was not challenged on these matters during cross-examination.
Whilst the father contends that the mother has – for the most part – ignored or declined his requests for time these matters were not put to the mother during cross-examination. Having regard to his evidence about being able to see that the children were neglected, I consider that he has, in fact, spent time with Z both prior to and since re-locating from Queensland to New South Wales.
On this issue, I prefer the mother’s evidence to the father’s and find that other than in July 2019 and between September 2019 and December 2019, it is more likely than not that Z has spent time with the father in accordance with the consent orders.
Insofar as the mother did not facilitate time during those periods, the evidence about her reasons for doing so is discussed earlier in these reasons. The matters reported by X about F are presently the subject of investigation by child protection authorities and the police. I consider that the mother acted reasonably in seeking the undertaking from the father.
It was not suggested to the mother during cross-examination that the events she complains of in July 2019 and in September 2019 did not occur, nor was it suggested to her that she was unreasonable for failing to facilitate time.
I find that the mother’s requests for an undertaking from the father in July 2019 and in September 2019 were reasonable requests and that it was not unreasonable to withhold Z from the father until those undertakings had been provided.
Z’s educational needs are not being met and he is not meeting his educational milestones.
It is not controversial that Z is home schooled. This has been the case since 2018 and for the entirety of his education.
In his affidavit evidence and during cross-examination, the father portrayed home schooling as something that the mother had “demanded” or something she had brought it upon herself to pursue. Given, however, that both parties acknowledged in the application for consent orders that Z was home schooled, and given that both parties considered that substantial and significant time would enable Z to be home schooled, I do not accept the father’s portrayal of the decision to home school Z and find that it was a decision made by both parents prior to or around the time of separation.
In his affidavit, the father gives evidence that he is concerned about the standard of education the mother provides to the children. He deposes that Z has stated that he has not completed any school work, that all he has been doing is watching videos and learning how to skip school. The father gives no evidence as to when Z purportedly made such statements to him.
To demonstrate his concerns, the father annexed to his affidavit a document he describes as “note Z wrote for his Christmas list”. The note annexed does not feature any coherent words. It does, however, feature letters and numbers that are clearly formed and legible. In his affidavit the father gives no evidence about the circumstances of the creation of the note. I do not know when it is written, who asked Z to write the note or whether he was given any assistance to write it. Absent any particulars about its creation, the evidence about the note does not satisfy me that Z is not meeting his educational milestones. Nor does it satisfy me that Z is unable to read or write.
It was suggested to the mother during cross-examination that Z is unable to comprehend a “Golden Book” which I understood to be a reference to a children’s book suitable for younger children who are learning to read. The mother did not agree with this proposition. There is no evidence in the father’s affidavit and he gave no oral evidence to support his contention in this regard. There is no evidentiary basis for me to conclude that Z cannot comprehend a child’s Golden Book.
The mother gives evidence that educationally, Z is progressing well. She considers that he is “tracking well” in comparison to other 8 year olds, given his autism and expressive language difficulties. I understood her to have accepted that Z may have had some struggles with reading and writing, but that since commencing speech therapy, these have dramatically improved.
The mother agreed during cross-examination that the father had approached her to enrol Z in what was described as “mainstream” education. The mother’s evidence was that she considered it, but opposed it. From her perspective, Z is progressing well with home schooling and it provides a flexibility that allows him to attend his various therapies and to otherwise have his medical needs met.
In his affidavit, the father deposes that he does not believe that Z has autism and he was “totally unaware” that Z had been diagnosed until he received the first of the letters from the mother’s solicitor seeking an undertaking. I infer that this is a reference to July 2019 when the mother sought undertakings in relation to the administration of medication and Z wearing glasses and pull-up pants as discussed earlier in these reasons.
I do not accept the father’s evidence in this regard. The application for consent orders singed in 2018 clearly identified Z’s autism diagnosis and that he was considered to have a medical condition.
In his affidavit material, the father gives no evidence as to how Z’s special needs would be met in a mainstream school and he gives no evidence as to how Z would progress better in mainstream education.
The mother does not hold teaching qualifications. She is trained to work as a health care worker. During cross-examination, she gave evidence that in 2010 she completed the first year of course of study at City D University, but did not complete the degree.
The mother is registered to provide home schooling through the New South Wales Education Standards Authority. She has annexed her certificate of registration for Z for years 1 to 3, valid until late 2021. This is a process which requires her to be assessed in relation to both the home school learning environment and the curriculum. Nothing from the evidence causes me to go behind the registration. I accept that the mother has met the necessary requirements for approval to home school Z.
The evidence does not allow me to conclude that Z is not meeting his educational milestones or that he is in any way subject to educational neglect.
Z’s social needs are not being met through the mother’s determination to home school him and her refusal to engage him in extra-curricular activities proposed by the father
The father is concerned that Z’s social needs are not being met. He contends that home schooling denies Z the opportunity to form friendships with other children. In his affidavit he describes this as the mother denying Z access to basic social interaction essential for his growth and development.
It was put to the mother during cross-examination that Z has no friends. The mother did not agree with this proposition and gave evidence that Z has friends from his home school groups, from equine therapy and in his local neighbourhood. He interacts with his cousins. She gave evidence that he attends playdates and enjoys excursions to science centres. Her evidence in this regard was immediate and comprehensive. She did not struggle to recall or identify opportunities for Z to socialise. I accept it as truthful and accurate. I do not consider that home schooling has deprived Z of the opportunity to engage with other children. I do not consider that home schooling denies Z access to basic social interactions essential for his growth and development.
In addition to his concerns about home schooling, the father expresses concern that Z is not engaged in extra-curricular activities, and that his attempts to enrol Z in sporting activities and to otherwise engage Z have been thwarted by the mother.
In relation to sports, the mother deposes that she has been resistant to Z participating in sports due to:
a)The need to pace Z’s activities arising from pain and fatigue associated with a medical condition; and
b)That she was unable to travel to training for Z and to take him to matches each Saturday; and
c)In more recent times, Z’s left leg is turning out, one leg is longer than the other and Z’s pain has increased. He requires orthotics which will not fit into sports boots.
The mother was not challenged on any of these matters. I accept her evidence. Insofar as she has been resistant to Z playing sports, having regard to these matters, I do not consider that resistance to have been unreasonable.
It was put to the mother during cross examination that she has been resistant to the father spending time with the children around hobbies and outings. The mother did not accept this and gave evidence that Z enjoys hobbies and outings with both the father and with herself. Again, her evidence on this issue was convincing and I accept it.
I do not consider that Z’s social and developmental needs are being neglected.
Difficulties implementing the consent orders in relation to equal shared parental responsibility and time between Z and the father Difficulties implementing the consent orders in relation to equal shared parental responsibility and time between Z and the father
The father contends that the consent orders have been contravened multiple times by the mother by excluding him in decisions in relation to Z’s care, welfare and development and by restricting Z’s time with him. He commenced these proceedings in preference to commencing contravention proceedings.
In relation to decision making, for the reasons given earlier, I find that the decision to home school Z was made by both parents prior to or around the time of separation. Whilst there has clearly been discussion on the issue of Z attending in a formal school environment, the father gives no particulars of the times he has raised this with the mother and the mother gives evidence that she considered the father’s proposals, but did not agree with them.
The mother gives evidence that she has provided to the father with medical information about Z and copies of the home schooling registration certificates. It was not put to her that those documents were not sent as she contends, and I accept her evidence on this issue.
It is difficult to ascertain from the evidence the nature and scope of the discussions or communication between the parents in the exercise of equal shared parental responsibility. Insofar as I have evidence about their communication, the mother contends that she receives multiple emails from the father and that she replies by email, keeping her emails direct and to the point, addressing only issues relating to the children.
She contends that the father has been harassing, derogatory and threatening in his communication in the past. The father denies this, however, in during cross-examination, he accepted that he had sent text messages including:
a)On 16 March 2019: “You are such an ignorant person and think your (sic) untouchable and up and beyond the law…many adjectives words come to mind to describe you…all I’ll say is karma will come to you what goes around comes around. How could a so called mother as you call yourself not give her children the best start in life…you want them to be like you selfish, lazy and money hungry” and “If you think this is the end think again this is just the beginning…I have made a formal complaint to you to NSW child protection services and also sort (sic) legal advise (sic) to get full custody of Z”.
b)21 April 2019: “Adjective words come to mind to describe you…but in essence you are not with the air you breath (sic) you’re a wast of space on this earth. By the way I know exactly where you live the number and name of the street your (sic) paying rent between 450 and 500 dollars a week…you think you can hide but you can’t…wait til the court date”.
The father denied that these messages were derogatory or expressly or impliedly threatening. I disagree and consider these messages to be both derogatory and threatening.
Insofar as the mother sets out other messages in her affidavit sent to her by the father in similar terms, it was not put to her that those messages were not sent.
The tenor of the messages sent by the father to the mother that are in evidence are unpleasant and hurtful. They do not demonstrate communication by the father that is conducive to the exercise of equal shared parental responsibility in a respectful manner and to the extent that the mother gives evidence that she keeps her email communication with the father “to the point” and about the children, I accept her evidence and consider this to be reasonable.
Whilst the father may not have had the level of involvement he might hope for in making decisions for Z and whilst he may not have achieved the outcomes in the decision making process he wanted, I do not consider that the mother has excluded the father from making decisions about Z.
In relation to the father’s contentions that the mother has failed to facilitate time, having regard to my earlier findings in these reasons, I do not consider he has made out those contentions.
Allegations of risk in the mother’s household
In addition to the above matters, it is clear from the notice of risk filed by the father that when he commenced these proceedings, he contended that Z was at risk in the mother’s care.
Although no submissions were made about alleged risks as being a basis on which the parenting proceedings should be re-opened, I infer from the notice of risk and from the tenor of his affidavit evidence that he considers this is also a reason to re-open the parenting proceedings.
In addition to the risks to Z’s educational, social and developmental needs as outlined above, in the notice of risk the father identifies the following matters:
a)Alleged verbal and emotional abuse by the mother to Z; and
b)Alleged physical abuse of Z by X.
Although no submissions were made for the father as to these particular risk issues, I consider it important to consider these matters in determining whether the parenting proceedings should be re-opened.
Insofar as the father provides any particulars of his allegations of verbal and emotional abuse, as best I can work out they appear at paragraph 66 of his affidavit at which he states “In addition to the allegations of abuse made by X I also believe that (the mother) is verbally abusive to the children, yelling and manipulating the children to the point of emotional abuse”. The father gives no information as to the basis for his belief nor any particulars of the verbal abuse he alleges.
During cross-examination, it was put to the mother that she often gets frustrated with Z and shouts at him. She disagreed with that proposition. It was also put to her that she yelled at Z. No further questions were put to her on this topic, and I accept her evidence.
The evidence does not satisfy me that Z is at risk of verbal or emotional abuse by the mother.
Whilst the father contends in the notice of risk that there is a risk of physical abuse of Z by X, he gives no evidence of this in his affidavit. I do not consider that there is any evidence to support his allegation.
Is there a likelihood of the orders being varied in a significant way?
On an interim basis, the father seeks that Z be assessed by a child psychologist. On a final basis, he seeks that Z spend equal time with each parent on a week about basis.
Taking the father’s case at its highest, other than an expression of his concern, there is no evidence that demonstrates that Z is not meeting his educational, social or developmental milestones having regard to his special needs.
The process of psychological assessment can be invasive and intrusive for a child. I do not consider that the father has made out a case for psychological assessment of Z.
Insofar as the father seeks an equal time parenting arrangement, there is no evidence to indicate that this is – or is likely to be – in Z’s best interests.
For the past 2½ years, Z has lived primarily with his mother and his brothers. He has been home schooled. He has spent regular weekend time with his father. The orders proposed by the father would significantly change those arrangements.
Z is a child with special needs. He is engaged in various therapies to assist him with his needs. The father gives no evidence about his knowledge of Z’s medical or therapeutic needs, nor does he give any commitment to meet them if he were to have care of Z on a week about basis. He gives evidence that he does not believe Z has ASD-L2 and does not make reference to a medical condition.
Communication between the parents is poor and the father does not trust the mother. During cross-examination the father was asked whether he had anything good to say about the mother to which he replied “No, I do not”.
Considered together, these matters do not support a case for an equal time parenting arrangement.
On the evidence available and taking the father’s case at its highest, whilst I consider that there have been changes since the making of the consent orders, I do not consider that those changes give rise to any likelihood of the parenting orders being varied in the way the father seeks, or in a significant way.
Conclusion
Section 45A(3) of the Act states that a proceeding does not have to be “hopeless” or “bound to fail” for it to have no reasonable prospects of success. Taking the father’s evidence at its highest, I am not satisfied that the father has made out a case for the interim or final relief he seeks.
If the parenting proceedings were to be re-opened, I do not consider it is likely that the current orders, entered by consent almost 2 years ago, would be varied in any significant way or at all.
I am satisfied, therefore, that the father’s Initiating Application has no reasonable prospect of success and that it should be summarily dismissed.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge M Neville
Associate:
Date: 5 June 2020
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